The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ELIZABETH O’BRIEN, Individually and as UNPUBLISHED
Personal Representative of the ESTATE OF April 16, 2026
BERNARD FRANCIS O’BRIEN III 11:17 AM
Plaintiff-Appellant,
v No. 376148
Washtenaw Circuit Court
TRINITY HEALTH-MICHIGAN, doing business as LC No. 25-000064-NO
TRINITY HEALTH ANN ARBOR HOSPITAL,
Defendant-Appellee.
Before: O’BRIEN, P.J., and FEENEY and WALLACE, JJ.
PER CURIAM.
Plaintiff, Elizabeth O’Brien, as personal representative of the Estate of Bernard Francis
O’Brien III,1 brought suit against the defendant, Trinity Health Ann Arbor Hospital (Trinity),
asserting a cause of action for Trinity’s violation of the Emergency Medical Treatment and Labor
Act (EMTALA), 42 USC 1395dd. Plaintiff appeals as of right from the trial court’s order granting
Trinity summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim), MCR
2.116(C)(10) (no genuine issue of material fact), as and additionally pursuant to MCR 2.116(C)(8)
and/or (C)(10) because the claim sounds in medical malpractice and plaintiff has failed to comply
with the requirements of MCL 600.2912b and MCL 600.2012d.
We reverse the trial court’s grant of summary disposition pursuant to MCR 2.116(C)(8),
affirm its grant of summary disposition pursuant to MCR 2.116(C)(10), and, in light of that
affirmance, decline to consider the issue of whether plaintiff’s claim sounded in medical
1
While the caption to plaintiff’s complaint indicates that Elizabeth O’Brien brought suit in both
an individual and representative capacity, the caption and body of the complaint only refer to one
“plaintiff” and the body of the complaint contains no allegations on behalf of Elizabeth O’Brien
individually. We will accordingly only refer to the Estate of Bernard Francis O’Brien III as the
plaintiff herein.
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malpractice such that summary disposition is appropriate where plaintiff failed to comply with the
procedural requirements of such a claim.
I. FACTS AND PROCEEDINGS
Plaintiff’s decedent, Bernard Frances O’Brien III, presented to the emergency department
at Trinity Health Emergency Center—Livingston on July 13, 2023 with complaints of chest pain
and left leg pain and weakness immediately after having experienced a sudden “pop” sensation in
his back. A computed tomography angiography (CTA) revealed a Type A aortic dissection2
extending from the aortic root through the right iliac artery. Mr. O’Brien was accepted for
transport to Trinity Health Ann Arbor Hospital by an emergency department physician at that
facility. While he was being transported, radiology advised that
patient had significant decreased flow in all four main arteries in the neck and brain.
We did speak with Dr. Xavier with neuro IR, who said that the patient will likely
need to be transferred to the University of Michigan Hospital. As patient was
already on his way down to Trinity Health Ann Arbor Hospital, we agree that he
will likely need to be transferred once he makes it to that emergency department.
At almost the same time as Mr. O’Brien’s arrival at defendant’s emergency department in Ann
Arbor, defendant’s vascular surgeon, who had agreed to take the case, became unable to perform
the emergent surgical repair of the aortic dissection due to his need to attend to an existing patient
on an emergency basis and suggested transfer to the University of Michigan Hospital.
Preparation for this emergency transfer began immediately, and Mr. O’Brien was
transfused with an additional unit of blood due to concerns for hemorrhage. Trinity’s emergency
department provider note further documents that its emergency department physician
[h]ad a prolonged discussion with our vascular surgeon in order to determine what
the fastest way to get this patient to an operating room was, whether here or at the
University of Michigan. The patient was admitted to the University of Michigan
promptly, and an emergent MICU[3] ambulance transfer was requested. However,
a BLS[4] crew was sent instead. Due to the patient’s acuity and the need for ongoing
monitoring and possible intervention [en] route, this BLS crew was turned away
and MICU crew was sent for the patient.
Immediately prior to arrival by the MICU crew the patient started to
complain about increasing pain in his left lower extremity. He was given fentanyl
2
A life-threatening, emergency condition involving a tear in the ascending aorta (near the heart),
usually requiring immediate open-heart surgery.
<https://my.clevelandclinic.org/health/diseases/16743-aortic-dissection> (accessed April 1,
2026).
3
Mobile intensive care unit.
4
Basic life support.
-2-
for analgesia. His vitals remained unchanged throughout his stay which was
approximately 90 minutes. He was then transported to the University of Michigan
in critical clinical condition.
An emergency transfer record was prepared and attested to by defendant’s emergency
department physician authorizing the transfer. This pre-printed form contains a separate, bordered
“Section A” that, in turn, sets out three numbered boxes, directed the person completing the form
to “Check one.” The second of these numbered boxes was checked, which states: “I hereby certify
that the patient’s emergency medical condition has been stabilized such that, within reasonable
medical probability, no material deterioration of the patient’s condition is likely to result or occur
during transfer.” A digital depiction of this box from the form is shown below:
As can be seen, the third of these numbered boxes, which states “Patient’s emergency medical
condition has not been stabilized” is not checked.
Below Section A on the form is a separate, bordered “Section B,” entitled “Hospital
Obligation,” providing in part pertinent to this appeal:
The hospital must provide you with a medical screening examination to determine
if an emergency condition or pregnancy with contractions exist. If they exist, the
hospital must provide the additional examination and/or treatment necessary to
stabilize the condition unless the benefits of transfer outweighs the risks of
transfer. . . . If a transfer is necessary, a transfer certificate will be completed and
medically appropriate transfer arranged.
In another separate bordered, section below Section B of the emergency transfer record
labelled “Reasons or Benefits of Transfer,” defendant’s physician checked a box stating: “Services
of specialty not available here (specify):” and wrote into the space provided “cardiothoracic
surgery.”
At the top of the column of text to the right of the foregoing language on the form (and to
the immediate right of Section A) is another separate, bordered, unlabelled section containing two
additional, unnumbered boxes, and defendant’s physician checked (and attested to) the second of
those two boxes, which states:
I hereby certify that based on the reasonable risks and benefit to the patient
and based upon the information available at the time of the patient’s transfer as
outlined, the medical benefits reasonably expected from the provision of the
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appropriate medical treatment at another medical facility outweigh the increased
risks, if any, to the individual’s medical condition (or in the case of labor, to the
unborn child) from effecting the transfer.
A digital depiction of this box from the form is shown below:
In a separate, bordered “Section C” defendant’s physician checked a box stating “[t]he
hospital has, within it’s [sic] capacity, provided medical treatment to minimize risk to the
individual’s health (and in the case of a woman in labor, the health of the unborn child),” and this
section is further completed by the physician to state “Dr. Yang has been contacted and Michigan
Medicine (hospital) has been contacted and have agreed to accept transfer and provide appropriate
treatment, having the available space and qualified personnel for this treatment.” Defendant’s
physician likewise signed and dated Section C of the form, attesting to its statements.
Tragically, Mr. O’Brien died during this MICU transfer to University of Michigan
Hospital, and this lawsuit on behalf of his estate followed.
Plaintiff’s complaint in this matter asserts a single cause of action for violation of
EMTALA and alleges, in part:
25. That Plaintiff’s decedent was in fact, not stable and suffered from a
critical and emergency medical condition at all times while in Defendant’s custody
and care of which they had actual knowledge.
26. That in fact, Plaintiff’s decedent died of his emergency medical
condition since it was not stabilized by the Defendant, during the transfer to another
hospital.
27. That Defendant, in violation of EMTALA, failed to stabilize Plaintiff’s
decedent while under their care and custody and further failed to stabilize him for
transfer to another hospital.
28. That as a direct and proximate result of the Defendant’s negligent
violation of EMTALA, Plaintiff’s decedent . . . sustained severe bodily injuries
which resulted in conscious pain and suffering and resulted in death[.]
-4-
Trinity eventually brought a motion seeking summary disposition of plaintiff’s complaint
pursuant to MCR 2.116(C)(8) and (C)(10) based upon defendant having complied with the
requirements of EMTALA and because plaintiff failed to comply with the procedural requirements
of filing a medical malpractice claim despite the fact that the claim sounds in medical malpractice.
Plaintiff filed a response contending that defendant did not comply with EMTALA; it failed
to stabilize Mr. O’Brien’s aortic dissection in violation of EMTALA, causing his death. Plaintiff
cited to Cleveland Clinic literature indicating that a Type A aortic dissection is an emergency
medical condition and that the only means to stabilize or treat it is by way of immediate surgery.
It also quoted from the CMS[5] Statement of Deficiencies and Plan of Correction for this incident
that “the required stabilization for an aortic dissection is surgical repair.” The response further
argued that plaintiff was instead entitled to summary disposition based upon “the CMS
investigation finding EMTALA violations which were agreed to by the [d]efendant as well as
applicable law.”
Trinity’s reply contended that EMTALA did not forbid transfer, it merely restricts it until
the patient is stabilized, if that is possible. It contended that Trinity stabilized Mr. O’Brien as best
it could and checked the second of the two unnumbered boxes to the immediate right of Section
A, quoted above, certifying that, based on the information available at the time, “the medical
benefits reasonably expected from the provision of the appropriate medical treatment at another
medical facility outweigh the increased risks, if any, to the individual’s medical condition . . . from
effecting the transfer,” where no surgeon was available at defendant’s facility to perform the
necessary operation on the aortic dissection. The reply further contended that the CMS Statement
of Deficiencies and Plan of Correction plaintiff sought to rely on to demonstrate its entitlement to
summary disposition was not dispositive, because it contained no findings regarding the hospital’s
improper motive or causation, and instead addressed deficiencies in the formatting of the
emergency transfer record form, not whether EMTALA required Mr. O’Brien to be stabilized by
surgical intervention before any transfer.
After hearing the arguments of counsel at the hearing on Trinity’s motion, the trial court
held:
I am convinced the defendant did comply with EMTALA, that it was an appropriate
transfer. Statute allows transferring hospital provided medical treatment within its
capacity, receiving hospital agreed to accept the transfer. Transfer effectuated
through qualified personnel in transportation. Under the statute, the hospital may
not transfer unless physician certifies based on information available at the time of
the transfer the medical benefits of going to the other facility outweigh the increased
risk to the individual.
. . . I don’t think there’s a dispute about the facts. I agree that you think
Trinity was trying to get . . . Mr. O’Brien to—the quickest way to get in front of a
surgeon. And so they were in a Catch 22. We sit here and watch this guy die or
5
Centers for Medicare & Medicaid Services.
-5-
we try to get him over to U of M as fast as we can, because that’s going to—that is
going to get him under the care of a surgeon faster.
So and I agree, . . . the purpose of this statute was to try to avoid dumping
patients, and that was not the case here, they’re absolutely just trying to get the
patient . . . to a surgeon as quickly as they could.
Also, [I] accept [the] defense argument that you can’t avoid the
requirements of a med mal claim by renaming it in violation of EMTALA. For all
those reasons, all reasons argued by the defendant, I will sign their proposed order.
Defendant’s motion for summary disposition is granted. The plaintiff’s
counter request for summary disposition under [MCR 2.116(I)(2)] is denied. The
complaint is dismissed with prejudice.
Plaintiff has failed to state a claim upon which relief can be granted
regarding the EMTALA claims, because the hospital fulfilled the EMTALA
requirements [the case is] dismissed under [MCR 2.116(C)(8)]. There’s no genuine
material fact regarding EMTALA claims because the evidence shows the hospital
fulfilled the EMTALA requirements dismissed under [MCR 2.116(C)(10)].
The claim [states] medical malpractice [and] should be dismissed under
[MCR 2.116(C)(8)] and [(C)(10)] for failure to comply with MCL 600.2912(b) and
600.2012(d.) This is a resolution of the claims and is a final order.
The trial court entered a written order consistent with this ruling on the record that same
day and defendant filed this timely appeal of right therefrom.
II. STANDARD OF REVIEW
“This Court reviews the grant or denial of summary disposition de novo to determine if the
moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118;
597 NW2d 817 (1999).
“A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim.” Krieger v Dep’t
of Environment, Great Lakes, & Energy, 348 Mich App 156, 171; 17 NW3d 700 (2023). In other
words, such a motion “determines whether the opposing party’s pleadings allege a prima facie
case.” Stehlik v Johnson, 206 Mich App 83, 85; 520 NW2d 633 (1994). For such a motion
[w]e accept all factual allegations in the complaint as true, deciding the motion on
the pleadings alone. We also construe all well-pleaded factual allegations in a light
most favorable to the nonmoving party. A motion under MCR 2.116(C)(8) may
only be granted when a claim is so clearly unenforceable that no factual
development could possibly justify recovery. [Krieger, 348 Mich App at 171
(quotation marks and citations omitted).]
“A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim.” El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “In bringing a motion
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for summary disposition pursuant to MCR 2.116(C)(10), the moving party bears the initial burden
of supporting its position . . . .” Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28
(1999).
The burden then shifts to the opposing party to establish that a genuine issue of
disputed fact exists. Where the burden of proof at trial on a dispositive issue rests
on a nonmoving party, the nonmoving party may not rely on mere allegations or
denials in pleadings, but must go beyond the pleadings to set forth specific facts
showing that a genuine issue of material fact exists. If the opposing party fails to
present documentary evidence establishing the existence of a material factual
dispute, the motion is properly granted.” [Id. at 455 (citations omitted).]
In reviewing a (C)(10) motion, a court must examine the pleadings, affidavits, depositions,
admissions, and any other documentary evidence submitted by the parties and, drawing all
reasonable inferences therefrom in favor of the nonmoving party, determine whether a genuine
issue of material fact exists. MCR 2.116(G)(5); Maiden, 461 Mich at 120; Downey v Charlevoix
Co Bd of Road Comm’rs, 227 Mich App 621, 626; 576 NW2d 712 (1998). A genuine issue of fact
exists when reasonable minds could differ as to the conclusions to be drawn from the evidence.
West v Gen’l Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. EMTALA
The federal legislature’s intent in enacting EMTALA was to address “incidents where
hospital emergency rooms allegedly, based only on a patient’s financial inadequacy, failed to
provide a medical screening that would have been provided a paying patient, or transferred or
discharged a patient without taking steps that would have been taken for a paying patient.” Cleland
v Bronson Health Care Group, Inc, 917 F2d 266, 268 (CA 6, 1990). EMTALA imposes on
“participating hospitals”6 such as Trinity the duty to provide “an appropriate medical screening
examination within the capability of the hospital’s emergency department” to “any individual
[who] comes to the emergency department” and seeks examination or treatment. See id., quoting
42 USC 1395dd(a). Further, if the “hospital determines that the individual has an emergency
medical condition,” EMTALA imposes a duty on the hospital to provide necessary stabilizing
treatment, and the hospital may not transfer a patient who is not stabilized (except in certain
defined circumstances). See Cleland, 917 F2d at 268, quoting 42 USC 1395dd(b)(1), citing 42
USC 1395dd(c)(1).
Whether defendant provided appropriate medical screening is not at issue in the present
case. However, that section of the statute contains some language that is pertinent to demonstrating
a prima facie EMTALA case. Accordingly, with regard to providing necessary stabilizing
6
“The term ‘participating hospital’ means a hospital that has entered into a provider agreement
under [42 USC 1395dd].” 42 USC 1395dd(e)(2). “Hospitals that execute Medicare provider
agreements with the federal government pursuant to 42 USC 1395cc must treat all human beings
who enter their emergency departments in accordance with [EMTALA].” Burditt v United States
Dep’t of Health and Human Services, 934 F2d 1362, 1366 (CA 5, 1991).
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treatment and not transferring an unstabilized patient except under certain specified circumstances,
EMTALA provides, in part pertinent to this appeal:
(a) Medical screening requirement
In the case of a hospital that has a hospital emergency department, if any individual
(whether or not eligible for benefits under this subchapter) comes to the emergency
department and a request is made on the individual’s behalf for examination or
treatment for a medical condition, the hospital must provide for an appropriate
medical screening examination within the capability of the hospital’s emergency
department, including ancillary services routinely available to the emergency
department, to determine whether or not an emergency medical condition (within
the meaning of subsection (e)(1)) exists.
(b) Necessary stabilizing treatment for emergency medical conditions and labor
(1) In general
If any individual (whether or not eligible for benefits under this subchapter) comes
to a hospital and the hospital determines that the individual has an emergency
medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical
examination and such treatment as may be required to stabilize the medical
condition, or
(B) for transfer of the individual to another medical facility in accordance with
subsection (c).
* * *
(c) Restricting transfers until individual stabilized
(1) Rule
If an individual at a hospital has an emergency medical condition which has not
been stabilized (within the meaning of subsection (e)(3)(B)), the hospital may not
transfer the individual unless—
(A) . . .
(ii) a physician (within the meaning of section 1395x(r)(1) of this title) has signed
a certification that based upon the information available at the time of transfer, the
medical benefits reasonably expected from the provision of appropriate medical
treatment at another medical facility outweigh the increased risks to the individual
and, in the case of labor, to the unborn child from effecting the transfer, . . .
. . . and
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(B) the transfer is an appropriate transfer (within the meaning of paragraph (2)) to
that facility.
A certification described in clause (ii) or (iii) of subparagraph (A) shall include a
summary of the risks and benefits upon which the certification is based.
(2) Appropriate transfer
An appropriate transfer to a medical facility is a transfer—
(A) in which the transferring hospital provides the medical treatment within its
capacity which minimizes the risks to the individual’s health and, in the case of a
woman in labor, the health of the unborn child;
(B) in which the receiving facility--
(i) has available space and qualified personnel for the treatment of the individual,
and
(ii) has agreed to accept transfer of the individual and to provide appropriate
medical treatment . . . .
* * *
(D) in which the transfer is effected through qualified personnel and transportation
equipment, as required including the use of necessary and medically appropriate
life support measures during the transfer; . . .
* * *
(d) Enforcement
* * *
(2) Civil enforcement
(A) Personal harm
Any individual who suffers personal harm as a direct result of a participating
hospital’s violation of a requirement of this section may, in a civil action against
the participating hospital, obtain those damages available for personal injury under
the law of the State in which the hospital is located, and such equitable relief as is
appropriate. [42 USC 1395dd.]
IV. MCR 2.116(C)(8)
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Based upon the foregoing statutory language, to allege a prima facie private cause of action
against a hospital for violation of the stabilization or transfer provisions of EMTALA, a plaintiff
must assert that: (1) the defendant is a “participating hospital” covered by EMTALA with an
emergency department, 42 USC 1395dd(a) and (e); (2) the patient came to the hospital seeking
treatment, 42 USC 1395dd(a); (3) the hospital had actual knowledge of the patient’s emergency
medical condition, 42 USC 1395dd(a)-(b); (4) the hospital committed one or more EMTALA
violations,7 42 USC 1395dd(a)-(c); and (5) the plaintiff suffered personal harm as the result of the
hospital’s EMTALA violation, 42 USC 1395dd(d)(2)(A).
Plaintiff’s complaint alleges each of these prima facie elements of a cause of action for
violation of the stabilization or transfer provisions of EMTALA. In particular, as to whether
Trinity committed one or more EMTALA violations, plaintiff’s complaint alleges that Trinity “in
violation of EMTALA, failed to stabilize [p]laintiff’s decedent while under their care and custody
and further failed to stabilize him for transfer to another hospital,” and “[t]hat as a direct and
proximate result of the [d]efendant’s negligent violation of EMTALA, [p]laintiff’s decedent . . .
sustained severe bodily injuries which resulted in conscious pain and suffering and resulted in
death[.]
Trinity does not contest the prima facie elements of an EMTALA claim set forth above.
Rather, it asserts that a statutory exception to the general rule that a participating hospital may not
transfer an unstabilized patient is applicable. 42 USC §1395dd(c)(1)(A)(ii) and (c)(2)(A).
Accordingly, because plaintiff alleges prima facie elements of a cause of action for
violation of the stabilization or transfer provisions of EMTALA, the trial court erred in granting
summary disposition of plaintiff’s EMTALA claim pursuant to MCR 2.116(C)(8) and we reverse
that portion of its order.
V. MCR 2.116(C)(10)
However, we find the trial court properly granted summary disposition of the complaint
pursuant to MCR 2.116(C)(10) because plaintiff failed to present sufficient evidence to create an
issue of material fact as to causation: whether defendant’s emergency department physician having
erroneously indicated on the emergency transfer record that Mr. O’Brien was stabilized
(notwithstanding that it otherwise transferred the patient pursuant to a statutory exception to the
general rule under EMTALA that a participating hospital may not transfer an unstabilized patient),
was a direct and proximate cause of Mr. O’Brien’s death.
Trinity argued in its motion for summary disposition and argues on appeal that, under the
specific facts of the present case, it was permitted to transfer Mr. O’Brien without having first
7
Some jurisdictions also require proof of an improper motive, but only as to actions based upon
violation of § 1395dd(a)’s medical screening requirement. Roberts v Galen of Virginia, Inc, 525
US 249, 252-253; 119 S Ct 685; 142 L Ed 2d 648 (1999), citing Cleland v Bronson Health Care
Group, Inc, 917 F2d 266 (CA 6, 1990). Absent a conflict among the various federal appellate
circuits, we are bound by the holding of a federal appellate court concerning interpretation of a
federal statute. Abela v General Motors Corp, 257 Mich App 513, 523; 669 NW2d 271 (2003).
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stabilized him based upon its emergency department physician certifying that “based upon the
information available at the time of transfer, the medical benefits reasonably expected from the
provision of appropriate medical treatment at another medical facility outweigh the increased risks
to the individual . . . .” and further attesting that “[t]he hospital [has], within its capacity, provided
medical treatment to minimize risk to the individual’s health . . . .” 42 USC §1395dd(c)(1)(A)(ii)
and (c)(2)(A). Pursuant to Smith, “[t]he burden then shift[ed] to the opposing party to establish
that a genuine issue of disputed fact exists.” Smith, 460 Mich at 455.
Plaintiff contends in response to Trinity’s argument that Trinity’s emergency physician, in
completing the emergency transfer record, checked the second numbered box and certified that
“the patient’s emergency medical condition has been stabilized such that, within reasonable
medical probability, no material deterioration of the patient’s condition is likely to result or occur
during transfer,” when in fact Mr. O’Brien was not stabilized and “it was a certainty that he would
deteriorate and die without surgery.” Plaintiff contends that the CMS investigators’ conclusion
that Trinity thereby violated EMTALA creates an issue of material fact so that its private cause of
action should be permitted to proceed.
We disagree that the CMS Statement of Deficiencies and Plan of Correction creates an
issue of material fact that the identified EMTALA violation was a direct and proximate cause of
Mr. O’Brien’s death and neither does plaintiff comes forward with expert testimony or other
evidence to establish an issue of material fact as to causation.
At least three unpublished decisions of the Sixth Circuit have uniformly “affirmed grants
of summary judgment against plaintiffs who . . . failed to offer any expert testimony establishing
that the patient’s ultimate injury was caused by an alleged EMTALA violation, as opposed to the
medical conditions bringing them to the hospital in the first place.” Galuten v Williamson Co Hosp
Dist, unpublished opinion of the United States Court of Appeals for the Sixth Circuit, issued July
20, 2021 (Case No. 21-5007), p 7, citing Romine v St Joseph Health Sys, 541 F Appx 614, 618-
619 (CA 6, 2013); Scott v Mem Health Care Sys, Inc, 660 F Appx 366, 372-374 (CA 6, 2016).8
Galuten summarized and followed the earlier Scott and Romine decisions, likewise finding
causation in its case “turned on technical medical questions a lay jury is not equipped to answer”
as opposed to a case “that could turn on common knowledge.” Galuten, unpub op at 8.
Here, the causation issue is whether the emergency department physician erroneously
indicating that Mr. O’Brien’s emergency medical condition has been stabilized (but otherwise
complying with EMTALA and endeavoring to transfer Mr. O’Brien to University of Michigan
Hospital where he could obtain the emergency cardiothoracic surgical repair of his Type A aortic
dissection pursuant to the statutory exception to the general rule that a participating hospital may
8
Absent a conflict among the various federal appellate circuits, we are bound by the holding of a
federal appellate court concerning interpretation of a federal statute. Abela v General Motors
Corp, 257 Mich App 513, 523; 669 NW2d 271 (2003). Federal circuit court decisions construing
state law are not binding, although this Court may choose to adopt them as persuasive. Allen v
Owens-Corning Fiberglas Corp, 225 Mich App 397, 402; 571 NW2d 530 (1997).
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not transfer an unstabilized patient),9 caused Mr. O’Brien to die, as opposed to the aortic dissection
itself. We think that such a causation opinion on such an issue would require familiarity with the
medical conditions, timing, and treatment issues to determine whether the EMTALA violation of
incorrectly indicating that the medical condition was stabilized for his transfer “somehow
exacerbated his already critical condition” and “turns on questions of medical judgment beyond a
jury’s common knowledge.” Galuten, unpub op at 7-8, quoting Scott, 660 F Appx at 373, citing
Romine, 541 F Appx at 618-619. In the present case, in response to Trinity’s motion for summary
disposition and on appeal plaintiff has offered no evidence of causation, let alone expert testimony
of same. Plaintiff has failed to demonstrate a question of material fact as to that prima facie
element of a private EMTALA cause of action.
Plaintiff notes that the CMS investigators concluded that defendant violated EMTALA
based on its emergency department physician erroneously certifying that Mr. O’Brien was stable,
and further, that Trinity’s president “signed off on the violations, agreed with them, and further
agreed to plans of correction.” However, a review of the CMS Statement of Deficiencies and Plan
of Action reveals that Trinity’s president merely agreed to modify and replace the emergency
transfer record form, provide training, and audit EMTALA transfers, in an effort to avoid future
erroneous indication that a patient has been stabilized prior to transfer. As the Sixth Circuit held
in Romine, we find this does nothing to demonstrate an issue of material fact that that erroneous
certification was a direct and proximate cause of Mr. O’Brien’s ultimate injury for purposes of
plaintiff’s private cause of action. Romine, 541 F Appx at 621. Further, we note that, like the
plaintiff in Romine, plaintiff “has not identified a single case in which a CMS letter, or even a
subsequent final decision from CMS, was held to have any legal significance in an EMTALA
case.” Id. Like Romine, we find that Trinity’s president’s actions documented in the CMS
Statement of Deficiencies and Plan of Action are “nothing approaching an adjudication with an
opportunity to litigate” that would potentially entitle the CMS decision to preclusive effect. Id.
and 621-622, citing Astoria Fed S&L Assoc v Solimino, 501 US 104, 107; 111 S Ct 2166; 115 L
Ed 2d 96 (1991).
We therefore affirm the trial court’s grant of summary disposition of plaintiff’s EMTALA
claim pursuant to MCR 2.116(C)(10). In light of this ruling, we need not address the trial court’s
alternative basis for summary disposition pursuant to MCR 2.116(C)(8) and/ or (C)(10) based upon
plaintiff’s claim sounding in medical malpractice and plaintiff having failed to comply with the
procedural requirement for bringing such a claim pursuant to MCL 600.2912b and MCL
600.2012d.
As stated herein, we reverse the trial court’s grant of summary disposition pursuant to MCR
2.116(C)(8) and affirm its grant of summary disposition pursuant to MCR 2.116(C)(10).
/s/ Colleen A. O’Brien
/s/ Kathleen A. Feeney
/s/ Randy J. Wallace
9
42 USC §1395dd(c)(1)(A)(ii) and (c)(2)(A).
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