[00:00:00] Speaker 04:
All right, our next case is 23-32-32, Cole versus Citizen Medical Center.

[00:00:08] Speaker 04:
Mr. Sternberg.

[00:00:12] Speaker 00:
Thank you, Your Honors.

[00:00:12] Speaker 00:
May it please the Court?

[00:00:13] Speaker 00:
I'm Jonathan Sternberg, and I represent the appellant, Ricky Cole.

[00:00:16] Speaker 00:
And I'd like to reserve three minutes for rebuttal, if at all possible.

[00:00:20] Speaker 00:
After ascertaining that Mr. Cole had an emergency medical condition that emergency room staff suspected, and that ultimately turned out to be a ruptured eye globe, which means

[00:00:29] Speaker 00:
an actual rupture in the eyeball itself.

[00:00:32] Speaker 00:
The Appley Hospital, in this case, violated its own procedures in failing to forward Mr. Cole's results and records to a qualified specialist physician for diagnosis, failing to transfer him to a facility capable of diagnosing and treating that injury, and failing to stabilize him before releasing him, reasoning in testimony that's in the record that because he couldn't pay, it could, quote, waste a surgical team

[00:00:58] Speaker 00:
and possibly incur a, quote, five-figure medical bill.

[00:01:01] Speaker 01:
Counsel, Judge Teeter said that the failure to forward the CT scan results was a de minimis violation.

[00:01:08] Speaker 01:
Why is that wrong?

[00:01:10] Speaker 00:
So the hospital in this case, and I'll get, this is the preface for answering that, Your Honor.

[00:01:16] Speaker 00:
The hospital in this case minimizes almost to nonexistence the failure to stabilize issue.

[00:01:22] Speaker 00:
It's not de minimis here because the, so Judge Teeter said, and the hospital argues,

[00:01:28] Speaker 00:
that because they didn't know that this was a ruptured eye globe, that they weren't positive of that, there wasn't an emergency medical condition.

[00:01:37] Speaker 00:
In fact, Judge Teeter, even on page 20 of her summary judgment order, says the hospital did not determine the plaintiff had an emergency medical condition.

[00:01:46] Speaker 00:
The problem is diagnosing the actual ruptured globe wasn't the emergency medical condition.

[00:01:52] Speaker 00:
They had ascertained, and in fact, their corporate representative

[00:01:56] Speaker 00:
Niblock, it's on page 109 of volume 9 of the record, that's one of those quad pages, it's sub-page 5, testified specifically that they did ascertain he had an emergency medical condition.

[00:02:09] Speaker 00:
Having ascertained that, the question of whether they could release him in stabilized condition went to what was this condition?

[00:02:18] Speaker 00:
And once they had received, so initially they suspect that it's a ruptured eye globe.

[00:02:23] Speaker 00:
They sent him out for a CT scan.

[00:02:25] Speaker 00:
In the middle, this unqualified non-physician optometrist says, oh, I think it's a scratched cornea.

[00:02:31] Speaker 00:
But then at 5 26 PM, which is before he was released, a couple of hours before he was released, the results of the CT scan come back.

[00:02:40] Speaker 00:
They're forwarded to a Dr. Kirk Patrick, who is a consulting physician up in Nebraska.

[00:02:44] Speaker 00:
And Dr. Kirk Patrick says, looks to me like there's a possibility of a ruptured eye globe here.

[00:02:51] Speaker 00:
Dr. Kuhlman, who is the O.R.

[00:02:54] Speaker 00:
physician or the E.R.

[00:02:57] Speaker 00:
physician who was on call that day, was a family medicine specialist, testified himself in his own deposition that he couldn't tell at the time that Mr. Cole was released that Mr. Cole actually was stable because he wasn't capable of ascertaining that.

[00:03:14] Speaker 02:
Is there a requirement to stabilize if you have not determined that there was a

[00:03:20] Speaker 02:
a problem when you only thought there was a possibility of a problem?

[00:03:25] Speaker 00:
Sure.

[00:03:26] Speaker 00:
That's a great question, Your Honor.

[00:03:28] Speaker 02:
Does that trigger the obligation or not?

[00:03:30] Speaker 00:
It does.

[00:03:31] Speaker 00:
And I'll explain why.

[00:03:32] Speaker 02:
And any possibility or probability?

[00:03:35] Speaker 02:
How would you articulate when that is triggered?

[00:03:37] Speaker 00:
Sure.

[00:03:38] Speaker 00:
So it's triggered when

[00:03:41] Speaker 00:
The results show that there is a possibility that there is this debilitating problem.

[00:03:46] Speaker 02:
Possibility.

[00:03:47] Speaker 02:
But 1%?

[00:03:48] Speaker 02:
You're using the word possibility, meaning it's not impossible?

[00:03:51] Speaker 00:
No.

[00:03:51] Speaker 00:
No.

[00:03:52] Speaker 00:
I would go off what the actual medical record here said.

[00:03:55] Speaker 00:
So here, the report from the radiologist says margins of right globe are somewhat irregular, some degree of right globe rupture possible.

[00:04:05] Speaker 00:
And he, of course, then suggests that there should be something further.

[00:04:07] Speaker 02:
But he doesn't define what he means by the word possible either.

[00:04:10] Speaker 02:
Sure.

[00:04:13] Speaker 02:
I have difficulty believing that it could be an obligation to stabilize every non-impossible condition that might be encountered by all these rural hospitals with such limited facilities.

[00:04:26] Speaker 00:
Sure.

[00:04:26] Speaker 00:
So here, Your Honor, remember, of course, we're in summary judgment.

[00:04:30] Speaker 00:
And the issue is viewing the evidence favorably to Mr. Cole and drawing inferences in his favor.

[00:04:38] Speaker 00:
Here, from Dr. Kuhlman's testimony, that because he wasn't capable of ascertaining this, he didn't know whether Mr. Cole was stable when he was released.

[00:04:48] Speaker 00:
That alone is an Imtala violation.

[00:04:50] Speaker 00:
In our briefs, we cite, and it's a pity there are no 10th Circuit cases directly about this issue.

[00:04:56] Speaker 00:
I certainly did look for them before this.

[00:04:58] Speaker 00:
There's only 21

[00:04:59] Speaker 00:
10th Circuit cases ever even citing EMTALA.

[00:05:02] Speaker 00:
We cited a couple of cases, two from the District of Kansas, one's Palmer from 2017, one is Scott from 1997.

[00:05:08] Speaker 00:
So in Scott, which I think answers this question, they were aware that the patient had a cardiac issue when he came into the emergency room.

[00:05:16] Speaker 00:
They hadn't yet determined whether it was internal bleeding or something like that.

[00:05:21] Speaker 00:
It ultimately wound up being a bleed.

[00:05:24] Speaker 00:
But they released the patient without ensuring that that original condition, what he came in with, was stable.

[00:05:32] Speaker 00:
Here, based on the information available to the emergency room doctors, the emergency room doctor singular was Dr. Kuhlman, even he wasn't sure that Mr. Kuhl was stable when he was released.

[00:05:45] Speaker 00:
And that is the bottom line EMTALA requirement.

[00:05:50] Speaker 00:
The hospital has to determine whether an emergency and emergency medical condition exists.

[00:05:55] Speaker 00:
I think it's undisputed here, despite what Judge Teeter said at the end of her judgment, that they determined an emergency medical condition exists.

[00:06:02] Speaker 01:
Did you argue in the district court that the possibility of a ruptured globe is an emergency medical condition?

[00:06:10] Speaker 00:
No.

[00:06:12] Speaker 00:
I'm not even arguing that here, Your Honor.

[00:06:15] Speaker 00:
The emergency medical condition is Mr. Cole presents to this rural emergency room with a lacerated eye with possible bleeding inside the eye that they were able to see immediately, with a hematoma is the term that's used, and in severe pain and he's vomiting.

[00:06:33] Speaker 00:
That's the emergency medical condition.

[00:06:35] Speaker 00:
And they had to ensure that he was stable from that emergency medical condition before

[00:06:41] Speaker 02:
And I think that's... From that possible medical condition?

[00:06:46] Speaker 00:
No, the emergency medical condition is him... clearly it's not possible.

[00:06:50] Speaker 00:
I mean, even the corporate representative said he had one.

[00:06:53] Speaker 00:
The emergency medical condition is presenting with this hematoma in the eye, having been whipped by a piece of wire, vomiting from pain, and the site going away.

[00:07:05] Speaker 00:
That's the emergency medical condition.

[00:07:06] Speaker 00:
And they didn't stabilize him.

[00:07:08] Speaker 00:
Even Dr. Kuhlman admits they never actually stabilized the condition he came in with, partly because they didn't know what it was.

[00:07:14] Speaker 00:
And the hospital stated, and this is another fact.

[00:07:18] Speaker 04:
And you said they didn't have the capability of stabilization.

[00:07:22] Speaker 00:
Sure.

[00:07:22] Speaker 04:
Because he needed a specialist.

[00:07:26] Speaker 00:
That's exactly right.

[00:07:26] Speaker 00:
So the hospital's own practices, and this is frankly, it's undisputed as well, that their standard practice for an eye emergency

[00:07:35] Speaker 00:
is to forward the information and CT results to a medical physician qualified to interpret these results.

[00:07:40] Speaker 00:
Here, it was Dr. Clifford.

[00:07:42] Speaker 00:
And Dr. Funk, who is the optometrist who did see Mr. Cole, testified in his deposition that whenever I called Dr. Clifford about one of these eye emergencies, he would always respond to me within 15 minutes.

[00:07:57] Speaker 00:
And they certainly could have done that.

[00:07:58] Speaker 00:
And under EMTALA, I appreciate you're going to have rural small hospitals like this in Western Kansas.

[00:08:04] Speaker 00:
that aren't equipped like a hospital here in Denver might be.

[00:08:08] Speaker 00:
But they still, that's why they have this ability to refer the results, et cetera, to a qualified specialist.

[00:08:16] Speaker 00:
And they testified that they routinely did that.

[00:08:18] Speaker 00:
That was their practice.

[00:08:20] Speaker 00:
Here, the hospital didn't, however.

[00:08:21] Speaker 00:
And what Dr. Funk testified was the reason for that was they worried it would, quote, waste a surgical team.

[00:08:28] Speaker 00:
The other thing that they testified they could do is that- Waste who's surgical team?

[00:08:33] Speaker 00:
Excuse me.

[00:08:34] Speaker 00:
Oh.

[00:08:35] Speaker 04:
It would be the transfer hospital, right?

[00:08:39] Speaker 00:
Well, that's the secondary possibility.

[00:08:41] Speaker 00:
So there are two things.

[00:08:43] Speaker 04:
Because it seems to me the problem here is the failure to transfer.

[00:08:46] Speaker 04:
That is one of them.

[00:08:47] Speaker 00:
Yes.

[00:08:48] Speaker 04:
I understand your argument on stabilization.

[00:08:50] Speaker 04:
And maybe there was a misdiagnosis there or not.

[00:08:54] Speaker 04:
Yes.

[00:08:55] Speaker 04:
But I think if I understand your argument, if there was a possibility of a serious

[00:09:03] Speaker 04:
medical condition, the obligation was to transfer it to a hospital that had the capability of treating that condition.

[00:09:10] Speaker 04:
I mean, EMTALA exists to prevent hospitals from dumping patients to other hospitals to avoid financial risk.

[00:09:23] Speaker 04:
I've asked a couple of questions there, but is there really any incentive for citizens not to have transferred into

[00:09:32] Speaker 04:
Garden City or Wichita?

[00:09:34] Speaker 04:
None at all, Your Honor.

[00:09:35] Speaker 04:
No, that's true.

[00:09:35] Speaker 04:
They said they could have transferred him.

[00:09:38] Speaker 04:
Would they have been exposed to any financial obligation for that transfer?

[00:09:43] Speaker 00:
Well, I think the issue is Mr. Cole couldn't pay.

[00:09:46] Speaker 00:
I don't think that's undisputed in the record either.

[00:09:48] Speaker 00:
Would citizens have to pay?

[00:09:51] Speaker 00:
Well, Your Honor, if Mr. Cole owed a five-figure medical bill to citizens that he couldn't pay, he might go bankrupt.

[00:10:00] Speaker 00:
That happens, unfortunately, all the time, at which point

[00:10:02] Speaker 00:
Having been a creditor in bankruptcies before, you might not get paid.

[00:10:07] Speaker 04:
But the transfer financial risk would be on the ambulance company or the receiving hospital?

[00:10:15] Speaker 00:
I don't think that's in the record one way or another.

[00:10:17] Speaker 00:
I know that the doctor was concerned that they would incur an unpaid medical bill.

[00:10:22] Speaker 00:
To go into your question a little further, Your Honor,

[00:10:24] Speaker 00:
It's both.

[00:10:25] Speaker 00:
It's both the failure to refer these results to a physician.

[00:10:29] Speaker 00:
Because the next morning, when my client went and saw Dr. Fry, who was an ophthalmologist, Fry immediately, without seeing any other results, said, oh my god, you have to go to a specialist hospital and send him to one.

[00:10:41] Speaker 00:
Unfortunately, by that point, it was too late.

[00:10:43] Speaker 00:
And as a result, my client is blind in his right eye.

[00:10:46] Speaker 00:
But they certainly could have transferred him.

[00:10:47] Speaker 00:
In fact, I think the testimony was the transfer would have been to Wichita or here to Denver, because Denver's about three and a half hours from Colby, Kansas.

[00:10:54] Speaker 00:
If this isn't an EMTALA violation, so if you look at Judge Teeter's order, she effectively requires a outright refusal to treat a known medical condition that had been properly diagnosed in order to ever have an EMTALA violation.

[00:11:09] Speaker 00:
That is not how EMTALA works.

[00:11:12] Speaker 00:
And here, really, it's the failure to ensure he was stable before releasing him.

[00:11:17] Speaker 00:
And under EMTALA, the transfer can be a requirement under its

[00:11:23] Speaker 00:
Section C, which says it has to be an appropriate transfer.

[00:11:27] Speaker 00:
And if the rural hospital can't treat him, they have to transfer him somewhere.

[00:11:31] Speaker 00:
And here, I think it's undisputed because they really don't mention it.

[00:11:35] Speaker 00:
I do want to mention one thing.

[00:11:36] Speaker 00:
In their brief, the appellees on page 35 asked this rhetorical question, what additional screening could have been done but was not done because of concerns he wouldn't pay CMC for the screening?

[00:11:47] Speaker 00:
I think clearly the record answers that for itself.

[00:11:50] Speaker 00:
They could have easily, just as they do in most cases, sent the results to a physician who, like Dr. Fry, immediately would have seen what this was.

[00:11:59] Speaker 02:
Well, but was it Dr. Fry?

[00:12:01] Speaker 02:
One of the physicians said that it wouldn't have made any difference.

[00:12:04] Speaker 00:
So Dr. Fry said that wouldn't make any difference.

[00:12:06] Speaker 00:
We had an expert who said different.

[00:12:09] Speaker 00:
We had actually two experts.

[00:12:10] Speaker 00:
There was a Dr. Lungin, and then there was one that Judge Teeter does not mention.

[00:12:15] Speaker 00:
And I'll mention this real briefly.

[00:12:17] Speaker 00:
It was.

[00:12:22] Speaker 00:
We had an expert who said that I know that.

[00:12:24] Speaker 02:
So you're saying summary judgment could not be predicated on the fact it wouldn't make a difference because there was a genuine dispute of fact about that.

[00:12:32] Speaker 02:
That's your point.

[00:12:33] Speaker 00:
There is a genuine dispute.

[00:12:34] Speaker 02:
That's all you need to do to defeat summary judgment.

[00:12:37] Speaker 02:
Exactly.

[00:12:37] Speaker 01:
Council, could you speak to our decision in Phillips versus Hillcrest and why that wouldn't, as a matter of law, be dispositive on your claim that

[00:12:51] Speaker 01:
EMTALA supports actions based solely on evidence of bias against non-insurgency?

[00:12:59] Speaker 00:
Oh, I don't know that it's solely, and I apologize if that came through in the argument here.

[00:13:05] Speaker 00:
I do not agree that solely on evidence of bias, it's enough.

[00:13:09] Speaker 00:
In fact, you have to show an underlying EMTALA violation.

[00:13:12] Speaker 00:
In fact, I think in our brief, we argue.

[00:13:15] Speaker 01:
So you say that Phillips doesn't dispose of that claim for you.

[00:13:20] Speaker 00:
No, I don't think it does.

[00:13:22] Speaker 01:
And can you say more about why that's so?

[00:13:24] Speaker 00:
So as I recall, the point in Phillips is that bias itself is not enough.

[00:13:31] Speaker 00:
And I agree with that.

[00:13:33] Speaker 00:
It's a factor that the court or a jury can certainly take into account in determining whether there has been an EMTALA violation.

[00:13:40] Speaker 00:
But we still have to show the underlying violation.

[00:13:43] Speaker 00:
I think here the bias only adds to it.

[00:13:46] Speaker 00:
I'd like to reserve the rest of my time for a minute.

[00:13:48] Speaker 00:
You may.

[00:13:48] Speaker 00:
Thank you.

[00:13:53] Speaker 03:
May it please the court, I'm Brian Wright on behalf of CMCI Citizens Medical Center Incorporated or CMC.

[00:14:01] Speaker 03:
The EMTALA statute was enacted in order to provide a very simple thing and that is a screening to a patient who arrives at an emergency department of a hospital who receives Medicare or Medicaid money in the United States to prevent that hospital from sending that patient immediately and automatically without finding out what might be wrong

[00:14:22] Speaker 03:
to another hospital in order to avoid the financial responsibility of dealing with an uninsured patient.

[00:14:28] Speaker 02:
Is EMTREL limited just to decisions at the emergency room intake, or is it broader than that?

[00:14:35] Speaker 03:
It's broader.

[00:14:35] Speaker 02:
The urban case was one... The way you just described it, it was focused just on the emergency room initial intake.

[00:14:42] Speaker 03:
Exactly.

[00:14:43] Speaker 03:
That was what Congress intended.

[00:14:46] Speaker 03:
It was a little bit broader in the language that was enacted, but the congressional record

[00:14:52] Speaker 03:
that we cited in the brief talks about, the fact that, and the Baber case talks about, that Congress wanted to have an adequate first response to a patient who walks through the doors of the emergency department.

[00:15:06] Speaker 03:
But you agree that this statute is broader than that.

[00:15:10] Speaker 02:
It's not limited just to first decisions in an emergency intake.

[00:15:14] Speaker 03:
Not first decisions, no.

[00:15:16] Speaker 03:
No, what it does is it says if

[00:15:19] Speaker 03:
The patient dumping problem came about with ambulances who would actually call to an emergency room and say, we're bringing such and so patient.

[00:15:27] Speaker 03:
They would be asked the question, does that patient have insurance?

[00:15:29] Speaker 03:
And they would be then directed to the next hospital down the road.

[00:15:32] Speaker 03:
So it is about just that first thing.

[00:15:37] Speaker 03:
That's what it was intended to do.

[00:15:38] Speaker 03:
But yes, it is broader.

[00:15:39] Speaker 03:
It does go to the question of what do we do once that patient is in the hospital?

[00:15:44] Speaker 03:
And that's where the litigation

[00:15:46] Speaker 03:
developed in the late 80s, early 1990s with all the cases that we've cited that said, including this court, very clearly that this does not establish a malpractice cause of action.

[00:15:57] Speaker 03:
It establishes a cause of action that says, is there an emergency medical condition?

[00:16:04] Speaker 03:
If it is found to be an emergency medical condition, then that condition needs to be stabilized, or if it can't be stabilized at the hospital where the patient has presented,

[00:16:16] Speaker 03:
it needs to be transferred to another hospital where that can be done.

[00:16:20] Speaker 01:
Why isn't the differential diagnosis here sufficient to show knowledge under V1?

[00:16:27] Speaker 03:
Because a differential diagnosis is not a diagnosis and because this court's own decision in the urban case says that actual knowledge of the condition is required in order to trigger any stabilization requirement

[00:16:44] Speaker 03:
or any appropriate transfer requirement.

[00:16:47] Speaker 03:
And the questions that I heard in the first part of the argument here, in essence, address that very point, which is if we have 10 different possibilities for what might be causing a problem, then that interpretation of Intala would say every single one of those has to be thoroughly investigated.

[00:17:06] Speaker 03:
And that is not what the statute was.

[00:17:09] Speaker 01:
But there was actual knowledge of a possible rupture globe.

[00:17:14] Speaker 03:
That's known when a patient comes in with blood all over his eye and obvious trauma to the eye.

[00:17:19] Speaker 03:
That's known to everybody involved.

[00:17:21] Speaker 03:
That's not an issue.

[00:17:22] Speaker 03:
What's at issue in this case is that the plaintiff, we've had a pretrial conference.

[00:17:28] Speaker 03:
We have a pretrial conference order.

[00:17:30] Speaker 03:
This is on summary judgment motion after all of discovery is completed and the plaintiff has chosen the claim.

[00:17:38] Speaker 03:
This statement, this idea that there was a possibility that needs to be addressed

[00:17:43] Speaker 03:
is not in the pretrial conference order.

[00:17:47] Speaker 03:
We've cited the pretrial conference order, which says the patient arrived with a ruptured globe.

[00:17:53] Speaker 03:
That is the condition that needs to be stabilized.

[00:17:56] Speaker 03:
That is the condition that can only be stabilized, in fact, can only be diagnosed with surgery.

[00:18:03] Speaker 03:
So it's too glib to say it in a case about eyesight, but hindsight is 20-20.

[00:18:09] Speaker 03:
And this patient's injury,

[00:18:12] Speaker 03:
was not known at Colby at Citizens Medical Center, was not known at Garden City the next day by Dr. Fry, was not known by the next physician that examined the patient in Wichita, but was known by the surgeon who then went in and opened up the eye and found the rupture of the globe.

[00:18:32] Speaker 03:
So that's when this condition was discovered.

[00:18:34] Speaker 03:
It's the only way it could have been discovered.

[00:18:36] Speaker 03:
So to go back and say you knew that that condition existed, well of course we knew it was a possibility.

[00:18:42] Speaker 03:
But what we evaluated within that hospital was an appropriate screening that was within the capabilities of that hospital, including those things that are routinely available in ancillary services at that hospital.

[00:18:55] Speaker 03:
That's what CMCI did in this case.

[00:18:59] Speaker 03:
The statute is intended to provide an adequate first response to a medical crisis.

[00:19:04] Speaker 03:
The statute in favor was noted to say to all Americans, you should know that a hospital will provide

[00:19:10] Speaker 03:
what services it can when that patient is in physical distress.

[00:19:16] Speaker 03:
The services that were provided here were every single one of the services that can be provided within the capability of this hospital.

[00:19:25] Speaker 03:
The patient came into the emergency medical, into the emergency room, was evaluated by a physician assistant, then by a physician, then by an optometrist, then with specialized equipment, then a CAT scan, and that's all that they can do.

[00:19:40] Speaker 03:
Now, that's the end of the screening process at this hospital.

[00:19:45] Speaker 04:
You know, it seems, I mean, you can think of a fact pattern where there would be 12 possibilities from something benign to something serious.

[00:19:55] Speaker 04:
And, you know, here it's like, I guess my take on the record is there was one relatively benign explanation which the hospital accepted and there was a devastating

[00:20:10] Speaker 04:
Possibility you know with eyesight sure and there were many others.

[00:20:15] Speaker 03:
It's not I mean they aren't they aren't really Something that is necessary to discuss here for our purposes I don't think but there's plenty of other parts of the eye that can be injured The the globe in the place that it was ruptured in this case was particularly difficult to find that's why I said it wasn't discovered I know it was it was it was a bad case, but the hospital sent sent him home basically with

[00:20:39] Speaker 04:
painkillers, and like I was exploring with counsel, it seems that this is a case where the condition was serious, emergency was serious enough where there should have been a strong recommendation of a transfer.

[00:20:55] Speaker 03:
And I'm going to emphasize the word should in your statement because that's exactly what malpractice is for.

[00:21:01] Speaker 03:
And there are pendant state claims that were part of this lawsuit, and they're still there.

[00:21:06] Speaker 03:
They are still there to be litigated.

[00:21:08] Speaker 03:
And so the question of what should have been done is the malpractice question.

[00:21:13] Speaker 03:
The question of what was actually known and what was actually done by the hospital is really pretty straightforward.

[00:21:21] Speaker 03:
The urban case, for example, you had a baby who was in the process of suffering severe, irreversible, lifelong brain damage in the urban versus king case.

[00:21:34] Speaker 03:
that was decided in this court in 1994.

[00:21:36] Speaker 03:
There was a non-reactive stress test that was done.

[00:21:40] Speaker 03:
The nurse calls a doctor and says, what should I do?

[00:21:43] Speaker 03:
The doctor says you should send the patient home.

[00:21:46] Speaker 03:
The next day, then, the baby was born with severe brain damage, and this court held that hospital did not have actual knowledge of the condition that ultimately caused the injury.

[00:21:58] Speaker 03:
And because of that lack of knowledge,

[00:22:00] Speaker 03:
the stabilization and transfer requirements were not triggered.

[00:22:05] Speaker 03:
And that case has not been negatively viewed by anybody at any court since 1994.

[00:22:14] Speaker 03:
We gave the example of the Cleveland case in the Sixth Circuit in 1990, where a teenager died of a condition of the intestine, where the intestine had folded in on itself.

[00:22:29] Speaker 03:
could have been discovered, but it was not discovered.

[00:22:32] Speaker 03:
The patient was sent home and died.

[00:22:34] Speaker 03:
They thought that the patient had the stomach flu.

[00:22:38] Speaker 03:
The case of Baber was a case where a patient had a subdural hematoma that ultimately killed her, and she was evaluated in many different ways, but none of which were designed to get to that point.

[00:22:52] Speaker 03:
They thought that she had psychiatric problems, that sort of thing, completely undiagnosed.

[00:22:58] Speaker 03:
Again, same holding.

[00:22:59] Speaker 03:
The holding is that if you don't know what the condition is, you can't be required to make the transfer or to stabilize that condition.

[00:23:08] Speaker 03:
Now, I want to address the point that the appellant made in regard to Ms.

[00:23:16] Speaker 03:
Niblock's testimony, the corporate representative from the hospital.

[00:23:21] Speaker 03:
She testified, she was asked the question, whether or not the patient presented in an emergency medical condition.

[00:23:28] Speaker 03:
Well, yes, he did.

[00:23:29] Speaker 03:
was her answer.

[00:23:30] Speaker 03:
That was her answer that bound the corporation defendant.

[00:23:34] Speaker 03:
And then there were questions asked about what is done in general eye emergencies, not situations where there's a specific problem that has to be operated on in order to solve the problem.

[00:23:47] Speaker 03:
And the ultimate answer that she gave was, I do not believe that Dr. Kuhlman or Dr. Funk felt like he had an open globe.

[00:23:57] Speaker 03:
So it was not an admission that the patient had an open globe.

[00:24:01] Speaker 03:
And I go back to that fact that the pretrial conference order specifies that the claim that the plaintiff made, the remedy, the way that they chose to approach this case is to say he had a ruptured globe that was undiagnosed.

[00:24:16] Speaker 01:
So would you, this is obviously a hypothetical, but if that was not what the pre-trial order, final pre-trial order specified and really the focus that the appellant made was on the possibility of a ruptured globe as the emergent medical condition, would that be different?

[00:24:31] Speaker 03:
Well, I thought that through quite a bit.

[00:24:33] Speaker 03:
I don't think it makes a difference because it's not what's claimed, but I do think that it could potentially make a difference.

[00:24:39] Speaker 03:
But in the end, it isn't going to make a difference because there's no evidence in this record that says,

[00:24:44] Speaker 03:
what we do with potential or possible ruptured globes.

[00:24:48] Speaker 01:
I agree with that as a general principle.

[00:24:50] Speaker 01:
I think Judge Timkovich and you had engaged in that, that it could be a range of possibilities and certainly differential diagnosis per se can't constitute actual knowledge.

[00:24:59] Speaker 01:
But here there's one obvious thing that it could have been.

[00:25:02] Speaker 01:
And my question is, is it your recommendation to us that we not engage with the possibility of a ruptured globe because the final pretrial order didn't account for that?

[00:25:14] Speaker 03:
Absolutely, absolutely.

[00:25:16] Speaker 03:
You can only deal with what claims are being made in the case.

[00:25:19] Speaker 03:
You can't address ones that aren't made.

[00:25:22] Speaker 03:
So the possibility of a condition in this circumstance does not require stabilization, does not require appropriate transfer.

[00:25:31] Speaker 03:
Now, I do want to address, lastly, the question of the CT scan results.

[00:25:37] Speaker 03:
Remember, this patient came in with blood coming off the eye, vomiting from the pain.

[00:25:41] Speaker 03:
It was obvious that he had

[00:25:43] Speaker 03:
and emergency condition that needed to be addressed in that emergency room.

[00:25:49] Speaker 03:
And the standard procedure of doing a CT scan was done.

[00:25:52] Speaker 03:
That information was provided to Dr. Kuhlman.

[00:25:54] Speaker 03:
Now, Dr. Kuhlman, the emergency physician, says, I already knew that it was a possibility that he had this condition.

[00:26:05] Speaker 03:
I don't need to forward that to Dr. Fry.

[00:26:08] Speaker 03:
who we've already talked to and who already believes it's a possibility and who already has said, send this patient to my office to be evaluated first thing in the morning.

[00:26:17] Speaker 03:
It doesn't add anything.

[00:26:19] Speaker 03:
That's my decision.

[00:26:21] Speaker 03:
Now, the hospital obviously is not the entity making that decision.

[00:26:26] Speaker 03:
Its doctor is acting on its behalf.

[00:26:29] Speaker 01:
So can Dr. Coleman's personal practice, is that not enough to establish a hospital?

[00:26:33] Speaker 03:
Absolutely not.

[00:26:34] Speaker 03:
That's exactly the next thing I was going to say.

[00:26:36] Speaker 03:
It does not.

[00:26:38] Speaker 03:
There are multiple physicians on staff there.

[00:26:40] Speaker 03:
They may choose to do it differently.

[00:26:42] Speaker 03:
The plaintiff never proved in this case, never established, never went and got evidence that says the hospital generally does it this way.

[00:26:51] Speaker 03:
That is simply not there.

[00:26:52] Speaker 03:
The policies that are in the record talk about the obligations under MTALA to find out within the capabilities of the hospital what the problem is and then to attempt to stabilize it or transfer it.

[00:27:05] Speaker 03:
And that is all that those policies say.

[00:27:07] Speaker 03:
So one physician's way of doing it does not set policy, because the other physician the next day may do it a different way.

[00:27:14] Speaker 01:
What if he's the physician?

[00:27:15] Speaker 01:
It's a small rural hospital.

[00:27:18] Speaker 01:
Could it ever be the physician?

[00:27:19] Speaker 03:
That would be a different story.

[00:27:20] Speaker 03:
Yeah, that could be a different story.

[00:27:22] Speaker 03:
You could have the sort of informality in that situation where the policy is indeed what he usually does.

[00:27:29] Speaker 03:
But that is not what the record says here.

[00:27:34] Speaker 03:
We would ask you to affirm.

[00:27:35] Speaker 03:
Thank you.

[00:27:36] Speaker 04:
Thank you, Counsel.

[00:27:38] Speaker 04:
Mr. Sturmer, you had some rebuttal.

[00:27:42] Speaker 00:
A very short time, I want to address a couple of things.

[00:27:46] Speaker 00:
Council cited a bunch of case law that he said is analogous.

[00:27:48] Speaker 00:
It is not.

[00:27:49] Speaker 00:
The Urban case, for example, was where a woman presented just for an ordinary stress test at a maternity ward, and the stress test came out negative.

[00:27:58] Speaker 00:
There was nothing wrong.

[00:27:59] Speaker 00:
Nothing was suspected to be wrong.

[00:28:01] Speaker 00:
The next day, she complained of pain and was then admitted to an emergency room and, of course, a terrible condition that resulted in a stillborn baby was found.

[00:28:12] Speaker 00:
There was no knowledge of any emergency medical condition of any kind in that case.

[00:28:16] Speaker 00:
Second, I want to go to the pretrial order.

[00:28:18] Speaker 00:
This is on page 72 of volume 1 of the appendix.

[00:28:22] Speaker 00:
I think counsel is minimizing what we actually argued there.

[00:28:26] Speaker 00:
So we talk about what a rupture in the eyeball is.

[00:28:30] Speaker 00:
It's an emergency medical condition under the meaning of imtala.

[00:28:33] Speaker 00:
And per the standard of ophthalmological medical care, if a ruptured globe is suspected or possible, it is presumed ruptured unless ruled out by an emergency surgeon.

[00:28:44] Speaker 00:
The cases that are more analogous are the ones we cited, which are unfortunately district court cases, two from Kansas, Palmer from 2017, Scott, sorry, your honor.

[00:28:54] Speaker 01:
With your clarification on the order, is there any evidence on summary judgment, the summary judgment record that supports

[00:29:02] Speaker 01:
Let's assume we read the pretrial order more broadly the way that you suggest.

[00:29:07] Speaker 01:
Did your expert opine on the possibility as being the emergent medical condition?

[00:29:11] Speaker 01:
Is there any evidence in the summary judgment record that would support that understanding?

[00:29:14] Speaker 00:
That would support what understanding, Your Honor?

[00:29:16] Speaker 01:
I'm sorry.

[00:29:17] Speaker 01:
That we're talking about the possibility of a ruptured globe as a emergent medical condition.

[00:29:23] Speaker 00:
Sure.

[00:29:23] Speaker 00:
Dr. Kirkpatrick, who was the radiologist who actually did the, who looked at the CT scan results,

[00:29:30] Speaker 00:
He said that there was a possibility of a ruptured globe.

[00:29:35] Speaker 00:
And Dr. Kuhlman, and this is, again, they minimized this, so I want to point the court to volume 13, page 21 of the appendix.

[00:29:44] Speaker 00:
This is Dr. Kuhlman's own testimony where he says that because they didn't know what this was, he actually didn't know and couldn't know whether my client was stable.

[00:29:52] Speaker 00:
And I think really that's what this comes down to is the failure to stabilize, the failure to ensure that he was stable before releasing him.

[00:30:00] Speaker 02:
It was just a possibility.

[00:30:03] Speaker 02:
You have to stabilize for all those possibilities before you can release?

[00:30:08] Speaker 00:
No, Your Honor.

[00:30:08] Speaker 00:
The hospital has to be sure that he is in a stable condition.

[00:30:13] Speaker 00:
He is capable of self-care from what the record shows.

[00:30:17] Speaker 00:
That's the standard under EMTOLY.

[00:30:18] Speaker 02:
I think your answer then would be yes.

[00:30:20] Speaker 02:
If there is a possibility of four things, you have to stabilize for all four.

[00:30:24] Speaker 02:
You're saying possibility has to be stabilized for everything.

[00:30:31] Speaker 00:
I'm saying that the physician has to be sure that he's capable of self-care based on the record in front of him.

[00:30:37] Speaker 00:
And based on this record, under the summary judgment standard, that was sufficient for the plaintiff, for the physicians to have to at least do this for a ruptured globe.

[00:30:45] Speaker 00:
That's the DeSiccio case from the Eastern District of Pennsylvania in 2017, where it was a similar issue where a plaintiff had a possibility of angina.

[00:30:56] Speaker 00:
They didn't realize that.

[00:30:57] Speaker 00:
They didn't check for it, but they released him anyway.

[00:31:00] Speaker 00:
The district court denied summary judgment.

[00:31:02] Speaker 00:
I don't believe there was an appeal.

[00:31:04] Speaker 00:
I see I'm long out of time We'd ask the court to reverse and remand this case for trial on both the ontologist claim and the dismissed pendent state claims counsel and my notes indicate that Miss Lynch might have wanted some time Okay, thank you counsel counsel excuse in the case of submitted thank you honors