[00:00:06] Speaker 01:
Good morning my name's Ashley Conlug.

[00:00:08] Speaker 01:
I represent plaintiff and appellant Sandra Shaw.

[00:00:11] Speaker 01:
I'd like to reserve about five minutes for my rebuttal.

[00:00:13] Speaker 03:
All right.

[00:00:14] Speaker 01:
It pleases the court.

[00:00:16] Speaker 01:
This is a case that comes on a motion to dismiss as the court is aware.

[00:00:20] Speaker 01:
There's a de novo seat up council.

[00:00:22] Speaker 01:
Sorry I apologize let me see if I can adjust this.

[00:00:26] Speaker 01:
This case comes on a strange procedural posture because this is a motion to dismiss that was decided well after the discovery had virtually completed in the underlying court.

[00:00:37] Speaker 01:
We have a very robust discovery and record of what actually happened in this case with this very tragic death of this young gentleman.

[00:00:45] Speaker 01:
The facts are clear that within one minute of being transferred to Parkview Community Hospital, he was instructed to be taken off the premises.

[00:00:53] Speaker 01:
And one minute after that instruction was given, he was in fact removed.

[00:00:57] Speaker 01:
Within several minutes, about an hour of being removed, he died on the street outside of the hospital.

[00:01:05] Speaker 01:
There's a very tragic case and I think a very clear cut in Tala violation here.

[00:01:11] Speaker 01:
All of these facts were plugged.

[00:01:12] Speaker 02:
For purposes of EMTALA, can the screening be done by EMT personnel?

[00:01:18] Speaker 01:
No.

[00:01:18] Speaker 01:
Under EMTALA, the screening must be done by the hospital personnel.

[00:01:21] Speaker 01:
That is the only person that is covered by the EMTALA law.

[00:01:25] Speaker 01:
The EMTALA law is very clear that it has to be a Medicaid receiving emergency room that is covered.

[00:01:30] Speaker 02:
So under EMTALA law, if EMT took the vitals immediately, giving you a hypothetical, not going to the facts of this particular case,

[00:01:40] Speaker 02:
So if somebody's rushed to the hospital, EMT takes their vitals and do the screening that you're asking for on the premises and then tells the hospital that still is a violation of Nutella.

[00:01:52] Speaker 02:
So hospital personnel need to go through the same process over again and in no way can rely on what EMT does.

[00:01:59] Speaker 01:
Yes, under that hypothetical.

[00:02:01] Speaker 01:
And the reason for that is because the EMTALA law requires a hospital to do a screening that is within the capabilities of that hospital parameters.

[00:02:09] Speaker 01:
So that would be a higher threshold hypothetically in this situation than an EMT would be able to do because an EMT has very few resources available to them.

[00:02:18] Speaker 01:
They're working in the field.

[00:02:19] Speaker 01:
The resources and materials that are available in a hospital setting would hypothetically be much more extensive.

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They would have much more ability to do testing, things like that.

[00:02:29] Speaker 01:
Right.

[00:02:29] Speaker 02:
I thought in this particular case that the screening test that you alleged the hospital needed to do was actually done by EMT personnel and communicated to the hospital.

[00:02:40] Speaker 02:
Is that not correct?

[00:02:41] Speaker 01:
No, in the complaint, we've alleged that the hospital should have done a whole panoply of tests, including an EKG, long-term monitoring of breathing rate, heart rate, all of those types of things.

[00:02:52] Speaker 01:
Other testing that is specified in the hospital's policies and procedures, that would have gone far beyond what an EMT would have been capable of doing in the field.

[00:03:00] Speaker 01:
In this case, the EMTs weren't even able to do the full testing that they even had in their ambulance because the defendant was in so much distress that he wasn't even able to be, they weren't able to put the heart rate monitors on him that would have continuously monitored his heart rate, which is what the standard would have been for even an ambulance situation.

[00:03:20] Speaker 01:
So he required, in order to meet the screening requirements under EMTALA, the hospital should have done at least what the EMTs could do and more.

[00:03:29] Speaker 01:
And they did not do, the record is very clear that the hospital did absolutely nothing, not even listen to his heart.

[00:03:36] Speaker 02:
Well, that's why I wanted to clarify because it's kind of an, as you said, an odd procedural posture.

[00:03:40] Speaker 02:
There are the allegations in the complaint, which suggests to me that the vitals were done and communicated to hospital personnel.

[00:03:48] Speaker 02:
But then I know you have the benefit of additional discovery as well.

[00:03:52] Speaker 01:
Yes, so the facts and what I've attempted to allege, I hope it is clear in the complaint, but the facts are that the EMTs took his heart rate as they were able to in the ambulance and communicated that information to the hospital.

[00:04:04] Speaker 01:
That information is helpful to the hospital to understand what type of patient they're receiving, but the hospital under EMTALA is not allowed to just utilize that information and then skip that test on their own.

[00:04:13] Speaker 01:
They need to do a screening.

[00:04:15] Speaker 01:
pursuant to IMTALA when that patient comes in, even if it means duplicating things like heart rate, breathing rate.

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And of course, those things change rapidly over time with a patient that is suffering a real, true medical emergency.

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So, you know, the fact that his heart rate was taken in the ambulance maybe some minutes before arrival doesn't mean that that's what his heart rate is when he comes into the hospital.

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So the hospital needs to repeat that test so that they can see whether his vitals are stable, whether they're changing dramatically.

[00:04:41] Speaker 01:
That's another reason why that test is important.

[00:04:43] Speaker 02:
So in terms of what's happening below, what you're asking for is for this case to be sent back and the parties are ready to proceed to summary judgment?

[00:04:51] Speaker 01:
Yes, the summary judgment was fully briefed at the time that this ruling came down.

[00:04:55] Speaker 01:
So what we're asking for is the case to be remanded and proceed forward with a district court.

[00:05:03] Speaker 01:
Well, remanded and obviously the motion to dismiss would have to be heard again based on this court's instruction, but then presumably we would proceed forward.

[00:05:12] Speaker 02:
But it's fully briefed and the other motions ready to go.

[00:05:15] Speaker 01:
It is fully briefed.

[00:05:16] Speaker 01:
It was sitting with the court pending when this ruling came down essentially in its stead.

[00:05:26] Speaker 01:
Unless the court has any further questions, I will reserve my time for rebuttal.

[00:05:30] Speaker 03:
All right.

[00:05:31] Speaker 01:
Thank you.

[00:05:39] Speaker 00:
Good morning, Judge Wen, Judge Ikuta, Judge Enelo, Marshall Shepperton for Parkview Community Medical Center.

[00:05:46] Speaker 00:
And I would like to address my colleague, Ms.

[00:05:50] Speaker 00:
Conla's statement that EMTALA required the hospital to provide a whole panoply of tests.

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I think this goes to the problem with plaintiff's position that

[00:06:06] Speaker 00:
Collapses and tall as requirement of a screening with a general negligence standard of treatment, which is the province of state court negligence and other law.

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What they're what they've done is

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attempted to expand the analysis of screening into a full course of admission, in fact.

[00:06:34] Speaker 03:
So as I understand it, the argument is that Parkview did nothing, no screening at all.

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And the aside cases that say under EMTALA, no screening at all is an EMTALA violation.

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So can you address that?

[00:06:56] Speaker 00:
We believe it's a quite glaring mistake in statement to say that no screening was done at all.

[00:07:04] Speaker 00:
In fact, in the fourth amendment complaint, which is at issue in paragraph 50, it's judicially admitted that this patient was assigned an acuity rating of three.

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Now, they take issue with whether that was the correct acuity rating for a patient with these signs and symptoms.

[00:07:22] Speaker 02:
Was that based on the information conveyed by emergency personnel?

[00:07:26] Speaker 00:
In part, and I'm glad Your Honor brought that up, because Ms.

[00:07:30] Speaker 00:
Connog argues that under EMTALA, a hospital cannot rely on EMT findings in order to satisfy the screening requirement.

[00:07:42] Speaker 00:
There's no precedent for such a rule.

[00:07:44] Speaker 00:
That is not a rule.

[00:07:47] Speaker 00:
And the rule for screening under the text of the code section is quite simple, quite straightforward, and quite clear.

[00:07:56] Speaker 00:
It's that they simply need to determine whether or not an emergency medical exists or medical condition exists as defined below, which is a medical condition manifesting itself by acute symptoms of such severity

[00:08:13] Speaker 00:
that it appears that life and organ integrity is in jeopardy.

[00:08:17] Speaker 03:
So I'm looking at 1395 DD, which says that the hospital must provide for an appropriate medical screening examination within the capability of the hospital's emergency department, which I assume that's what opposing counsel is relying on.

[00:08:39] Speaker 00:
Correct, but a screening examination only needs to go so far as necessary to determine whether an emergency medical condition exists under the circumstances.

[00:08:52] Speaker 03:
So the opposing counsel also relies on our decision baker, which talks about desperate screening.

[00:09:03] Speaker 03:
and then makes allegations that other patients that were similarly situated had more screening than Mr. Shiloh did.

[00:09:12] Speaker 03:
So what's your response to that?

[00:09:18] Speaker 00:
Thank you for bringing that up, Judge Ikuta.

[00:09:21] Speaker 00:
When you read the vignettes as alleged in the fourth amendment complaint of the three other patients who were allegedly screened differently,

[00:09:31] Speaker 00:
The plaintiff has simply expanded the definition of screening to such a gaping degree that it encompasses the entire treatment.

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And they say that they were monitored for so many number of hours and they were all admitted.

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And this is an important point.

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Admission necessarily takes place after screening.

[00:09:54] Speaker 00:
we don't know what any of those patients underwent as far as a triage, because that's not even part of the allegations.

[00:10:02] Speaker 03:
At this point, we're just relying on the allegations of the complaint.

[00:10:05] Speaker 03:
And the complaint alleges that Parkview did no examination or screening of Shiloh.

[00:10:12] Speaker 03:
So looking just at the allegations of the complaint, what screening did Parkview provide?

[00:10:19] Speaker 03:
And just point me to that section of the complaint.

[00:10:23] Speaker 00:
The complaint, as I said before, paragraph 50 alleges that a... Paragraph, which paragraph?

[00:10:32] Speaker 00:
Paragraph 50, Your Honor.

[00:10:41] Speaker 03:
Okay.

[00:10:42] Speaker 00:
Pursuant to Parkview policy Oh Oh decedent was assigned an acuity rating of three so this was based on a visual and

[00:10:56] Speaker 00:
Information taking exam which the information taking being from the EMT.

[00:11:02] Speaker 03:
So you're inferring that from because this is in the passive voice.

[00:11:05] Speaker 03:
This even was assigned an acuity rating of three.

[00:11:09] Speaker 00:
Correct, correct.

[00:11:10] Speaker 03:
So you're inferring that the hospital

[00:11:13] Speaker 03:
did something in screening decedent, Mr. Shiloh.

[00:11:18] Speaker 00:
There are additional allegations regarding further encounters that the decedent had with the staff.

[00:11:28] Speaker 00:
Give me a moment.

[00:11:30] Speaker 00:
There are allegations that, I believe it's in the 30s.

[00:11:38] Speaker 00:
Oh, here, number 40.

[00:11:40] Speaker 00:
At approximately 7.32 PM,

[00:11:43] Speaker 00:
an admitting clerk was seen talking to the decedent.

[00:11:47] Speaker 00:
She, the admitting clerk, later stated that the decedent was altered mentally out of it, had difficulty time standing, was unbalanced, and was leaning against the counter for balance, falling down.

[00:12:00] Speaker 00:
This all amounts to a visual screening process and a screening examination of the plaintiff.

[00:12:08] Speaker 00:
Now, did it discover the

[00:12:13] Speaker 00:
overdose or septic condition that ultimately killed the patient?

[00:12:18] Speaker 00:
Apparently not.

[00:12:19] Speaker 00:
But that's all the province of state court negligence law, not MTOLA.

[00:12:24] Speaker 03:
Did you raise this argument in your brief?

[00:12:25] Speaker 03:
I'm just trying to... I don't remember this.

[00:12:32] Speaker 00:
Oh, I'm sorry.

[00:12:32] Speaker 00:
Can you say that again?

[00:12:33] Speaker 03:
Did you raise this argument in your briefing?

[00:12:35] Speaker 03:
I just don't remember it.

[00:12:38] Speaker 00:
I'm trying to address your honor's question as best I can, whether it was raised in the briefing.

[00:12:43] Speaker 00:
I think the briefing merely tried to get across that the screening was long finished by the time the encounter with security occurred that is really the crux of the plaintiff's complaint.

[00:13:01] Speaker 00:
The screening and the subsequent events are two different

[00:13:08] Speaker 00:
events that need to be analyzed separately.

[00:13:11] Speaker 00:
The screening is analyzed under EMTALA.

[00:13:14] Speaker 00:
The encounter with security and so forth is all going to be analyzed under state court law, state law.

[00:13:23] Speaker 02:
What's odd about this case, as I discussed with your opposing counsel, is that, you know, we're here on an appeal of a motion dismissed, so we're limited to the allegations, the complaint, and the complaint wasn't clear, at least to me, what the overlap is between the screening, because the complaint does lay out the fact that within

[00:13:44] Speaker 02:
four minutes or so of encountering hospital staff, the paragraph that you referenced, the vitals were taken, so some sort of screening was done by ambulance staff, and then the inferences, it was communicated to the hospital, and then he was assigned an QD rating of three.

[00:14:03] Speaker 02:
But yet we're aware that the parties have finished discovery.

[00:14:07] Speaker 02:
I can't recall the last time I saw a case like this where it was fully brief, discoveries done, so you were talking about what happened with the other comparator patients.

[00:14:17] Speaker 02:
You've got the benefit of all that, but yet we're now on a motion to dismiss instead of summary judgment.

[00:14:23] Speaker 00:
importantly here the plaintiff had the benefit of all that discovery when they drafted the Fourth Amendment complaint these two these two discovery and the multiple motion to dismiss process were were occurring simultaneously or in parallel at the trial court level and so they had the given the allegation

[00:14:44] Speaker 02:
I mean, I don't know if I'm doing a good job of piecing the complaint together, but there is an allegation that no screening was done at all.

[00:14:52] Speaker 02:
And now what they're asking for is send us back, we're ready to go to summary judgment, and the court can make that determination based on how the discovery turns out.

[00:15:02] Speaker 02:
What's wrong with that?

[00:15:04] Speaker 00:
Because the allegation that no screening was done is strictly conclusory.

[00:15:08] Speaker 00:
And it's at odds with

[00:15:11] Speaker 00:
other factual judicial admissions in the text of the pleading itself.

[00:15:16] Speaker 00:
So to say no screening at all was done, this assumes what is supposed to be alleged in concrete material facts in the complaint itself.

[00:15:28] Speaker 00:
So it won't do any good to send us back for a motion for summary judgment analysis because they already had the benefit of all that discovery when they drafted this complaint.

[00:15:39] Speaker 00:
And even as alleged,

[00:15:41] Speaker 00:
It's not good enough and doesn't pass muster.

[00:15:44] Speaker 00:
Thank you, Your Honor.

[00:15:45] Speaker 00:
It appears my time is up.

[00:15:47] Speaker 03:
Thank you.

[00:15:48] Speaker 03:
You have some time for rebuttal.

[00:15:56] Speaker 01:
Thank you, just addressing a few points that were made.

[00:15:59] Speaker 01:
I'm looking at the Intala Statute 1395 TD, which was attached as an addendum to our opening brief subsection E.

[00:16:09] Speaker 01:
to defines what the term participating hospital means under that code.

[00:16:14] Speaker 01:
So with respect to whether or not there's any precedent for whether a hospital can, I guess, essentially piggyback off of the data that is taken by EMT personnel or other third parties.

[00:16:25] Speaker 01:
The definition of participating hospital under the EMTALA statute says, by quote, means a hospital that has entered into a provider agreement under 1395 CC, the Medicare treatment provision.

[00:16:38] Speaker 01:
So the statute itself says that the hospital screening examination that's referenced in the statute must be done by a Medicare approved emergency hospital.

[00:16:48] Speaker 01:
not by any other third provider.

[00:16:50] Speaker 01:
So hopefully that clarifies whether or not the hospital was allowed to utilize EMT data.

[00:16:57] Speaker 01:
With respect to what is actually alleged in the complaint, and that is of course what's before the court, the complaint alleges in multiple places that there was no medical screening given whatsoever.

[00:17:07] Speaker 01:
This attempt to kind of parse out, well he talked to an admitting clerk or some such thing,

[00:17:12] Speaker 01:
There's no allegations that he was given any medical treatment, and admitting clerk is a high school level person who takes your information and makes sure you're in the system.

[00:17:20] Speaker 01:
She is in no way qualified to give a medical screening exam underneath the code provision, and there's no allegations that she provided or even attempted to provide any medical care.

[00:17:29] Speaker 01:
With respect to the acuity rating paragraph, again, there's no allegation that he received any examination, treatment, or screening when he was given that acuity score.

[00:17:40] Speaker 01:
In fact, there's no allegations that he was even in the hospital when the acuity score was given.

[00:17:46] Speaker 01:
So there's no allegations in the complaint that would support the hospital giving him any medical treatment whatsoever.

[00:17:51] Speaker 01:
With respect to the allegation or the argument that those allegations are conclusory, there's many factual

[00:17:59] Speaker 01:
portions of the complaint which support that, such as the fact that he was removed less than one minute after his transfer to the hospital.

[00:18:05] Speaker 01:
It's very hard to do a medical screening exam in less than a minute.

[00:18:08] Speaker 01:
I also listed out in the complaint all of the tests that he was not given, including very basic ones like listening to his heart or checking his breathing rate, all the way including more extensive tests that you would still...

[00:18:24] Speaker 01:
feel like you would see in this type of situation.

[00:18:26] Speaker 01:
So there's absolutely no complaints or factual allegations alleged in this complaint that would support the allegation that he was given a screening exam.

[00:18:34] Speaker 01:
And that is what is before the court on this motion.

[00:18:41] Speaker 01:
I guess I will forfeit the rest of my time unless the court has any questions.

[00:18:46] Speaker 01:
Apparently not.

[00:18:47] Speaker 03:
Thank you.

[00:18:47] Speaker 03:
Thank both sides for the argument.

[00:18:49] Speaker 03:
The case of Sandra Shaw versus HMC Healthcare is submitted.