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Romar v. Fresno Community Hospital and Medical Center

September 4, 2008

CHRISTINA ROMAR, A MINOR SUING THROUGH HER MOTHER AND LEGAL REPRESENTATIVE, CORA ROMAR, PLAINTIFF,
v.
FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER, AND DR. THOMAS MANSFIELD, DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION AND MOTION TO SHORTEN TIME

Trial in this matter is currently set for November 5, 2008. The Pre-Trial conference is currently set for September 24, 2008. The Settlement Conference is set for September 15, 2008. On August 29, 2008, Plaintiff filed a motion for reconsideration and a request to shorten time. Plaintiff requested that the reconsideration motion be held on September 24, 2008, but prior to the pre-trial conference. The Court has reviewed Plaintiff's motion and request and will issue the following order.

Procedural History & Plaintiff's Argument

Plaintiff Christina Romar brought suit against Fresno Community Hospital and Medical Center alleging violations of the 42 U.S.C. § 1395dd ("EMTALA").*fn1 On May 14, 2004, the Court dismissed Plaintiff's complaint.*fn2 An amended complaint was filed and, on September 28, 2004, portions of the amended complaint were again dismissed. In particular, Plaintiff's claim that she received a mere "cursory screening," see Jackson v. East Bay Hospital, 246 F.3d 1248, 1256 (9th Cir. 2001), was dismissed without leave to amend. The Court reasoned:

A cursory screening claim requires an allegation that the screening was not designed to identify acute symptoms. Plaintiff's FAC, however, alleges that the screening that Christina Romar actually received identified acute symptoms. The emergency room nurses weighed Christina, took her pulse, noted discharge from her eyes, and took her temperature. Thus, the FAC alleges that Christina was identified as having acute symptoms and was diagnosed and treated accordingly. Although Christina's diagnosis and treatment may have been incorrect, Plaintiff cannot claim that Christina was not assessed. The fact that her screening may have been negligent cannot support her EMTALA cursory screening claim. . . . Thus, because Plaintiff's screening actually identified acute symptoms, Plaintiff's cursory screening claim cannot proceed.

Court's Docket Doc. No. 36 at pp. 13-14.

On March 8, 2006, Plaintiff filed a motion for leave to file a supplemental complaint with the Magistrate Judge. See Court's Docket Doc. No. 57. As part of the motion, Plaintiff attempted to reinstate her "cursory screening" claim and argued inter alia that the Court's order regarding that claim was erroneous because it confused or conflated "an appropriate medical screening" with "triage."*fn3 See id. On May 1, 2008, the Magistrate Judge denied Plaintiff's motion. See Court's Docket Doc. No. 70.

On August 29, 2008, Plaintiff filed this motion requesting reconsideration of the order dismissing the "cursory screening" claim. Quoting the Federal Register, Plaintiff argues that triaging is not the equivalent of a medical screening examination and that triaging merely determines the order in which one is seen. Plaintiff argues that the motion to dismiss overlooks the clear difference between a triage and a medical screening examination under EMTALA, and the recording of Christina's weight, pulse, temperature, and appearance by triage nurses should not preclude a claim based on a theory that she received a cursory screening. "Because the law is clear that Christina's triage, whatever its nature, has no bearing on whether she received an EMTALA compliant screening, justice demands that this prior ruling be corrected." Plaintiff's Motion at 7.

Legal Standard

Local Rule 78-230(k) provides: Whenever any motion has been granted or denied in whole or in part, and a subsequent motion for reconsideration is made upon the same or any alleged different set of facts, it shall be the duty of counsel to present to the Judge or Magistrate Judge to whom such subsequent motion is made an affidavit or brief, as appropriate, setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought including:

(1) when and to what Judge or Magistrate Judge the prior motion was made,

(2) what ruling, decision or order was made thereon,

(3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what ...


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