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October 6, 1997

EAST BAY HOSPITAL, et al., Defendants.

The opinion of the court was delivered by: PATEL

 Plaintiff Barbara Jackson brings this action under the Emergency Medical Treatment and Active Labor Act of 1986 ("EMTALA"), 42 U.S.C. section 1395dd, state law and 42 U.S.C. section 1983, for damages arising from the wrongful death of and personal injury to her husband, Robert Jackson. Plaintiff and defendants have filed cross-motions for partial summary judgment on the applicability of state law damages restrictions to plaintiff's claim. Also before the court is defendant Steele's motion for judgment on the pleadings as to the EMTALA and section 1983 actions brought against him.

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following opinion.


 Plaintiff, decedent Robert Jackson's wife Barbara, brings this action making common law claims and claims under state and federal law. At the time of this incident, decedent had a history of psychiatric problems and was taking prescribed antipsychotic medication. Plaintiff claims that during the period of March 31 through April 4, 1996, Mr. Jackson presented himself for care three times at Redbud Hospital Emergency Department. Plaintiff contends that he was having delusions, but also had other "alarming" physical symptoms which went untreated, because "he was simply labeled as a psychiatric problem." Plaintiff's Memorandum of Points and Authorities In Support of Motion For Partial Summary Judgment at 2.

 On his third visit *fn1" , Mr. Jackson was given Haldol, an antipsychotic medication which plaintiff claims was contraindicated in light of his physical symptoms and "the known but unappreciated, fact that he was also taking Anafranil." Id. Plaintiff claims that the combination of these two medications can and did cause arrhythmia and sudden death.

 Plaintiff further alleges that apart from his mental condition, Mr. Jackson was in an unstable medical condition, and did not receive the appropriate medical screening examination as required by EMTALA. While at Redbud, he was seen by the Lake County Mental Health Department which determined that he should be involuntarily committed pursuant to California Welfare and Institutions Code section 5150. He then was transferred to East Bay Hospital.

 Plaintiff contends that a psychiatrist at East Bay prescribed additional Haldol without a physical examination, and that approximately half an hour later Mr. Jackson ceased breathing and went into cardiac arrest. Plaintiff asserts that several doctors and nurses witnessed this event, but rather than providing the required standard treatment of an acute care hospital, they transferred Mr. Jackson to Brookside, in violation of EMTALA. Mr. Jackson allegedly died approximately thirty-eight minutes after cardiac arrest commenced.

 In her second amended complaint ("complaint"), plaintiff seeks damages and injunctive relief arising from the death of her husband due to the alleged negligent treatment at defendant hospitals, and violation of strict liability statutes. Plaintiff claims relief under common law, California Health and Safety Code section 1317, et seq., 42 U.S.C. section 1395dd (EMTALA), and 42 U.S.C. section 1983.

 In a status conference on March 7, 1997, the court requested that the parties brief the issue of whether state law applies to plaintiff's damages claims under EMTALA. In response, defendant Redbud Community Hospital District ("Redbud") submitted a motion on May 8, 1997, which defendants Adventist Health, Inc. ("Adventist") and Miguel M. Ollada, M.D., later joined, asserting the applicability of a $ 250,000 damages cap under California Civil Code section 3333.2 (Medical Injury Compensation Reform Act of 1975) ("MICRA")) to the EMTALA claim.

 On May 9, 1997, defendant East Bay Hospital ("East Bay") submitted a separate motion asserting the applicability of the MICRA damages cap, as well as state limitations on punitive damages pursuant to California Code of Civil Procedure sections 425.13 and 377.61. Defendant doctors Steele and Ollada also brought respective motions on May 12 and May 9, 1996 for judgment on the pleadings and a motion to strike, asserting that the punitive damages claims should not be permitted due to plaintiff's non-compliance with section 425.13 and California Civil Code section 3294. Steele also moves for judgment on the pleadings as to plaintiff's claims against him under EMTALA and section 1983.

 Plaintiff filed a motion on June 25, 1997 for partial summary judgment and opposition to defendant Redbud and East Bay's prior motions, and later submitted replies to defendants Steele and Ollada's motions. The court considers the motions regarding the state law damages cap and punitive damages motions to be cross-motions for partial summary judgment as to the application of state law to plaintiff's claims.


 I. Summary Judgment

 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function, however, is not to make credibility determinations, Anderson, 477 U.S. at 249, and the inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.

 II. Judgment On The Pleadings

 A motion for judgment on the pleadings is proper "when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Fed. R. Civ. P. 12(c); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990). In reviewing a motion under Rule 12(c), the court must assume that the facts alleged by the nonmoving party are true and must construe all inferences drawn from those facts in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079, 107 L. Ed. 2d 1039, 110 S. Ct. 1134 (1990). The court need not assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981).


 The first issue before the court is the extent to which state damages law is applicable to an EMTALA personal injury claim. In contention is the application of the MICRA $ 250,000 damages cap on claims against health care providers.

 This matter is one of first impression in this Circuit. As such, the court will determine the more abstract question of the nature and extent of EMTALA incorporation of state damages law, and then consider whether the specific state damages law -- in this case, MICRA -- applies to an EMTALA claim. This opinion is supported by the small but consistent body of case law on this issue in other courts.

 Also at issue is the application of state punitive damages requirements to plaintiff's state and federal claims. This decision resolves whether Code of Civil Procedure section 425.13 and Civil Code section 3294 are applicable to a pendent state claim in federal court.

 Lastly, the decision will determine whether defendant Steele may be granted summary judgment on two issues: 1) whether plaintiff may bring an EMTALA claim against an individual physician; and 2) whether defendant's actions as a private physician working in a private hospital are considered to be actions under "color of law" pursuant to section 1983.

 I. EMTALA Incorporation of State Damages Law

 EMTALA, also referred to as the "anti-patient-dumping" statute, was created because Congress "was concerned that hospitals were 'dumping' patients who were unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their conditions were stabilized." Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255 (9th Cir. 1995).

 The extent of that incorporation lies at the crux of plaintiff's argument. Plaintiff asserts that Congress intended to apply the broader general state provisions for personal injury damages, and not the more specific provisions of MICRA, which only apply to negligence claims against health care providers. Defendants, on the other hand, contend that the language of the statute was left open as an invitation to a broader interpretation which would permit application of MICRA.

 Plaintiff alternatively asserts that even if the court finds that EMTALA permits the damages cap, MICRA is nevertheless inapplicable to the claim under state law.

 A. California Tort Law

 The relevant state law, California general tort law, states that "the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby." Cal. Civ. Code § 3333 (emphasis added). More specifically, section 3333.2 (MICRA), provides that in "any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to "no more than $ 250,000 for non-economic losses. Cal. Civ. Code § 3333.2(a) & (b).

 Before a more detailed examination of EMTALA state damages law incorporation and intent, it is important to note that plaintiff is incorrect in her narrow construction of the MICRA damages cap as strictly outside the scope of California general torts law. Section 3333 implicitly includes the MICRA damages cap when it provides for exceptions "expressly provided by this Code." Cal. Civ. Code § 3333. Section 3333.2 is just such an exception expressly included within the Code, a fact which plaintiff chooses to overlook.

 However, since this is an issue of first impression, the court looks to the broader issue of EMTALA's incorporation of state law and then to the issue of the application of the specific provisions of the MICRA cap.

 B. The Scope of EMTALA Incorporation of State Law

 Both parties assert contradictory readings of the EMTALA damages provision. As the court sees nothing in the plain language of the provision indicating whether it is to be read broadly or narrowly, the court will consider the purpose and intent of EMTALA, and any relevant legislative history.

 The Fourth Circuit, the only circuit to address this issue so far, offers a sound and persuasive examination of EMTALA's purposes and legislative history. In Power v. Arlington Hosp. Ass'n 42 F.3d 851, 864 (4th Cir. 1994), the court held a Virginia medical malpractice damages cap of one million dollars applicable to an EMTALA civil suit. The court reflected that Congress' deliberate choice of substituting the phrase "personal injury" for the prior unspecified "damages" terminology supported a reading that Congress intended to permit states to apply such restrictions on damages as limitations on punitive damages and damages caps. *fn2" Id. at 862.

 Power supports that conclusion by quoting a report on the bill by the House Committee on the Judiciary dated prior to alteration of the language of the damages provision to specify "personal injury". The relevant portion states:

The Committee is concerned that if penalties are too severe, some hospitals, particularly those located in rural or poor areas, may decide to close their emergency rooms entirely rather than risk the civil fines [and] damage awards . . . that might ensue.
The Committee is also concerned there was no information available to it regarding the potential impact of these enforcement provisions on the current medical malpractice crisis.
All of these considerations led the Committee to conclude that . . . a decrease [might result] in available emergency care, rather that [sic] an increase in such care, which appears to have been the major goal of the section.

 House Report No. 99-241 (Part 3), at 6, 1986 U.S. Code Cong. & Admin. News at 727. In applying damages caps, both Power and Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. Supp. 853, 855 (S.D.Ind. 1989) (applying a $ 100,000 medical malpractice damages cap to an EMTALA claim), conclude that Congress "'was clearly aware of a growing concern in some states that excessive damage awards were fueling a medical malpractice 'crisis'.'" Power, 42 F.3d at 862 (quoting Reid, 709 F. Supp. at 855); see also Lee v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 903-04 (W.D.Va. 1991) (following reasoning in Reid in applying damages cap to EMTALA claim); but cf. Cooper v. Gulf Breeze Hosp., Inc., 839 F. Supp. 1538, 1543 (N.D.Fla. 1993) (holding Florida damages limitation provision inapplicable to an EMTALA claim). *fn3"

 MICRA was California's response to the medical malpractice "crisis." The California Supreme Court highlights the legislative intent behind MICRA, and the inherent dangers of making exceptions to it in stating:

The Legislature stated the purpose of M.I.C.R.A. is "to provide an adequate and reasonable remedy" for the "major health care crisis . . . attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state." (Stats.1975, Second Ex. Sess. ch. 2, § 12.5, p. 4007.)

 Hedlund v. Superior Court of Orange Cty., 34 Cal. 3d 695, 704, 194 Cal. Rptr. 805, 669 P.2d 41 (1983).

 Despite plaintiff's assertions, the damages cap is not an "arbitrary restriction." Rather, it is part of the body of state responses to the "crisis" which Congress took into consideration when ...

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