# Guzman Ex Rel. Guzman v. Memorial Hermann Hospital System

> District Court, S.D. Texas · June 16, 2009 · 637 F. Supp. 2d 464

URL: https://www.frixlaw.com/law-library/cases/2383338

## Case

- **Full name:** Wendy GUZMAN, Individually and as Next Friend of T. Guzman, a Minor, Plaintiff, v. MEMORIAL HERMANN HOSPITAL SYSTEM, D/B/A Memorial Hermann Southeast Hospital, Defendants
- **Court:** District Court, S.D. Texas
- **Decided:** June 16, 2009
- **Citations:** 637 F. Supp. 2d 464; 2009 U.S. Dist. LEXIS 50574
- **Precedential status:** Published
- **Opinion:** Opinion by Rosenthal
- **Judges:** Lee H. Rosenthal
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2383338

## How later opinions describe it (automated extraction)

- explaining hospital must transfer only if hospital has actual knowledge of emergency medical condition, EMTALA does not establish a federal malpractice cause of action nor nationalized standard of medical care, and finding that the unavailability of a bed at a receiving hospit…

## Opinion text

MEMORANDUM AND OPINION
LEE H. ROSENTHAL, District Judge.
This case arises out of medical care provided to a child in a hospital emergency room in February 2006. Wendy Guzman, individually and on behalf of her son, “T,” sued Memorial Hermann Hospital System, d.b.a. Memorial Hermann Southeast Hospital (“Memorial Hermann”) in November 2007. Guzman filed this suit in Texas state court, asserting a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (“EMTALA”), and Memorial Hermann timely removed on the basis of federal-question jurisdiction. Guzman amended her complaint to add state-law negligence claims against Memorial Hermann, Philip Haynes, M.D., Ph.D., Memorial Southeast Emergency Physicians, LLP (“MSEP”), and Emergency Consultants, Inc. (“ECI”).
Dr. Haynes was the emergency-room physician who saw T. at Memorial Hermann. Dr. Haynes was a partner in MSEP, a limited liability partnership of emergency-room physicians. MSEP is a Michigan LLP registered to do business in Texas. MSEP had a contract with Memorial Hermann to provide emergency-physician staffing to the hospital. ECI, a Michigan corporation with its principal place of business in Michigan, had an administrative services agreement with MSEP to provide administrative and support services. On December 17, 2008, this court granted ECI’s motion to dismiss for lack of personal jurisdiction. (Docket Entry No. 53).
Memorial Hermann has moved for summary judgment on Guzman’s EMTALA claims. (Docket Entry No. 95). Guzman responded, (Docket Entry No. 100), and moved for a continuance to conduct discovery under Rule 56(f). (Docket Entry No. 99). Memorial Hermann replied, (Docket Entry No. 103), Guzman filed a surreply, (Docket Entry No. 106), and Memorial Hermann filed a supplemental reply, (Docket Entry No. 108). Memorial Hermann also moved to strike the affidavit of Guzman’s expert witness, Dr. Stephen Hayden, M.D., (Docket Entry No. 104), and Guzman responded, (Docket Entry No. 107). After this court heard oral argument on the parties’ motions on May 28, 2009, Guzman filed a supplemental response, (Docket Entry No. 110), and Memorial Hermann filed a supplemental reply, (Docket Entry No. 113).
Based on a careful review of the motions, responses, and replies, the parties’ submissions, the arguments of counsel, and the applicable law, this court grants Memorial Hermann’s motion for partial summary judgment and grants in part and denies in part Memorial Hermann’s motion to strike. Guzman’s Rule 56(f) motion is
*471
denied. The reasons for these rulings are explained below.
I. The Summary Judgment Evidence
A. Factual Background
On February 12, 2006, Guzman’s son “T,” then seven years old, was feeling ill. His parents took him to the emergency room at Memorial Hermann in Houston, Texas. They arrived at the hospital at 7:39 a.m. and were taken to the triage area at 7:42 a.m. Guzman reported that her son had vomited seven or eight times during the night and complained of nausea. Guzman also stated that the child had been running a fever, but that she had not recorded his temperature with a thermometer. The triage nurse recorded the child’s temperature as 98.1 degrees, his blood pressure as 110/67, and his heart rate as 145. Under Memorial Hermann policy, all pediatric patients with a heart rate above 140 are categorized as Emergent Level 2. The triage nurse, April Ganz, placed Guzman’s son in this category based solely on his elevated heart rate. Memorial Hermann policy required all patients categorized as Emergent Level 2 to be seen by a physician. In accordance with this policy, Nurse Ganz completed triage at 7:47 a.m. and took the child to an examination room to be seen by Dr. Haynes.
At 7:55 a.m., an emergency room nurse, Frank Blain, examined T., who complained of cough and generalized pain. (Docket Entry No. 95, Ex. A, at MHSE-0013). Guzman had given T. Motrin at 4:00 a.m. and Tylenol at 6:30 a.m.
(Id.).
Nurse Blain noted that the child’s respiratory effort was “even, unlabored, relaxed,” his respiratory pattern was “regular symmetrical,” and his breath sounds were “clear bilaterally.”
(Id.,
at MHSE-0014).
At 8:00 a.m., Dr. Haynes began taking the child’s medical history in advance of performing a physical examination.
(Id.,
at MHSE-0009, MHSE-0010). Dr. Haynes learned that the child had been coughing, vomiting, and complaining of nausea. Dr. Haynes then examined “T.” In his deposition, Dr. Haynes testified that the child was “clinically stable, his saturation on room air was normal. He had clear breath sounds bilaterally, had no retractions, was in no respiratory distress.” (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 24:4-7). At this point, Dr. Haynes believed that the child likely had a virus. At 8:34 a.m., Dr. Haynes ordered several laboratory tests, including a complete blood count (CBC). A CBC includes a white blood cell differential test, which examines and classifies 100 white blood cells. One of the classifications is a band count. A high band count indicates that a patient is fighting off infection.
At approximately 9:10 a.m., the CBC results were made available on the hospital’s computer, except for the white blood cell differential test results. The automated processor for the CBC had generated an abnormality flag, requiring a manual white blood cell differential test. That manual test was completed and the results available on the hospital’s computer system by 9:35 a.m., but Dr. Haynes did not see them that day. (Docket Entry No. 100, Ex. F, Deposition of Doug Mitchell, at 38:3-13).
Sometime between 8:30 and 10:00 a.m., Dr. Haynes checked back on T. to ask how he was doing and to make sure he was getting fluids and everything he needed. (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 79:4-18). Shortly before 10:00 a.m., Nurse Blain told Dr. Haynes that the Guzmans wanted to know their son’s lab values. Blain said that the family was interested in going home and wanted to know what the doctor planned. When Dr. Haynes had this con
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versation with Nurse Blain, he knew that he had the CBC results except for the white blood cell differential test results.
(Id.,
at 23:8-11). Dr. Haynes testified that when he looked at the lab values on the computer around 10:00 a.m. the differential count was not on the screen.
(Id.,
at 20:13-19).
At 10:13 a.m., Dr. Haynes diagnosed viral syndrome. Nurse Blain had recorded that at 9:58 a.m., T’s heart rate had decreased to 105-110. Dr. Haynes believed that the earlier elevated heart rate had been caused by an albuterol inhaler treatment or slight dehydration from vomiting.
(Id.,
at 93:20-94:22). The emergency room staff had given T. a “fluid challenge by mouth to make sure that he was no longer vomiting.”
(Id.,
at 23:21-24:9). Dr. Haynes believed that the improved heart rate was due to the IV fluids T. received in the emergency room. Dr. Haynes and the emergency room nurses believed that the child was stable during the entire time he was in the emergency room on February 12, 2006. Dr. Haynes testified that he made the decision to discharge, knowing that he had not seen the results of the white blood cell differential test, because he had examined T. and interviewed the family, found the child “clinically stable,” with an improved heart rate, no respiratory distress, “no longer hurting anywhere other than the place where his IV was,” and “the family wanted to go home.”
(Id.,
at 23:17-24:14). Based on all that information “and on the lab information [he] had available to [him] at that time, [Dr. Haynes] felt [T.] was stable for discharge.”
(Id.,
at 24:17-19). Because Dr. Haynes believed the child to be “stable for discharge,”
(id.
at 20:3-10), he was released from the hospital at approximately 10:15 a.m. The form Dr. Haynes completed to show the differential diagnosis
1
based on the child’s symptoms indicated diabetes, diabetic ketoacidosis, gastroenteritis, and “UTI,” or urinary tract infection. (Docket Entry No. 95, Ex. A, at MHSE-0010). Dr. Haynes testified in his deposition that the circle on the form around “UTI” was a mistake; he had meant to circle “URI,” or upper respiratory infection. (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 111:3-12). According to Dr. Haynes, the child’s symptoms were not consistent with a urinary tract infection.
(Id.,
at 111:8-9). Dr. Haynes believed that T. had a virus that was mostly affecting the upper respiratory system but could have also been affecting the gastrointestinal system.
(Id.,
at 111:16-24). Dr. Haynes told the Guzmans that their son’s condition should begin to improve within 24 hours but to return to the emergency room if he was not better.
Dr. Haynes did not see the white blood cell differential test results before discharging “T.” As a result, Dr. Haynes did not know that the band count was extremely high, indicating a bacterial infection. Dr. Haynes testified in his deposition that if he had seen the band count, he would have reevaluated the child, told the family members about the abnormal lab values, admitted the child to the hospital, ordered a blood culture, and spoken with his primary care physician about possibly giving the child antibiotics.
(Id.,
at 24:20-25:23).
The Guzmans brought their son back to the Memorial Hermann emergency room
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the following morning, February 13, 2006. They arrived around 7:00 a.m. The child was complaining of fever, vomiting, diarrhea, and abdominal and chest pain. A nurse recorded the following vital signs: blood pressure 110/30; pulse 74; respiratory rate 24, temperature 97.6 degrees. T. was classified Emergent Level 2 and placed in an exam room. At 7:59 a.m., Dr. Mohammed Siddiqi performed a physical examination and ordered laboratory tests and a chest x-ray. Based on the results of these tests, Dr. Siddiqi diagnosed the child with pneumonia between 9:30 and 9:45 a.m. At that time, T. had a 99.5 degree temperature.
The child’s condition worsened while he was in the emergency room. At 11:15 a.m., he had a pulse of 148, a respiratory rate of 40, and a temperature of 101.2 degrees. At 11:23 a.m., Dr. Siddiqi ordered T. transferred to the pediatric intensive care unit at Memorial Hermann Children’s Hospital, where he could receive a higher level of care. Dr. Siddiqi also ordered antibiotics and fluids, which were administered to the child at 11:35 a.m. At 12:03 p.m., Dr. Siddiqi first suspected that the child might have sepsis, an inflammatory process that develops in response to infection but extends beyond the infection site to affect the whole body. Sepsis is characterized by an elevated heart rate, rapid breathing, abnormal body temperature, and decreased blood pressure. At 12:03 p.m., the child’s pulse was 148, blood pressure was 85/62, and respiratory rate was 48. Dr. Siddiqi testified in his deposition that the child’s drop in blood pressure and increase in respiratory rate from the previous readings caused him to suspect sepsis.
At 12:30 p.m., Memorial Hermann Children’s accepted the transfer request but indicated that a “Response in 30 min.” would not occur due to the “Extenuating Circumstance[ ]” of “Bed Control.” (Docket Entry No. 100, Ex. L). Dr. Siddiqi arranged for American Medical Response (“AMR”), an ambulance company, to transport T. to Memorial Hermann Children’s. At 1:00 p.m., the child’s pulse was 162, his respiratory rate was 62, and his temperature was 99.1 degrees. (Docket Entry No. 95, Ex. A, at MHSE-0043).
At 1:20 p.m., Dr. Siddiqi came to reevaluate the child and discuss the transfer process with the Guzmans. He also talked to them about the possible need for intubation. At 1:35 p.m., Dr. Siddiqi decided that T. needed to be intubated to protect his airway and respiratory system. Dr. Siddiqi “thoroughly explained [the] need for intubation to [the] patient’s parents [,] who verbalize[d] understanding.” (Docket Entry No. 95, Ex. A, at MHSE-0045). At 1:37 p.m., Dr. Siddiqi spoke with Dr. Erickson at Memorial Hermann Children’s Hospital. Dr. Erickson accepted the transfer request but told Dr. Siddiqi that he would first have to prepare a bed in the pediatric ICU.
{Id.,
at MHLF-006). Tammy McCrumb, R.N., the nurse attending “T,” testified in her deposition that this “usually means it will happen pretty quickly, within an hour.” (Docket Entry No. 95, Ex. O, Deposition of Tammy McCrumb, at 92:21-24). Dr. Erickson also told Dr. Siddiqi that he wanted the child to be transported by the Memorial Hermann Children’s pediatric transport team instead of by AMR. (Docket Entry No. 95, Ex. A, at MHLF-006). The pediatric transport team could provide a higher level of care during transport than a standard ambulance because the team included a pediatric critical care nurse, a respiratory therapist, a paramedic, and could include a physician. (Docket Entry No. 95, Ex. O, Deposition of Tammy McCrumb, at 93:13-18). Dr. Erickson explained that the pediatric team was currently en route to Beaumont, Texas to pick up another patient. (Docket Entry No. 95, Ex. A, at MHLF-006). Dr. Siddiqi was aware of
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the time it would take to transfer T. but agreed with Dr. Erickson that the pediatric transport team would be better than a standard ambulance and decided to wait.
(Id.).
Dr. Siddiqi intubated the child at 1:50 p.m.
(Id.,
at MHSE-0047).
At 2:25 p.m., the transport team from AMR arrived. Nurse McCrumb testified in her deposition that no one had called AMR to cancel. Dr. Siddiqi called Dr. Erickson at Memorial Hermann Children’s.
(Id.,
at MHSE-0040). Dr. Erickson reiterated that he wanted T. transported by the pediatric transport team, not AMR, and that there was still no available pediatric ICU bed.
(Id.).
At 3:15 p.m., Dr. Siddiqi went to the child’s bed to “discuss plan of care with patient’s parents and [the] delay of transfer due to Transport team picking up another patient in Beaumont before being able to pick patient up.”
(Id.,
at MHSE-0046).
T. had a severe allergic reaction, called “malignant hypothermia,” to one of the medications used for the intubation. This allergic reaction caused his body temperature to increase significantly in a short period. At 3:32 p.m., Tammy McCrumb, R.N., recorded that T. had a temperature of 107.9 degrees. Nurse McCrumb tried to locate Dr. Siddiqi but learned that he had left the hospital around 3:30 p.m. because his shift had ended at 3:00 p.m. At 3:52 p.m., Nurse McCrumb notified Dr. David Nguyen, another emergency room physician, of the child’s elevated temperature. Dr. Nguyen examined T. and ordered cooling blankets and ice packs applied. This occurred at 4:00 p.m. By 4:05 p.m., the child’s temperature had reached 111.2 degrees. At 4:13 p.m., Dr. Nguyen and Dr. Erickson spoke by phone and both agreed that the child needed to be transported to Memorial Hermann Children’s via Life Flight helicopter. At 4:20 p.m., Dr. Nguyen finalized the arrangements for Life Flight to transport “T.” The Life Flight helicopter arrived at 4:45 p.m. T. was transported to Memorial Hermann Children’s Hospital, where he received immediate care and was hospitalized in the intensive care unit.
T. remained at Memorial Hermann Children’s Hospital for several weeks. He was diagnosed with septic shock, which caused organ injury. Although his condition improved, he still requires follow-up medical care and therapy.
Guzman’s EMTALA claims against Memorial Hermann include failing to provide T. an appropriate medical screening examination on February 12, 2006, failing to stabilize his condition before discharging him that day, and failing to provide an appropriate transfer on February 13, 2006. Guzman also asserts a state-law negligence claim against Memorial Hermann for failing to provide adequate procedures for reporting lab results and for recalling patients to the hospital when abnormal lab results are reported.
2
Guzman sought discovery of the medical records for all pediatric patients who came to Memorial Hermann’s emergency room with similar complaints and who were seen by Dr. Haynes between February 2005 and February 2006. Guzman asserted that these records were necessary to show disparate treatment to prove her EMTA
*475
LA claim for failure to conduct an appropriate medical screening examination. Memorial Hermann argued that as a matter of law, Guzman was not alleging an EMTALA, as opposed to a negligence, claim. Guzman did not allege a failure or refusal on the part of the hospital staff to give T. the type of tests given to other patients with similar symptoms. Instead, Guzman alleged that T. received the usual battery of tests, but the doctor failed to read all the test results. Memorial Hospital argued that not only did this allegation fail to state a claim under EMTALA, but also that no records would show whether a doctor had failed to read results for tests that had been ordered. Memorial Hermann also argued that it would be highly burdensome to review the records sought and to redact information required to be kept confidential. After argument, this court ordered certain documents produced but declined to order Memorial Hermann to produce all the documents Guzman sought before resolving whether the EMTALA claims were viable. Memorial Hermann’s motion for summary judgment, and Guzman’s motion under Rule 56(f), followed.
B. The Motion to Strike Portions of Dr. Hayden’s Affidavit
Memorial Hermann moved to strike portions of the affidavit of Dr. Stephen Hayden, Guzman’s expert witness. Memorial Hermann argues that many of Dr. Hayden’s opinions and conclusions are incompetent summary judgment evidence because they are not based on personal knowledge, in violation of Rule 56(e) of the Federal Rules of Civil Procedure. Memorial Hermann also argues that Dr. Hayden’s attempt to interpret the hospital’s written policies violates Federal Rule of Evidence 1002 because the best evidence of the content and meaning of a policy is the policy itself. And Memorial Hermann argues that Dr. Hayden’s opinion that certain hospital actions violated EMTALA are legal conclusions, outside the province of an expert witness.
3
Guzman responds that Dr. Hayden is an expert witness and his opinions need not be based on personal knowledge, but can be based on his review of the medical records, documents, and depositions in this case. Guzman argues that the affidavit does not violate the best evidence rule because Dr. Hayden is not testifying about the content of Memorial Hermann’s policies but instead about what they mean and how they apply to this case. Guzman argues that Dr. Hayden’s opinion that Memorial Hermann violated EMTALA is permitted under the Federal Rules of Evidence.
Memorial Hermann’s objection that Dr. Hayden lacks personal knowledge of the hospital’s policies is unpersuasive. “Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”
Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 591 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993);
see also
Fed.R.Evid. 701, 702; Charles A. Wright
&
Victor James Gold, 27
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Federal Practice & Procedure: Evidence 2d § 6025 (“By allowing experts to base opinions on facts or data that need not be admissible, Rule 703 permits opinions that are not based on personal knowledge.”). Such a “witness need not have observed or participated in the gathering of the data underlying his opinion. Rather, the personal knowledge requirement hinges on whether the expert personally analyzed the data that was ‘made known’ to him and formed an expert opinion based on his own assessment of the data within his area of expertise.”
Huber v. Howard County, Md.,
56 F.3d 61 , No. 94-1651, 1995 WL 325644, at *5 (4th Cir. May 24, 1995) (citing
Doe v. Cutter Biological, Inc.,
971 F.2d 375 , 385-86 & n. 10 (9th Cir.1992);
Colgan v. Fisher Scientific Co.,
935 F.2d 1407 , 1423 & n. 15 (3d Cir.1991));
see also Carter v. Massey-Ferguson, Inc.,
716 F.2d 344, 349-50 (5th Cir.1983) (rejecting argument that expert’s opinion on causation was incompetent for lack of personal knowledge because, under Rule 703, an expert may base opinion testimony on facts or data presented at trial and the plaintiffs expert based his opinion testimony on the plaintiffs account of the incident and disclosed the underlying basis of his testimony);
Marine Polymer Technologies, Inc. v. HemCon, Inc.,
2009 WL 801826 (D.N.H. Mar.24, 2009) (“An expert who provides an affidavit with an opinion formed within his area of expertise and based on his own assessment or analysis of the underlying facts or data satisfies the personal knowledge requirement of Rule 56(e).”). Memorial Hermann does not contend that Dr. Hayden, who is board-certified in emergency medicine and has been actively attending to patients and practicing emergency medicine since 1993, lacks the education, credentials, or experience to testify as an expert witness under Rule 702 of the Federal Rules of Evidence, in the areas covered by his designation under Rule 26(b)(2) of the Federal Rules of Civil Procedure. Dr. Hayden’s affidavit states that he personally reviewed the following: the medical and laboratory records for T.; the depositions of Dr. Haynes, Nurse McCrumb, Dr. Siddiqi, Doug Mitchell, and Tom Flanagan; Memorial Hermann’s policies and procedures; and a printout of data relating to 92 pediatric patients seen by Dr. Haynes between February 2005 and February 2006. The affidavit sets out the factual basis for Dr. Hayden’s opinions, his interpretation of Memorial Hermann’s policies and procedures, and how the facts garnered from the records and documents led him to conclude that the medical screening, stabilizing care, and transfer in this case violated EMTALA. Dr. Hayden’s affidavit meets the Rule 56(e) personal knowledge requirement for an expert witness.
Nor does Dr. Hayden’s affidavit violate Federal Rule of Evidence 1002. Under that rule, “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” Fed.R.Evid. 1002. The best evidence rule does not apply to evidence not offered to prove the contents of a writing.
See, e.g., Harris Corp. v. Ericsson, Inc.,
194 F.Supp.2d 533, 540 (N.D.Tex.2002) (overruling objection to documents based on best evidence rule where documents were offered to demonstrate the parties’ intent and not to prove any specific term or content of a writing); 2 Saltzburg, Martin & Capra, Federal Rules of Evidence Manual, § 1002.02 (8th ed. 2002) (“If the contents are not sought to be proved, the Best Evidence Rule is inapplicable ....”). Nor does the rule apply “when an expert testifies based in part on having reviewed writings ... because Rule 703 allows an expert to express opinions based on matters not put into evidence.”
Lorraine v. Markel
*477
American Ins. Co.,
241 F.R.D. 534, 579 (D.Md.2007) (citations omitted);
see also
Fed.R.Evid. 1002, Committee Note (“It should be noted, however, that Rule 703, supra, allows an expert to give an opinion based on matters not in evidence, and the present rule must be read as being limited accordingly in its application.”). The authenticity of the Memorial Hermann policies is undisputed.
(See
Docket Entry No. 103, at 6 (“MHSE admits the authenticity of all the policies produced in the litigation.”)). Dr. Hayden’s affidavit is not offered to prove the “contents” of those policies. Dr. Hayden testified in his affidavit about his application of the Memorial Hermann policies to the facts of this case, based on his review of the policies and other documents, including medical records. Memorial Hermann’s objection based on the best evidence rule is overruled.
Finally, Memorial Hermann’s objection to Dr. Hayden’s opinions about whether T. had an emergency medical condition and whether he was stable in the emergency room on the basis that they go to “ultimate issues” is unpersuasive, but the objection to the opinion that EMTALA was violated is valid. “It is well established that Fed.R.Evid. 704 permits a witness to express an opinion as to an ultimate issue that must be decided by the trier of fact.”
See United States v. Gold,
743 F.2d 800, 817 (11th Cir.1984) (citing
United States v. Miller,
600 F.2d 498, 500 (5th Cir.),
cert. denied,
444 U.S. 955 , 100 S.Ct. 434 , 62 L.Ed.2d 327 (1979)). Rule 704 states that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a). Rule 704, however, does not permit expert witnesses to offer conclusions of law.
C.P. Interests, Inc. v. California Pools, Inc.,
238 F.3d 690, 697 (5th Cir.2001). To the extent Memorial Hermann challenges Dr. Hayden’s legal conclusions that EMTALA violations occurred, the objection is well-founded.
See Martinez v. Porta,
601 F.Supp.2d 865, 866-67 (N.D.Tex.2009) (holding that expert opinions as to whether hospital violated EMTALA were inadmissible legal conclusions). The motion to strike is granted as to these legal conclusions but denied as to the remainder of the affidavit.
II. The Applicable Legal Standards
A. Summary Judgment
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.”
Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (5th Cir. 2007) (citing
Celotex Corp. v. Catrett,
477 U.S. 317, 322-25 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986)).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”
See Celotex,
477 U.S. at 325 , 106 S.Ct. 2548 . While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case.
Boudreaux v. Swift Transp. Co.,
402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.”
Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied,
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regardless of the nonmovant’s response.”
United States v. $92,203.00 in U.S. Currency, 587
F.3d 504, 507 (5th Cir.2008) (quoting
Little v. Liquid Air Corp., 87
F.3d 1069, 1075 (5th Cir.1994) (en banc)).
When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim.
Baranowski v. Hart,
486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ”
Boudreaux,
402 F.3d at 540 (quoting
Little, 87
F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party.
Connors v. Graves,
538 F.3d 373, 376 (5th Cir.2008).
Rule 56(f) authorizes a district court to order a continuance to permit additional discovery if the nonmovant shows that she “cannot for reasons stated present by affidavit facts necessary to justify the party’s opposition.”
Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156, 162 (5th Cir.2006) (citing
Wichita Falls Office Assoc. v. Banc One Corp., 978
F.2d 915, 919 (5th Cir.1992)). In requesting additional time for discovery under Rule 56(f), the nonmoving party must show why additional discovery is necessary and how that additional discovery will defeat the summary judgment motion by creating a genuine dispute as to a material fact.
Id.
(citing
Beattie v. Madison County School Dist.,
254 F.3d 595, 605 (5th Cir.2001)). The nonmoving party may not “simply rely on vague assertions that additional discovery will produce needed, but unspecified facts.”
Id.
(citing
Brown v. Miss. Valley State Univ.,
311 F.3d 328 , 333 n. 5 (5th Cir.2002)).
B. EMTALA
Congress enacted EMTALA “to prevent ‘patient dumping,’ which is the practice of refusing to treat patients who are unable to pay.”
Marshall v. East Carroll Parish Hosp.,
134 F.3d 319, 322 (5th Cir.1998). “A patient is ‘dumped’ when he or she is shunted off by one hospital to another, the second being, for example, a so-called ‘charity institution.’ ”
Summers v. Baptist Medical Center Arkadelphia,
91 F.3d 1132, 1136 (8th Cir.1996). The Act requires hospitals to provide an “appropriate medical screening examination” to any person who enters the emergency room. 42 U.S.C. § 1395dd(a). This examination must determine “whether or not an emergency medical condition ... exists.”
Id.
An “emergency medical condition” is one “manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-(i) the placing of the health of the individual ... in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part....” 42 U.S.C. § 1395dd(b)(l)(A). If the hospital detects an emergency medical condition, the hospital must provide either “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 for transfer of the individual to another medical facility ....” 42 U.S.C. §§ 1395dd(b)(l)(A) & (B). “If an individual at a hospital has an emergency medical condition which has not been stabilized ... the hospital may not transfer the individual unless” the individual makes a written request for transfer to another hospital or “a physician has signed a certification that based upon the information available at
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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 ... the transfer is an appropriate transfer ____“42 U.S.C. § 1395dd(c)(l).
EMTALA establishes neither a federal medical malpractice cause of action nor a nationalized standard of medical care.
Marshall,
134 F.3d at 322 . A hospital does not violate EMTALA if the medical staff treating the patient fails to detect or misdiagnoses an emergency condition.
See id.
at 332-323 (“a treating physician’s failure to appreciate the extent of the patient’s injury or illness, as well as a subsequent failure to order an additional diagnostic procedure, may constitute negligence or malpractice, but cannot support an EMTALA claim”);
Harry v. Marchant,
291 F.3d 767, 773 (11th Cir.2002) (recognizing that EMTALA is not intended to be a federal malpractice action). Congress enacted EMTALA “to prevent ‘patient dumping,’ ” not to guarantee proper emergency medical care.
Marshall,
134 F.3d at 322 . EMTALA “create[d] a new cause of action, generally unavailable under state tort law, for what amounts to failure to treat,” but does not “duplicate preexisting legal protections.”
Gatewood v. Washington Healthcare Corp.,
933 F.2d 1037, 1041 (D.C.Cir.1991);
see also Hardy v. New York City Health & Hosp. Corp.,
164 F.3d 789, 795 (2d Cir.1999) (“The core purpose of EMTALA ... is to prevent hospitals from failing to examine and stabilize uninsured patients who seek emergency treatment.”);
Bryan v. Rectors & Visitors of Univ. of Va.,
95 F.3d 349 , 351 (4th Cir. 1996) (“[EMTALA’s] core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy” because “traditional medical malpractice law affords no claim for failure to treat.”);
Brooks v. Maryland General Hospital, Inc.,
996 F.2d 708, 710 (4th Cir. 1993) (“Under traditional state tort law, hospitals are under no legal duty to provide [emergency] care. Accordingly, Congress enacted EMTALA to require hospitals to continue to provide it.”);
Malavé Sastre v. Hosp. Doctor’s Ctr., Inc.,
93 F.Supp.2d 105, 109 (D.P.R.2000) (stating that EMTALA “filled a void which state tort law did not address”);
Root v. Liberty Emergency Physicians, Inc.,
68 F.Supp.2d 1086, 1091 (W.D.Mo.1999),
aff'd,
209 F.3d 1068 (8th Cir.2000) (“EMTALA has been described as a ‘gap-filler’ for state malpractice law, giving patients who would otherwise have no claim in state court a forum to redress their injuries.”);
Slabik v. Sorrentino,
891 F.Supp. 235, 237 (E.D.Pa.1995),
aff'd
82 F.3d 406 (3d Cir. 1996) (citations omitted) (EMTALA “was designed to create a new cause of action for failure to screen and stabilize patients, not to federalize traditional state-based claims of negligence or malpractice.”). “[Ijnserting into EMTALA an action for violation of standard medical procedures for patients admitted and treated for several hours would convert the statute ‘into a federal malpractice statute, something it was never intended to be.’ ”
Tank v. Chronister,
941 F.Supp. 969, 972 (D.Kan. 1996) (quoting
Hussain v. Kaiser Found’n Health Plan,
914 F.Supp. 1331, 1335 (E.D.Va.1996)).
The three potential EMTALA causes of action against Memorial Hermann in this case are for failing to perform an appropriate medical screening examination, failing to stabilize an emergency medical condition before transfer or discharge, and failing to conduct an appropriate transfer. An EMTALA plaintiff is not required to prove an improper or nonmedical motive for a hospital’s decisions or actions, such as the plaintiffs indigence, inability to pay, or lack of insurance. “The language of subsection 1395dd(a) simply refers to ‘any individual’ who presents to the emergency room.”
Power v. Arlington
*480
Hospital Association,
42 F.3d 851 , 857 (4th Cir.1994). The Supreme Court has held that proof of an improper motive is not required for a failure to stabilize claim.
Roberts v. Galen of Virginia,
525 U.S. 249, 253 , 119 S.Ct. 685 , 142 L.Ed.2d 648 (1999). The Supreme Court in
Roberts
expressly declined to address whether such proof is required for other claims under EMTALA, but the circuit courts have held that there is no improper-motive requirement for any EMTALA cause of action.
See Burditt v. U.S. Dept. of Health and Human Services,
934 F.2d 1362 (5th Cir.1991) (“As written, EMTALA prevents patient dumping without such a requirement.”);
Summers,
91 F.3d at 1137 (holding that an EMTALA plaintiff is not required to show that the hospital’s actions or decisions were based on improper, nonmedical considerations);
Correa v. Hospital San Francisco,
69 F.3d 1184 (1st Cir.1995) (“Every court of appeals that has considered this issue has concluded that a desire to shirk the burden of uncompensated care is not a necessary element of a cause of action under EMTALA.”);
Power,
42 F.3d at 857 (no proof of improper motive to “dump” is required to prevail on an EMTALA claim);
Collins v. DePaul Hospital,
963 F.2d 303, 308 (10th Cir.1992) (“[A] plaintiff need not show the hospital’s motive was to dump a patient in order to recover under EMTALA.”);
Gatewood,
933 F.2d at 1041 (“[A]ny departure from standard screening procedures constitutes inappropriate screening in violation of the Emergency Act. The motive for such departure is not important to this analysis, which applies whenever and for whatever reason a patient is denied the same level of care provided others .... ”);
but see Cleland v. Bronson Health Care Group, Inc.,
917 F.2d 266, 272 (6th Cir. 1990) (requiring proof of improper motive for an EMTALA screening claim; a hospital’s decisions must be based on the patient’s indigence, lack of insurance, race, sex, politics, education, occupation, AIDS, or inebriated state, or personal dislike or antagonism between the medical personnel and the patient, etc.). Proof that a hospital’s inappropriate screening examination, failure to stabilize, or inappropriate transfer was based on the patient’s indigence, lack of insurance, race, sex, or other improper considerations is sufficient, but not necessary to make out an EMTALA violation.
See Summers,
91 F.3d at 1137 (“We have no doubt that ‘dumping’ is covered by the statute, and that a refusal to screen a patient because he or she had no insurance would violate the statute, but other practices can violate it as well.”).
III. Analysis
In the second amended complaint, Guzman alleged that Memorial Hermann committed three EMTALA violations: failing to provide an “appropriate medical screening examination” on February 12, 2006 when her son was examined by Dr. Haynes; failing to stabilize the child’s emergency medical condition before discharging him that day; and failing to effect an appropriate transfer on February 13, 2006. Memorial Hermann has moved for summary judgment on all three EMTALA claims. Each is analyzed below.
A. The “Appropriate Medical Screening” Claim: The First Visit to the Emergency Room
EMTALA does not define “appropriate medical screening examination” other than to state that its purpose is to identify an emergency medical condition.
4
*481
Courts have uniformly held that whether a medical screening is appropriate is determined “by whether it was performed equitably in comparison to other patients with similar symptoms,” not “by its proficiency in accurately diagnosing the patient’s illness.”
See Marshall v. East Carroll Parish Hosp. Serv.,
134 F.3d 319, 322 (5th Cir.1998);
see also Reynolds v. MaineGeneral Health,
218 F.3d 78, 84 (1st Cir.2000) (the plaintiff must proffer evidence “sufficient to support a finding that she received materially different screening than that provided to others in her condition. It is not enough to proffer expert testimony as to what treatment should have been provided to a patient in the plaintiffs position”). The plaintiff must show that the hospital treated him differently from other patients with similar symptoms.
See Marshall,
134 F.3d at 324 ;
see also Correa v. Hospital San Francisco,
69 F.3d 1184, 1192 (1st Cir.1995) (a hospital must provide a screening exam that is “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and [must] provide[ ] that level of screening uniformly to all those who present substantially similar complaints.”). “It is the plaintiffs burden to show that the hospital treated her differently from other patients; a hospital is not required to show that it had a uniform screening procedure.”
Marshall,
134 F.3d at 323-24 . The plaintiff can meet this burden by pointing to differences in the screening examination she received as compared to the examinations of other patients at that hospital who presented with similar symptoms, or by providing evidence that the hospital did not follow its own standard screening procedures.
See Battle v. Memorial Hospital at Gulfport,
228 F.3d 544, 558 (5th Cir.2000). The plaintiff may also meet this burden by showing that the hospital failed to provide any screening or provided such a cursory screening that it amounted to no screening at all, in that it was not designed to detect acute, severe symptoms.
Correa,
69 F.3d at 1192-93 ;
see also Summers,
91 F.3d at 1139 (“[W]e hold that instances of ‘dumping’ or improper screening of patients for a discriminatory reason, or failure to screen at all, or screening a patient differently from other patients perceived to have the same condition, all are actionable under EMTALA.”). “The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.”
Correa,
69 F.3d at 1192 . A
de minimis
deviation from a hospital’s standard screening policy is insufficient to establish an EMTALA violation.
Repp v. Anadarko Municipal Hospital,
43 F.3d 519, 523 (10th Cir.1994).
EMTALA does not require hospitals to provide identical screening to patients presenting with different symptoms and does not require hospitals to provide screenings that are beyond their capabilities.
Baker v. Adventist Health, Inc.,
260 F.3d 987, 995 (9th Cir.2001). Because hospitals are generally in the best position to assess their own capabilities, “a standard screening policy for patients entering the emergency room generally defines which procedures are within a hospital’s capabilities.”
Id; see also Repp,
43 F.3d at 522 (finding that a hospital is in the best position to assess its capabilities and thus violates EMTALA when it does not follow its own standard procedures).
Courts have held that the test for satisfying the requirement of uniform treatment is whether the “challenged pro-
*482
cedure was identical to that provided [to] similarly situated patients as opposed to whether the procedure was adequate as judged by the medical profession.”
Eberhardt v. City of Los Angeles,
62 F.3d 1253, 1258 (9th Cir.1995) (citing cases from the D.C., Fourth, and Sixth Circuits). Negligence in the screening process or providing a faulty screening or making a misdiagnosis, as opposed to refusing to screen or providing disparate screening, does not violate EMTALA, although it may violate state malpractice law.
See Marshall,
134 F.3d at 322 (citing
Eberhardt,
62 F.3d at 1258 (holding that “[t]he hospital’s failure to detect the decedent’s alleged suicidal tendency may be actionable under state medical malpractice law, but not under the EMTALA”));
Baber v. Hosp. Corp. of Am.,
977 F.2d 872, 879-80 (4th Cir.1992) (“Questions regarding whether a physician or other hospital personnel failed properly to diagnose or treat a patient’s condition are best resolved under existing and developing state negligence and medical malpractice theories of recovery.”);
Summers,
91 F.3d at 1139 ;
Correa,
69 F.3d at 1192-93 ;
Collins v. DePaul Hosp.,
963 F.2d 303, 307 (10th Cir.1992) (holding that the purpose of the screening is “to determine whether an ‘emergency medical condition exists.’ Nothing more, nothing less.”). “[T]he Act is intended not to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances. Thus, what constitutes an ‘appropriate’ screening is properly determined not by reference to particular outcomes, but instead by reference to a hospital’s standard screening procedures.”
Gatewood,
933 F.2d at 1041 .
In the second amended complaint, Guzman alleged that Memorial Hermann failed to provide an appropriate medical screening because Dr. Haynes, the treating physician, failed to review all laboratory information and failed to rule out a bacterial infection or administer antibiotics before discharging “T.” (Docket Entry No. 90). Guzman alleged that the medical screening constituted disparate treatment because Dr. Haynes failed to follow the nauseá/vomiting protocol set out in Memorial Hermann’s Emergency Center Triage Guidelines, which required initiating a fever protocol and a saline lock, as well as performing a CBC,- BMP, and urinalysis.
(Id.).
Guzman also alleged that Memorial Hermann violated EMTALA’s screening requirement because Dr. Haynes failed to follow Memorial Hermann’s “monitoring, reassessment, and documentation” policies as well as its aftercare and follow-up policy.
(Id.).
1. A Screening Reasonably Calculated to Determine the Existence of an Emergency Medical Condition
Guzman argues that the summary judgment evidence shows that the medical screening examination Dr. Haynes ordered and that Memorial Hermann staff performed in this case was not completed and therefore not reasonably calculated to determine the existence of an emergency medical condition. According to Guzman, the examination was not completed because Dr. Haynes did not see the white blood cell differential test results before deciding to discharge T. and, as a result, could not and did not rule out a bacterial infection. Guzman cites
Battle v. Memorial Hospital at Gulfport,
228 F.3d 544, 558 (5th Cir.2000), and
Hoffman v. Tonnemacher,
425 F.Supp.2d 1120 (E.D.Cal. 2006), for the proposition that EMTALA required Dr. Haynes to rule out a bacterial infection in order to determine whether an emergency medical condition existed.
*483
Memorial Hermann argues that the allegations and summary judgment evidence that Dr. Haynes failed to read all the CBC test results, including the result that showed an elevated white blood count, taken as true, would support a claim for negligent care, but not a violation of EMTALA’s requirement to provide an appropriate medical screening. Citing
Vickers v. Nash General Hosp., Inc.,
78 F.3d 139, 144 (4th Cir.1996), and
Summers,
91 F.3d at 1138 , Memorial Hermann argues that Guzman’s claim based on the failure to rule out a bacterial infection ignores the fact that under EMTALA, the actual diagnosis made by the treating physician is taken as a given. Dr. Haynes diagnosed T. with viral syndrome based on his medical history, the physical examination conducted, the vital signs, and the test results he did review. Memorial Hermann argues that because Dr. Haynes perceived the child to have viral syndrome, EMTALA did not require Dr. Haynes to obtain further test results or take other steps to rule out a bacterial infection. Guzman responds that the diagnosis cannot be taken as a “given” because it resulted from Dr. Haynes’s failure to complete the screening examination, not from a negligent misdiagnosis. Guzman cites
Battle ,
228. F.3d at 558, for the proposition that the Fifth Circuit has implicitly rejected the rule from
Vickers
and
Summers
that the doctor’s actual diagnosis is taken as a given in an EMTALA case. Guzman argues that there is a fact issue as to whether Dr. Haynes intentionally discharged her son “without seeing the results of the white cell manual differential,” which could violate EMTALA, or whether he “simply [forgot] to look,” which would be a negligent act that would not violate EMTALA. (Docket Entry No. 100, at 4).
In determining whether a screening examination is appropriate under EMTALA, the touchstone is “whether, as § 1395dd(a) dictates, the procedure is designed to identify an ‘emergency medical condition’ that is manifested by ‘acute’ and ‘severe’ symptoms.”
Jackson v. East Bay Hospital,
246 F.3d 1248, 1255 (9th Cir. 2001);
see also Correa,
69 F.3d at 1192 . A screening that is “so cursory” that it is “not designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury” violates EMTALA.
Bryant v. Adventist Health System/West,
289 F.3d 1162 , 1166 n. 3 (9th Cir.2002). But an emergency room physician is only “required by EMTALA to screen and treat the patient for those conditions the physician perceives the patient to have.”
Hunt v. Lincoln Cty. Memorial Hosp.,
317 F.3d 891 , 893 (8th Cir.2003).
It is undisputed that T. was taken to triage within a few minutes after he arrived at the Memorial Hermann emergency room hospital complaining chiefly of fever and vomiting. Nurse Ganz noted his complaints and the fact that his parents had given him Tylenol and Motrin. She took the child’s temperature and heart rate and determined that he was afebrile with a heart rate of 145. Nurse Ganz recorded that the child appeared distressed and uncomfortable, that his breath sounds were clear bilaterally and that his abdomen was soft and not tender. Based on his elevated heart rate, the child was categorized as Emergent Level 2 and taken to an examination room to be seen by a physician.
Nurse Blain further assessed the child’s condition in the examination room. He noted that Guzman’s son complained of generalized pain and cough. Nurse Blain’s evaluation notes continue:
Appears uncomfortable, well developed, well nourished, well groomed. Behavior is anxious, appropriate for age, cooperative, crying. Neuro: Level of consciousness is awake, alert, obeys commands.
*484
Oriented to person, place, time. EENT: Tympanic membrane clear on right ear and left ear. Ear canal clear on right ear and left ear. Oral mucosa is moist. Good dentition noted. Throat is clear. Cardiovascular: Capillary refill < 3 seconds. Hear tones SI S2. Edema is absent. Pulses are all present. Rhythm is regular sinus tachycardia Chest pain is denied. Respiratory: Respiratory effort is even, unlabored, relaxed. Respiratory pattern is regular symmetrical. Airway is patent. Sputum is non verbalized. Breath sounds are clear bilaterally. GI: Abdomen is flat, Non-distended. Bowel sounds present x 4 quads. GU: No deficits noted. Derm: No deficits noted. Musculoskeletal: No deficits noted. Injury description: atraumatic.
(Docket Entry No. 95, Ex. A, at MHSE0013-0014).
After Nurse Blain’s evaluation, Dr. Haynes arrived. He interviewed T. and his parents about the complaints and took a medical history. He conducted a thorough physical examination and concluded that the child was clinically stable and likely had some type of virus. Dr. Haynes ordered a CBC and a basic metabolic panel, which were done. He also ordered that the child be given fluids through an IV. At 9:58 a.m., the child’s heart rate had decreased to 105-110. Dr. Haynes looked at the CBC results, but at that time, according to Dr. Haynes, the white blood cell differential results were not posted on the computer system with the other results. Dr. Haynes then returned to reevaluate the child’s condition. He determined that the child was no longer in pain or dehydrated, his heart rate had gone down, he was not in respiratory distress, and he felt comfortable going home. Based on all this information collected at the hospital between 7:45 a.m. and 10:15 a.m., Dr. Haynes concluded that T. was stable for discharge.
The undisputed facts in the record show that two nurses and one doctor examined T. and assessed his physical condition. They inquired about his symptoms, took a medical history, physically examined him, ordered a CBC, reviewed all the results except the white blood manual differential, and provided treatment. The case law makes it clear that such a screening examination is reasonably calculated to identify the existence of an emergency medical condition, even if the examination does not accurately reveal the patient’s actual medical condition. In
Hoffman v. Tonnemacher,
425 F.Supp.2d 1120 (E.D.Cal. 2006), the plaintiff presented to the emergency room complaining of fever, chills with hyperventilation, nasal congestion, cough, chest pain, and numbness in her hands. The doctor took a medical history, performed a physical examination, and ordered x-rays and a urinalysis. No other tests were administered.
Id.
at 1123-24 . Based upon the medical history, examination, and test results, the doctor diagnosed fever and bronchitis with a differential diagnosis of possible pneumonia.
Id.
The doctor did not believe the patient was suffering from an emergency medical condition and decided that discharge with medication was appropriate. The patient, however, was actually suffering from a severe bacterial infection that ultimately led to sepsis and severe complications. She sued under EMTALA and her expert witnesses opined that the screening examination she received was not calculated to identify an emergency medical condition because “an acceptable and appropriate medical screening had to include, at a minimum, a CBC, blood differential, blood culture, and echocardiogram.”
Id.
at 1134 . The court rejected the plaintiffs argument, holding that the expert’s opinion was phrased in terms of medical
*485
negligence, not EMTALA liability.
Id.
at 1135 . “The criticisms of Dr. Tonnemacher for failure to order additional tests are simply criticisms of violating the applicable medical standard of care, they do not show a screening so cursory that it was not designed to detect emergency conditions that may have been afflicting Hoffman.”
Id.
The court held that the examination the plaintiff received was reasonably calculated to identify an emergency medical condition, even though the condition was not actually identified.
Id.
5
; see also del Carmen Guadalupe v. Negron Agosto,
299 F.3d 15, 20-21 (1st Cir.2002) (finding that the screening examination was sufficiently calculated to identify emergency condition when the patient “was triaged, [had] some vital signs done, had a physical exam by the doctor, and chest x-rays [and] laboratory tests were ordered,” medication was prescribed, and the patient was told to return in the morning for x-rays);
Feighery v. York Hospital,
59 F.Supp.2d 96, 108-09 (D.Me.1999) (finding that the screening examination was sufficiently calculated to identify emergency condition when the hospital interviewed the patient about his symptoms, inquired into whether he was experiencing chest pain, conducted an EKG and blood work, and placed him on a heart monitor).
The examination T. received was more thorough than the examination the patient received in
Hoffman ,
who, like T., was misdiagnosed with a viral infection when he was suffering with a bacterial infection that escaped detection. Unlike that patient, however, T. received a CBC. Despite the absence of the tests that T. received, which the plaintiffs expert in
Hoffman
argued were essential to an adequate screening examination, the court in
Hoffman
found no EMTALA violation, as a matter of law. The screening examination T. received was not so cursory that it constituted no screening whatsoever. The facts of this case do not show a screening procedure so woefully inadequate as to amount to a “failure to treat.”
See Gatewood,
933 F.2d at 1041 .
Guzman’s reliance on
Battle
and
Hoffman
is misplaced. In those cases, the hospital’s screening policies and procedures expressly required the medical staff to “rule out” a bacterial infection, and the staff failed to do so.
See Battle,
228 F.3d at 558 (hospital’s protocol provided that “[i]nfants and elderly are usually hospitalized if no definitive source for fever/infection is determined”);
Hoffman,
425 F.Supp.2d at 1139 (hospital policy required doctor to “confirm or rule out a bacterial process/infection”). There is no evidence in the record of a Memorial Hermann policy or procedure that required Dr. Haynes to rule out a bacterial infection before discharging a patient. As explained in more detail below, Memorial Hermann does not have a symptom-specific screening policy that required Dr. Haynes to completely review all parts of the CBC or other test results before concluding that no emergency medical condition was present.
Contrary to Guzman’s argument, the Fifth Circuit in
Battle
did not implicitly reject the rule from
Vickers
and
Summers
that the doctor’s actual diagnosis is taken as a given. The hospital policy at issue in
Battle
stated that infants were usually hospitalized if a definitive source of their fever or infection was not determined. 228 F.3d
*486
at 558. The hospital argued that the doctor’s diagnosis of pneumonia and ear infection meant that the source of the child’s fever and infection had been determined.
Id.
The court held that the evidence in the record was conflicting as to whether the doctor had followed the hospital policy.
Id.
The doctor’s diagnoses of pneumonia and an ear infection, as well as a seizure disorder, did not allow the court to conclude that, as a matter of law, the source of fever or infection had been determined. The Fifth Circuit did not reject the rule that the actual diagnosis is taken as a given under EMTALA, but instead held that the evidence in
Battle
was conflicting as to whether the actual diagnosis was reached through a failure to follow the hospital’s policy.
Moreover, the Fifth Circuit in
Battle
relied on its previous opinion in
Marshall v. East Carroll Parish Hosp. Serv. Dist.,
134 F.3d 319, 322 (5th Cir.1998), for the EMTALA legal standard. The
Marshall
court, in turn, had relied heavily on the decisions in
Vickers
and
Summers :
Therefore, a treating physician’s failure to appreciate the extent of the patient’s injury or illness, as well as a subsequent failure to order an additional diagnostic procedure, may constitute negligence or malpractice, but cannot support an EMTALA claim for inappropriate screening.
See Summers,
91 F.3d at 1138-39 (“ ‘faulty’ screening ... does not come within EMTALA”);
Vickers, 78
F.3d at 143-44 (citation omitted) (EMTALA “does not impose any duty on a hospital requiring that the screening result in a correct diagnosis”).
Most of the courts that have interpreted the phrase have defined it as a screening examination that the hospital would have offered to any other patient in a similar condition with similar symptoms.
See Summers,
91 F.3d at 1138 (“An inappropriate screening examination is one that has a disparate impact on the plaintiff’);
Vickers, 78
F.3d at 144 (emphasis in original) (“EMTALA is implicated only when individuals who are
perceived
to have the same medical condition receive disparate treatment”); ....
Marshall,
134 F.3d at 323 . These statements in
Marshall
were not overruled in
Battle
and remain good law in the Fifth Circuit.
In the present case, there is no conflicting evidence as to what the actual diagnosis of viral syndrome meant or as to whether the diagnosis resulted from a failure to follow any Memorial Hermann policy. There is no conflict between Dr. Haynes’s diagnosis of viral syndrome and the fact that he did not see the band count before discharging “T.”
Battle
provides no support for Guzman’s argument that there is a disputed fact issue material to determining the reason for Dr. Haynes’s diagnosis of viral syndrome before he saw the results of the white blood cell differential test.
The facts of this case are similar to those in
Summers,
91 F.3d at 1138 , which involved an alleged physician failure to obtain a certain test. In that case, like
Hoffman ,
the test was not even ordered, as opposed to being ordered and conducted but not fully read. The plaintiff in
Summers
came to the emergency room complaining of snapping and popping noises in his chest. The hospital acknowledged that a patient making this complaint typically would be given a chest x-ray, but the plaintiff was not. The plaintiffs medical condition of a broken vertebra, sternum, and rib was missed and he brought an EMTALA claim for failure to provide an appropriate medical screening. The court stated that the plaintiffs argument that the nonuniform screening amounted to an EMTALA violation had “a surface appeal”
*487
but concluded that the claim was “nothing more than an accusation of negligence.”
Id.
“It would almost always be possible to characterize negligence in the screening process as non-uniform treatment, because any hospital’s screening process will presumably include a non-negligent response to symptoms or complaints presented by a patient.”
Id.
at 1138-39 .
As in
Summers ,
the hospital physician’s failure to view the white blood cell differential test results that were part of the CBC before reaching a diagnosis of viral syndrome and deciding to discharge the patient is a negligence claim. Whether Dr. Haynes exercised his medical judgment and decided not to wait for the test results because he felt the child was stable for discharge or whether he simply forgot to look to see if the differential test results had been posted before discharging the child is irrelevant to whether the failure to read these results amounts to an EMTALA claim. The fact that Dr. Haynes did not see the results is important to the Guzman’s negligence claim and the reasons he gave for the failure are relevant to the medical malpractice claim, but do not allege or create a fact issue as to whether there was a failure to provide an “appropriate medical screening” under EMTALA.
Dr. Hayden’s opinion that T. did not receive an appropriate medical screening examination does not raise a fact issue precluding summary judgment dismissing this EMTALA claim. Dr. Hayden stated that, in his opinion, “the hospital cannot provide such an examination if the appropriate test, although ordered, is not seen and reviewed by the emergency physician.” (Docket Entry No. 100, Ex.
J).
According to Dr. Hayden, if Dr. Haynes had seen the results of the white blood cell differential test, he would have ordered “further workup,” which “would have, in all reasonable probability, resulted in a diagnosis of pneumonia, prompt treatment with antibiotics, and avoided the sepsis completely.”
(Id).
Dr. Hayden also opined that “the minimum ‘appropriate’ medical screening examination should have included a chest x-ray and a urinalysis, and therefore the exam given by Memorial Hermann Southeast was not an appropriate medical screening examination.”
(Id).
Additionally, in Dr. Hayden’s opinion “a urinalysis is an essential component of medical screening in a patient like TG, and the failure to perform the urinalysis is not a minor omission.”
(Id).
Dr. Hayden opines as to what Dr. Haynes and Memorial Hermann should have done to provide treatment that met the reasonable standard of medical care. Dr. Hayden equates the applicable standard of care with an appropriate medical screening examination. Evidence of what a hospital’s screening procedure should be, while relevant to a malpractice claim, is not relevant to Guzman’s claim under EMTALA. “It is not enough to proffer expert testimony as to what treatment should have been provided to a patient in the plaintiffs position.”
Reynolds v. Maine-General Health,
218 F.3d 78, 83 (1st Cir. 2000). EMTALA does not create a national standard of care and is not a medical malpractice statute.
Marshall,
134 F.3d at 322 . A “treating physician’s failure to appreciate the extent of the patient’s injury or illness ... may constitute negligence or malpractice, but cannot support an EMTALA claim for inappropriate screening.”
Id
at 323;
see also Hoffman v. Tonnemacher,
425 F.Supp.2d 1120, 1135 (E.D.Cal.2006) (“The criticisms of Dr. Tonnemacher for failure to order additional tests are simply criticisms of violating the applicable, medical standard of care, they do not show a screening so cursory that it was not designed to detect emergency conditions that may have been afflicting Hoffman.”).
*488
Guzman’s allegations and the summary judgment evidence, taken in the light favorable to her, do not as a matter of law support a claim under EMTALA that the screening examination was not appropriate because it was not calculated to identify an emergency medical condition. Summary judgment on this theory is appropriate.
2. Memorial Hermann’s Screening Policy
a. The “Triage Guidelines”
The summary judgment evidence includes a document titled “Memorial Hermann Hospital System: Emergency Center Triage Guidelines.” (Docket Entry No. 95, Ex. G)' (“Triage Guidelines”). These guidelines were “developed to expedite patient flow.”
(Id.).
They “assist the staff in ordering appropriate studies which expedites evaluation by the physician or physician extender.”
(Id.).
The Triage Guidelines specify certain tests or measures for the staff to take before the patient is seen by a physician. The Guidelines only apply to what hospital staff should do before a physician sees a patient. Under the- category “Vomiting/Diarrhea: Pediatric (2 Months to 18 yr),” the Guidelines call for, among other things, “a saline lock, a CBC, and a urinalysis if there have been 3 or more episodes of vomiting or if urinary tract infection symptoms are present.”
(Id.).
The pediatric fever protocol calls for administration of Tylenol and Motrin.
(Id.).
In the second amended complaint, Guzman alleged that Memorial Hermann failed to provide T. an appropriate screening examination under EMTALA because “not having the results of the CBC reviewed by a physician, ... not instituting the fever protocol, and ... not performing a voided urinalysis,” violated the Triage Guidelines. (Docket Entry No. 90, at 7). Memorial Hermann argues that Guzman cannot rely on any deviation from the Triage Guidelines because they do not apply in this case. Memorial Hermann admits that the Guidelines were in effect and stored at the triage nurse’s desk in February 2006, but denies that they constitute a medical screening policy. Memorial Hermann asserts that the Triage Guidelines cannot be a “screening policy” under EMTALA because they only apply to what staff does when there is a delay before the patient sees a physician. According to Memorial Hermann, T. saw Dr. Haynes promptly on February 12, 2006. Staff did not need to rely on the Triage Guidelines because there was no delay, and the Guidelines did not apply to a physician such as Dr’ Haynes. Memorial Herman argues that because the Triage Guidelines did not apply to this case, any deviation from them is not a failure to provide an appropriate medical screening under EMTALA.
Guzman argues that the record raises a fact issue as to whether the Triage Guidelines are in fact Memorial Hermann’s medical screening policy. Guzman cites
Battle,
228 F.3d at 558 , for the proposition that Memorial Hermann’s explanation for why the Triage Guidelines do not apply requires a credibility determination by the factfinder that precludes summary judgment.
In
Battle ,
the plaintiffs claimed that the hospital violated EMTALA by breaching a “Nursing Care Standard” that was the hospital’s medical screening policy. The Standard stated: “ ‘[i]nfants and elderly are usually hospitalized if no definitive source for fever/infection’ is determined.” 228 F.3d at 558 . On arriving at the emergency room, the patient, the plaintiffs’ infant son, was diagnosed with febrile seizures, pneumonia, and an ear infection. He was prescribed antibiotics and discharged. After he continued to have seizures, the plaintiffs returned to the emergency room the next day. The child’s
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mother wrote “self-pay” on the emergency room paper work. The doctor prescribed additional seizure medication and instructed the mother “not to bring that child right back here because [the medication] takes time to work.”
Id.
at 548 . The child’s condition worsened. The next he was admitted to the hospital and diagnosed with herpes simplex encephalitis, a rare and serious disease. Despite extensive treatment, when he left the hospital one month later, he was “in a near vegetative state” and required “24-hour-a-day care for the rest of his life.”
Id.
at 549 . The EMTALA and negligence claims were tried to a jury. At the close of the plaintiffs case, the court entered a directed verdict on the EMTALA claim, finding judgment as a matter of law appropriate. The jury returned a verdict in favor of the plaintiffs on the negligence claim. On- appeal, the hospital argued that the district court correctly entered a directed verdict on the EMTALA claim because the evidence showed that the doctors had determined a definitive source for the fever and infection by diagnosing the patient with pneumonia and an ear infection.
Id.
at 558 . The hospital also argued that the “Nursing Care Standards” did not embody the hospital’s screening procedures because the Standards were written for nurses, who lack authority to decide whether to hospitalize a patient. The plaintiffs argued that there was evidence showing that the hospital medical staff had discharged the baby without determining a definitive source for his fever and infection. The court found that the hospital’s explanations for why it failed to “follow its own published standards, while perhaps persuasive to a jury, require[d] credibility determinations that preclude[d] judgment as a matter of law.”
Id.
The court held that a rational jury could have concluded that the source of the patient’s fever and infection had not been definitively determined when he was discharged from the emergency room. The court noted that the jury also heard evidence of the reason for the allegedly disparate and inadequate treatment; the child was “[b]lack, poor, uninsured, and presented at the emergency room during the Christmas holidays.”
Id.
Because the record evidence was conflicting as to whether the hospital had followed or deviated from its medical screening procedure, the court reversed the grant of summary judgment in favor of the defendants and remanded the case to the district court.
Id.
In the present case, unlike
Battle ,
Memorial Hermann’s explanation for why the Triage Guidelines were not followed in this case does not create a fact issue precluding summary judgment. Nothing in the nursing protocol in
Battle
indicated that it did not apply to the screening of the plaintiffs’ infant. By contrast, the Triage Guidelines in this case clearly do not apply to the screening examination Dr. Haynes performed on T. The Guidelines state as follows:
These guidelines have been developed to assist in patient flow. These orders are substantiated based on the patient’s chief complaint and the documented nursing assessment. They are meant to assist the staff in ordering appropriate studies which expedites evaluation by the physician or physician extender. The patient is to be brought directly to a room if one is available. They are not intended to delay physician evaluation. Triage guidelines may be initiated by the appropriate provider in the triage area or by the nurse assigned to the patient room if the patient is brought directly back. These protocols should not in any way delay the physician or physician extender evaluation, not to be interpreted as a standard of care.
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In the event that a patient leaves pri- or to evaluation by the practitioner, the nursing staff must present all triaged labs, EKGs, and/or X-rays to the attending ED physician.
(Docket Entry No. 95, Ex. G, at MHSETG-0287).
On their face, these Triage Guidelines only apply before a physician’s examination is conducted. They allow a nurse to initiate medication and testing, including laboratory testing, appropriate for the patient’s symptoms and chief complaints, before a physician examines the patient. Nurse McCrumb testified in her deposition that a triage nurse can decide to initiate these protocols “based on that nurse’s clinical judgment.” (Docket Entry No. 95, Ex. 0, Deposition of Tammy McCrumb, R.N., at 45:1-11). She testified that the protocols were initiated at Memorial Hermann primarily for patients complaining of abdominal pain or shortness of breath, stroke patients, and pregnant patients with vaginal bleeding, for whom any delay at all may be critical.
(Id.,
at 45:20-24). The steps under the Triage Guidelines are to be taken
before
a patient is evaluated by a physician or physician extender, to assist in “patient flow,” and to expedite the physician’s evaluation when it occurs. The Guidelines on their face do not apply when the patient sees a doctor promptly on arrival at the emergency room or after the patient is examined by a physician.
See Fraticelli-Torres v. Hospital Hermanos,
300 Fed.Appx. 1, 3 (1st Cir.2008) (finding no violation of screening requirement for failure to follow a requirement of the hospital’s ICU protocol because that protocol was “by its very terms, not expressly applicable to patients in its ER”).
It is undisputed that Guzman’s son arrived in triage at 7:42 a.m. and that the triage assessment was completed at 7:47 a.m. At that point, the child was taken to an examination room and examined by Nurse Blain at 7:55 a.m. Dr. Haynes began his examination of Guzman’s son at 8:00 a.m. There was no delay before T. saw the doctor. Neither the triage nurse, April Ganz, R.N., nor Nurse Blain initiated any tests or protocols under the Triage Guidelines. Based on the undisputed evidence in the record, the Triage Guidelines did not apply to the screening examination of T. There is no disputed fact issue material to determining why the Guidelines were not followed or whether the failure to do so made the medical screening T. received inappropriate under EMTALA.
Not only is there a difference between the protocol at issue in
Battle
and the Triage Guidelines present in this case, there are also important differences between the evidence in
Battle
and in the present case. The court in
Battle
cited conflicting evidence about the hospital’s explanation for its failure to follow the nursing protocol as a basis for reversing the directed verdict. The hospital asserted that a definitive source of the child’s fever and infection had been determined, but the court found that the evidence as to the diagnoses — pneumonia, an ear infection, and febrile seizures — did not as a matter of law establish a source for the fever and infection. In addition, the court noted the evidence that the patient was “[bjlack, poor, uninsured, and presented at the emergency room during the Christmas holidays.” Summary judgment was not appropriate based on all of this evidence. There is no comparable evidence in the present case. Memorial Hermann’s explanation for why the Triage Guidelines do not apply does not conflict with other evidence in the record and does not require a credibility determination. There is no evidence suggesting an improper motive for the medical screening T. received.
Summary judgment is granted on Guzman’s EMTALA screening claim based on
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the alleged failures to follow the protocols in the Triage Guidelines, including the CBC and urinalysis.
b. The “Medical Screening Criteria”
EMTALA requires that a hospital develop a policy that is “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints.”
Correa,
69 F.3d at 1192 . Memorial Hermann asserts that its policy for the medical screening examination under EMTALA is a document titled “Medical Screening Criteria To Timely Identify Patients Not Presenting With An Emergency Medical Condition.” (Docket Entry No. 95, Ex. C) (“Medical Screening Criteria”). This document does not present different protocols or procedures based on symptoms. Instead, it identifies what “criteria are to be used as a guideline for screening purposes for non-physician medical personnel authorized to perform a Medical Screening Exam.”
(Id.).
Memorial Hermann asserts that this is a general policy designed to “screen out” patients who do not have an emergency medical condition. Tom Flanagan, Director of Emergency Services for Memorial Hermann in 2006, testified in his deposition that the policy was developed for the purpose of “sorting] through the masses of people presenting to the emergency department, those that did not potentially have an emergency medical condition that could be screened and be referred to an alternative setting for their healthcare needs.” (Docket Entry No. 95, Ex. K, Deposition of Tom Flanagan, at 15:16-21). The policy sets out vital-sign categories to distinguish between patients who do not have an emergency medical condition and patients who might have an emergency medical condition and require physician attention. (Docket Entry No. 95, Ex. C). The policy includes a screening examination to be performed by a physician assistant or nurse practitioner.
(Id.).
Memorial Hermann asserts that the content of the screening exam is not binding on its staff doctors, like Dr. Haynes, in part because Texas law prohibits the corporate practice of medicine.
(Id.).
Nevertheless, according to Memorial Hermann, the content of the policy “evidences a routine medical screening exam at Memorial Hermann emergency rooms.” (Docket Entry No. 95, at 19).
The screening examination described in the document consists of an assessment of the patient’s chief complaint, medical history, vital signs, mental status, skin, and ability to walk, and a physical exam of the appropriate organ system and the patient’s general appearance. (Docket Entry No. 95, Ex. C). For example, patients who complain of an earache will have their ears examined; patients who complain of a sore throat will have their throat examined.
(Id.).
This document does not include a symptom-specific set of directions that requires specific laboratory or other tests or specific medical procedures to be performed for all patients presenting with certain symptoms. Memorial Hermann denies that it has a symptom-specific medical screening examination policy. (Docket Entry No. 95, Ex. K, Deposition of Tom Flanagan, at 95:2-9). Memorial Hermann argues that EMTALA does not require such a symptom-specific policy; Guzman argues that EMTALA does impose such a requirement and that this requirement preempts any state-law restrictions on corporate practice of medicine.
Guzman cites
Matter of Baby K,
16 F.3d 590, 597 (4th Cir.1994), for the proposition that EMTALA preempts state-law restrictions on the corporate practice of medicine. Guzman’s preemption argument is unpersuasive. In
Matter of Baby K ,
the plaintiff argued that the hospital failed to provide
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stabilizing treatment as required by EMTALA. The hospital argued that the doctors were not required to provide the stabilizing treatment the plaintiffs alleged EMTALA required because the doctors had medical objections to providing such treatment. The hospital cited an applicable state law that allowed doctors to refrain from providing care they determined to be medically or ethically inappropriate. The court held that EMTALA preempted the state law because it “directly conflicts with the provisions of EMTALA that require stabilizing treatment to be provided.”
Id.
In the present case, the state-law restriction on the corporate practice of medicine does not conflict with EMTALA.
Contrary to Guzman’s argument, EMTALA does not require hospitals to impose detailed or symptom-specific screening-exam protocols or procedures on its physicians. A hospital may choose to tailor its medical screening examination policy to specific types of symptoms or patients, but a hospital is not required to do so. Instead, the cases make clear that a general screening policy is sufficient under EMTALA.
See, e.g., Baber v. Hospital Corp. of America,
977 F.2d 872 , 879 n. 6 (4th Cir.1992) (holding that it is sufficient if a hospital develops a general screening policy designed to detect the existence of an emergency medical condition and uniformly applies that policy, whatever its contents, to all patients);
Correa,
69 F.3d at 1192 (there must be “some screening procedure” and it must “be administered even-handedly”).
Guzman cites
Power v. Arlington Hospital Association,
42 F.3d 851, 857 (4th Cir. 1994), for the proposition that EMTALA requires a hospital to have substantive, symptom-specific protocols to detect emergency medical conditions. Guzman argues that because the Medical Screening Criteria do not apply and if, as Memorial Hermann argues, the Triage Guidelines do not apply, Memorial Hermann lacks any protocol for detecting emergency medical conditions and therefore violates EMTALA. Contrary to Guzman’s argument, the court in
Power
did not deviate from this approach. In
Power,
the court recognized that a “hospital may have one general procedure
or
tailored screening procedures, depending on the exhibited symptoms.” 42 F.3d at 858 n. 4 (emphasis added). The court rejected the argument that the mere availability of doctors and services was sufficient to comply with EMTALA, but did not hold that detailed or symptom-specific procedures were required.
Id.
at 859 . “Rather, compliance with EMTALA requires that hospitals ensure that screening procedures are uniformly applied.”
Id.
The cases show that EMTALA requires a hospital to develop a policy or procedures for medical screening examinations, but leaves it to the hospital to decide whether to adopt a detailed or broad approach, a symptom-specific or general approach. EMTALA does require that whether the hospital adopts a general or a symptom-specific approach, it must be consistently applied. If a hospital chooses to have substantive, detailed protocols, it must administer the content of those protocols uniformly. If a hospital chooses not to have substantive protocols but rather a general screening policy that leaves the detailed content of an examination to the medical judgment of a physician, the hospital must follow that general policy for all patients.
Memorial Hermann’s Medical Screening Criteria do not contain specific protocols applicable to physicians on the hospital staff. This does not, however, mean that the Criteria are inapplicable to this case, as Guzman argues. Guzman argues that T. was not examined by a physician assistant or nurse practitioner and that the
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Medical Screening Criteria are “for non-physician personnel to use to determine that low-priority patients do not have an emergency medical condition.” (Docket Entry No. 100, at 40). Guzman also argues that the Medical Screening Criteria do not apply because that document “does not set forth criteria for a medical screening exam for a patient like” her son, “does not even mention any laboratory tests, and therefore does not even contemplate the use of ‘ancillary facilities’ available to the emergency department,” and does not “describe the content of the medical screening exam performed by a physician.”
(Id.).
The summary judgment evidence shows that Memorial Hermann’s screening policy and procedure applies to all patients who present to the emergency room. Although T. was promptly seen by Dr. Haynes, he was also seen by the triage nurse and by other medical staff, before and after the physician examination. The Medical Screening Criteria applied to “T.” The summary judgment evidence also shows that T. received the type of examination called for under the Medical Screening Criteria: an initial assessment by the triage and other staff of the patient’s chief complaint, medical history, vital signs, mental status, skin, and ability to walk, and a physical exam of the appropriate organ system and the patient’s general appearance. Consistent with the Criteria, Dr. Haynes ordered the tests that were administered as well as the IV fluids.
Guzman argues that Flanagan testified in his deposition that the Medical Screening Criteria document is not Memorial Hermann’s “medical screen.” Guzman argues that because the Medical Screening Criteria are not Memorial Hermann’s policy for medical screening examinations conducted by physicians, Memorial Hermann does not have a screening policy and is therefore in violation of EMTALA. Guzman has taken Flanagan’s deposition testimony out of context. Flanagan testified that he did not want someone to get the impression that the Medical Screening Criteria was the “end all and be all in itself.” (Docket Entry No. 100, Ex. I, Deposition of Tom Flanagan, at 84:8-9). Flanagan did not testify that the Medical Screening Criteria document is not Memorial Hermann’s policy for how to screen patients to determine the existence of an emergency medical condition. He testified that these are criteria Memorial Hermann developed to help medical providers “get to the point of making decisions” about the existence of an emergency medical condition. (Id., at 84:10-13). Flanagan explained:
Medical screening is not a — a recipe cookbook in the emergency department at all. Medical screen is based upon multiple, multiple factors, all related to the patient in front of you. And based upon your education, your experience, your expertise, there is many more — that’s how these decisions are made. It’s not just every patient that comes in with a cough we will do this, this, this and this and this, and if that’s all negative, then they can go home. No. It’s all — it’s based upon experience, education, training, age, maturity.
(Id., at 86:24-87:10). In Flanagan’s testimony, he made a distinction between the content of the Medical Screening Criteria and the actual screening examination performed by a physician. The Criteria contain detailed requirements for staff to perform “screening in and out” and describe an appropriate medical screening examination in general terms, while allowing physicians to exercise their independent medical judgment in deciding what tests or procedures should be used to determine whether a patient has an emergency condition and what it is. As the court in
Baber
recognized, any EMTALA screening procedure “necessarily requires the exercise
*494
of medical training and judgment. Hospital personnel must assess a patient’s signs and symptoms and use their informed judgment to determine whether a critical condition exists.” 977 F.2d at 879 . The record shows that Memorial Hermann’s policy is to screen patients in or out based on vital signs and other indicators. If that initial screen shows that a patient may have an emergency medical condition, the policy calls for a doctor, physician assistant, or nurse practitioner to perform a more thorough screening examination to determine the existence of an emergency medical condition. The Medical Screening Criteria provide guidance to assist these medical care providers in determining whether a patient has an emergency medical condition. This policy satisfies EMTALA’s requirement that a hospital have
some
screening procedure designed to identify those patients with emergency medical conditions.
See Correa,
69 F.3d at 1192 . The Medical Screening Criteria satisfy EMTALA’s requirement that a hospital develop a policy that is “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients.”
See id.
c. A General Screening Policy
Even assuming that the written “Medical Screening Criteria” document is not Memorial Hermann’s screening policy or procedure, that does not provide evidence of, or create a fact issue as to, an EMTALA violation. The record contains undisputed evidence as to the general policy Memorial Hermann required its staff to follow in screening emergency room patients. The case law shows that EMTALA permits a hospital to have a general, as opposed to a symptom-specific, screening policy or procedure. The case law also permits a hospital to have a policy or procedure that is not written.
See, e.g., Nolen v. Boca Raton Community Hospital, Inc.,
373 F.3d 1151, 1154 (11th Cir. 2004) (holding that EMTALA does not require hospitals to have a written screening procedure);
Summers v. Baptist Med. Ctr. Arkadelphia,
91 F.3d 1132, 1140 (8th Cir. 1996) (en banc) (finding no EMTALA violation because “the hospital did have a screening procedure, even if unwritten in part, and the statute makes no additional requirement”).
A hospital is not required to have a policy or procedure that directs doctors on the content of the screening examinations they perform. A general screening policy or procedure is sufficient if it is reasonably calculated to determine the existence of an emergency condition. Courts have recognized that such general screening policies and procedures are valid under EMTALA. In
Richmond v. Community Hosp. of Roanoke Valley,
885 F.Supp. 875 (W.D.Va. 1995), the plaintiff came to the emergency room complaining of left rib pain. The triage nurse checked his vital signs, took a verbal medical history, and made a nursing assessment, which she documented. A physician examined the plaintiff and ordered chest x-rays. Based on his examination and the x-ray results, the physician diagnosed the plaintiff with intercostal neuralgia, prescribed medication for inflammation, and told him to return if his symptoms worsened. The plaintiff returned to the hospital two days later. The same procedure was followed, but a different doctor diagnosed the plaintiff with left lower lobe pneumonia, prescribed an antibiotic, and told him to return in four days for follow-up. The plaintiff subsequently went to a different hospital, where he underwent additional testing, had lung surgery, and remained in the hospital for twenty-one days. He sued the first hospital under EMTALA, alleging that it failed to provide him an appropriate medical screening on both of his emergency room visits. The hospital’s general screening procedure was “1. triage-to quickly ascer
*495
tain the immediacy of the patient’s need for treatment. 2. history and physical-to obtain information concerning the nature of the patient’s problem. 3. physician examination- to explore the precise nature of the patient’s problems, in order to lead to an appropriate course of treatment.” The court held that as a matter of law, the procedure satisfied EMTALA.
Id.
at 879 . The court also held that the undisputed evidence that the hospital staff had followed this same general screening requirement on both of the plaintiffs visits to the emergency room precluded finding an EMTALA violation.
Id.
Similarly, in
Hutchinson v. Greater Southeast Community Hospital,
793 F.Supp. 6 (D.D.C.1992), the hospital did not have “policies, protocols, or procedures specifying any required content of an emergency screening exam, or describing what comprises an adequate screening exam.”
Id.
at 8 . The hospital did have a general screening policy that triage personnel were to make the initial patient evaluation. If that evaluation showed that the patient was “routine,” uninsured, and had made no cash deposit, the policy provided that the patient would be “seen by an emergency physician for a screening exam to determine if a medical emergency exists. Those patients whom the physician determines may have a medical emergency will be treated. Those patients whom the physician determines do not have a medical emergency will be denied care but will be offered transportation to other treatment sites.”
Id.
The court held that the hospital’s general screening policy did not violate EMTALA.
Id.
at 10 . And the court found no EMTALA violation in the actual screening. The patient, who lacked insurance, had presented to the emergency room complaining of pains to the back of his head, foam in his mouth, weakness, and headaches.
Id.
at 7 . The emergency room doctor performed a physical examination and assessed the patient’s condition as “non-emergent.” He was placed in a taxicab and transferred to another hospital. A CT scan at that hospital revealed a subarachnoidal hemorrhage, which caused the patient’s death four days later.
Id.
The court held that the first hospital met EMTALA’s requirement to provide an appropriate medical screening because the hospital followed its standard screening procedure when it performed the plaintiffs screening examination.
Id.
at 10 .
In the present case, Flanagan testified in his deposition about Memorial Hermann’s general screening policy:
[T]he patient comes into the ER and presents. And the first place they go to is what we call triage. Triage is to sort patients based upon — to sort for acuity based upon their chief complaint. The ... nurse at triage gets vital signs ... [and the patient receives] clinical assessment by a nurse. Based upon that information, then the patient is then categorized into one of three categories.... No emergent ... condition exists, okay? And so they go to the [qualified medical provider] for medical screen evaluation and referral. Two, yes, or possible may have an EMC, emergency medical condition.... So they go to a bed. In the E.D. for M.D. screening, just like here, and evaluation and treatment. Or the triage nurse can determine absolutely without a doubt there is an EMC, so they also will go to a bed for the M.D. to continue to screen. And the exam, the medical screening exam, and treatment.
(Docket Entry No. 95, Ex. K, Deposition of Tom Flanagan, at 19:19-20:13). Flanagan testified that this general screening policy applied to Memorial Hermann’s emergency room patients.
{Id.,
at 93-94). He testified that all patients are “screened in or ... screened out based on the triage
*496
assessment.”
(Id.).
If a patient is “screened in,” “the nurse comes in the room and does an assessment, the doctor is called comes in and does an exam. Based upon the results of those orders, the decision is made whether to admit or discharge.”
(Id.).
It is undisputed that this procedure was followed on February 12, 2006 when the Guzmans brought T. to the emergency room. This procedure was also followed on February 13, 2006 when T. returned. As in
Richmond
and
Hutchinson ,
this general screening policy, which applies to all patients and was followed on both occasions when T. came to the emergency room, satisfies EMTALA’s screening-policy requirement.
3. Disparate or Consistent Treatment
a. Dr. Haynes’s failure to review all the lab test results and either rule out a bacterial infection or prescribe antibiotics
Guzman alleges that Memorial Hermann failed to provide an appropriate medical screening because before the treating physician decided on discharge, he failed to review all the laboratory test results and failed to rule out a bacterial infection or administer antibiotics. These allegations, and the summary judgment evidence as to the tests ordered, the results reviewed, and the discharge decision, do not give rise to a fact issue as to whether T. received disparate treatment that violated EMTALA. There is no evidence in the summary judgment record that Memorial Hermann’s screening policy required that before one of its emergency room physicians discharges a patient who presented with a fever and other symptoms similar to T.’s, the physician must order certain lab tests, review all the results, and rule out a bacterial infection or administer antibiotics, either under the Medical Screening Criteria or the general policy. Nor is there summary judgment evidence that the medical screening examination T. received differed from the type of screening examination generally provided.
An emergency room physician is only “required by EMTALA to screen and treat the patient for those conditions the physician perceives the patient to have.”
Hunt v. Lincoln Cty. Memorial Hasp.,
317 F.3d 891 , 893 (8th Cir.2003). Based on the medical history, examination, and symptoms, Dr. Haynes diagnosed T. with viral syndrome. Dr. Haynes testified that he considers the white blood cell differential count, when it is available, as part of evaluating a patient. (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 151:9-12). He testified that whether a doctor reviews all laboratory information before a patient’s discharge is a ease-by-case determination,
(Id.,
at 153:4-14). Specifically, Dr. Haynes testified that whether he waits for the white blood cell differential test results before discharging a patient “depends on the circumstances of that particular patient, [his] judgment, the patient’s clinical presentation and many other factors____”
(Id.,
at 159:11-17). Dr. Haynes testified that he did not treat T. differently than any other patient with similar symptoms.
(Id.,
at 146:5-7). Dr. Haynes’s failures to review the band count and either rule out a bacterial infection or prescribe antibiotics before discharging T. does not give rise to a fact issue as to disparate treatment under Memorial Hermann’s screening policies.
The allegations and evidence may give rise to liability for negligence for Dr. Haynes’s failure to follow up on the white blood cell differential test result. But there is, as a matter of law, no reasonable basis for a factfinder to impose liability under EMTALA on Memorial Hermann for Dr. Haynes’s failures to review that test result and either rule out a bacterial infection, or prescribe antibiotics to “T.”
*497
b. Deviation from the screening policy
It is undisputed that T. received an assessment of his chief complaints, medical history, vital signs, mental status, and skin, as well as an examination of his gastrointestinal system and his general appearance. It is also undisputed that after triage, T. saw a physician, who did a more thorough examination, ordered IV fluids, and ordered lab tests. The undisputed evidence shows that T. received the type of screening examination required by the Memorial Hermann Medical Screening Criteria and the policy Flanagan described.
The evidence in the record showed that as soon as T. came to the emergency room, he was seen by the triage personnel. T. was initially assessed by Nurse Ganz as Emergent Level 2 based on the elevated heart rate. T. was “screened in” as potentially having an emergency medical condition. Nurse Ganz took T. to an examination room, where Nurse Blain further assessed the child’s condition and determined that he was clinically stable and had no respiratory issues. Dr. Haynes then interviewed T. and his parents about his chief complaints and took a medical history. Dr. Haynes conducted a physical examination and ordered IV fluids and lab tests. Dr. Haynes concluded that the child likely suffered from viral syndrome. After reevaluating the child and determining that he was still clinically stable, Dr. Haynes determined that no emergency medical condition existed and decided to discharge him. There is no evidence that T. received a screening examination that was different from what was required under the Medical Screening Criteria or the general screening policy.
c. The aftercare and follow-up policy
Memorial Hermann argues that aftercare and follow-up are different from screening and that its aftercare and followup policy is not part of its screening examination policy. On its face, the aftercare and follow-up policy applies when “the physician determines a need for change in follow up care and treatment in regards to final diagnostic results (to include culture and x-ray reports) after the patient has been discharged.” (Docket Entry No. 95, Ex H, at MHSE-TG-0303). According to Memorial Hermann and the deposition testimony of Nurses Ganz and McCrumb, this policy only applies to lab results that the hospital knows will not be ready before the patient is discharged, such as blood or urine cultures. (Docket Entry No. 95, at 21-22). Memorial Hermann asserts that its aftercare and follow-up policy is not part of the policy for screening examinations that are required to identify an emergency medical condition so that the patient can be treated or stabilized before discharge or transfer to another hospital.
Guzman responds that Dr. Hayden’s opinions preclude summary judgment on the allegation that Dr. Haynes’s failure to follow-up on the white blood cell differential count violated EMTALA. Dr. Hayden stated in his affidavit that Dr. Haynes “should have initiated” a follow-up form and his failure to do so was a “deviation from Memorial Hermann policies and procedures.” (Docket Entry No. 100, Ex. J).
The summary judgment evidence and the case law show that, as a matter of law, Dr. Haynes’s failure to follow-up on the white blood cell differential lab result after T. was discharged did not violate the hospital’s screening examination policy and therefore violated EMTALA. The aftercare and follow-up policy is not an EMTALA screening policy. The evidence shows that the aftercare and follow-up policy applies when a physician knows that she needs to review test results that are not going to be available until some time after the patient’s discharge and determines to
*498
change the patient’s follow-up care or treatment based on those results. The aftercare and follow-up policy is not used to determine the existence of an emergency medical condition as part of an emergency room medical screen. Rather, this policy is intended to help physicians meet the standard of care and make changes to treatment based on lab results that the physician knows will not be available for some time. This policy is not relevant to an EMTALA medical screening examination. Evidence of a violation of the aftercare and follow-up care policy does not raise a fact issue as to an EMTALA violation.
See Fraticelli-Torres v. Hospital Hermanos,
300 Fed.Appx. 1, 3 (1st Cir. 2008) (“[T]hrombolysis is not a diagnostic tool which would implicate EMTALA’s ‘screening’ criterion, but a treatment option for incipient myocardial infarction, and therefore, defendants’ threshold decision in the ER not to order thrombolysis for Bonilla would implicate only the ‘stabilization’ criterion.”);
Feighery v. York Hospital,
59 F.Supp.2d 96 , 106 n. 10 (D.Me.1999) (holding that because the administration of oxygen was not used to determine the existence of an emergency medical condition, hospital’s failure to administer oxygen was not material to and would not support EMTALA claim).
The evidence in this case is that Dr. Haynes did not review the white blood cell differential test result, even though it was available before T. was discharged, and did not make any change in the follow-up care. The evidence does not give rise to a fact issue as to a violation of an EMTALA screening examination policy. Dr. Hayden’s opinion that Dr. Haynes “should have initiated” follow-up care faults Dr. Haynes for failing to initiate aftercare and follow-up procedures, failing to review the last part of the CBC test results to be analyzed and posted on the hospital computer system, and for failing to make the determination that T. required additional treatment. These opinions criticize Dr. Haynes for breaching the applicable standard of care. Although Dr. Hayden testified that in his opinion, Dr. Haynes’s failure violated Memorial Hermann’s aftercare and follow-up policy, nothing in that policy requires a physician to make a follow-up determination based on additional lab results that the doctor knows will not be available for some time after the discharge decision is made. To the contrary, the policy states “when” a physician makes this determination, the physician must initiate the form. The policy does not cover a medical screening examination under EMTALA.
Summary judgment is granted on this asserted basis for an EMTALA violation.
d. Documentation and vital signs
Guzman argues that the screening her son received was not appropriate under EMTALA because Memorial Hermann’s emergency room staff failed to take and document T.’s vital signs every two hours. The summary judgment evidence shows that Memorial Hermann’s policy required that a patient’s vital signs be taken every two hours. Guzman cites
Romo v. Union Memorial Hosp., Inc.,
878 F.Supp. 837, 842 (W.D.N.C.1995), for the proposition that when a hospital’s medical staff fails to take vital signs as policy requires, and those vital signs are arguably necessary for the doctor to determine whether an emergency medical condition exists, the hospital fails to provide an appropriate medical screening under EMTALA. Guzman contends that because one of T.’s chief complaints was fever, “which had been suppressed by Motrin Tylenol,” it was important to recheck his temperature after he had spent time in the emergency room and those drugs had worn off. Dr. Hayden opined in his affidavit that rechecking the child’s temperature was “an
*499
essential component of his medical screening” and that it was “not a minor deviation from the required screening to fail to obtain a follow up assessment of his tempera-toe.” (Docket Entry No. 100, Ex. J, Affidavit of Dr. Stephen Hayden). Guzman also argues that because T. “possibly had a bacterial infection,” it was very important to monitor his blood pressure. (Docket Entry No. 100, at 30). Dr. Hayden opined in his affidavit that “given the severity of the vomiting and the possibility of his having a severe infection, it would have been very important to monitor his blood pressure.” (Docket Entry No. 100, Ex. J, Affidavit of Dr. Stephen Hayden). Dr. Hayden stated that a change in blood pressure is often the first sign of a bacterial infection.
(Id.).
Dr. Hayden also stated that the screening examination was not appropriate because Memorial Hermann emergency room staff failed to document reassessments of the child’s vital signs.
(Id.).
Memorial Hermann responds that the alleged failures to follow its “monitoring, reassessment, and documentation” policies were all
de minimis
violations of the screening policy that were not material to determining the existence of an emergency medical condition. Memorial Hermann contends that EMTALA requires such a substantial deviation from a hospital’s policies as to make the screening examination provided so cursory that it amounts to no screening at all. Memorial Hermann asserts that the only written guideline it has on taking patients’ vital signs is a general policy, not specific to the emergency room, that requires reassessment of vital signs every four hours.
Nurse McCrumb testified that, in practice, the emergency room “guidelines are roughly every two hours for vital signs to be taken.” (Docket Entry No. 95, Ex. O, Deposition of Tammy McCrumb, at 32:19-22). Nurse McCrumb testified that although the written guidelines call for rechecking and documenting vital signs within one hour before discharge, this does not always happen because some nurses only document certain vital signs, depending on the patient’s chief complaint.
(Id.,
at 35:4-25). Memorial Hermann argues that there was no material deviation from the guidelines, emphasizing the undisputed evidence that when T. was triaged at 7:45, his vital signs were taken, and that he was discharged at 10:15 a.m., after two and one-half hours in the emergency room. During the time T. was in the emergency room, his heart rate — the only abnormal vital sign when he was initially seen — was reassessed at 9:58 a.m., within one hour before discharge. Temperature and blood pressure were not retaken within one hour before discharge. Memorial Hermann argues that the monitoring and documentation of T.’s vital signs met the EMTALA requirements for an appropriate screening examination.
The fact that T.’s vital sign reassessments were not documented is not, as a matter of law, an EMTALA violation. EMTALA does not require any particular documentation of the screening examination. Deviance from the documentation required in a hospital’s screening policy does not, by itself, give rise to a cause of action under the statute.
Hutchinson v. Greater S.E. Comm. Hosp.,
793 F.Supp. 6, 9-10 (D.D.C.1992).
With respect to the taking of vital signs, only a substantial deviation from a hospital’s medical screening policy can violate EMTALA. In
Kilroy v. Star Valley Medical Center,
237 F.Supp.2d 1298 (D.Wyo. 2002), the plaintiff argued that the hospital failed to provide an appropriate screening because his daughter’s vital signs were taken only when she arrived in the emergency room, despite the hospital’s policy requiring reassessment of vital signs periodically as well as before discharge.
Id.
at
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1304. The plaintiff also argued that the screening requirement was violated because the hospital staff took his daughter’s heart rate only before a nebulizer therapy treatment, although hospital policy required a heart rate reading before and after such treatment.
Id.
at 1305 . Notwithstanding these deviations, the court held that the hospital’s compliance with its screening procedures was adequate under EMTALA.
Id.
The court noted that EMTALA was enacted to prevent patient dumping and provide redress for what amounts to a failure to treat, not to provide a federal medical malpractice statute. The court held that the “variations from standard procedure were minor and did not rise to the level of being ‘so cursory’ as to fail to alert the physician of the need for medical attention.”
Id.
In light of EMTALA’s purpose, the court would “not view simply any oversight in procedure to be a violation of EMTALA. The deviation from procedure must be substantial enough to actually implicate EMTALA’s policy.”
Id.
The facts in
Correa v. Hospital San Francisco,
69 F.3d 1184 (1st Cir.1995), illustrate a substantial variation from hospital policy sufficient for an EMTALA violation. In that case, the hospital failed to provide an appropriate medical screening because there was no written record at all of the patient’s emergency room visit.
Id.
at 1193 . The hospital’s policy required emergency room staff promptly to take vital signs, make written records of all visits, and refer critical cases to a doctor.
Id.
The patient arrived at the emergency room complaining of chest pain. At trial, her son testified that he and his mother were in the waiting room for over two hours before she received any treatment. During that time, he pleaded with the receptionist to have someone “take care of my mother, because she feels sick and has chest pains.”
Id.
at 1188 . After the patient grew weary of waiting, she went to see a doctor at his office. While there, she died of hypovolemic shock.
Id.
at 1189 . The court held that based on this evidence, “and the Hospital’s utter inability to produce any records anent Ms. Gonzalez’s visit,” the jury could have reasonably concluded that the hospital failed to follow its own policies requiring a medical screening examination for an emergency room patient.
Id.
at 1193 . This substantial deviation from policy was sufficient to show an EMTALA violation.
Some courts have held that a hospital’s failure to follow its policy for checking and documenting vital signs is not a minor violation if the vital signs would be helpful to determining the existence of an emergency medical condition. In
Bode v. Parkview Health System, Inc.,
2009 WL 790199 (N.D.Ind. Mar.23, 2009), the hospital’s policy required nurses to take a patient’s blood pressure unless the patient was under six. The policy also required a nurse to take a patient’s vital signs every two hours and before discharge. The nurse did not take the patient’s blood pressure because she thought he was under six. He could not talk, was wearing a diaper, and weighed only 32 pounds. The birth date, however, was on each page of his medical records, and showed that he was six years old. The nurse did not reassess the child’s vital signs every two hours or before his discharge. The child died of dehydration the day after discharge due to vomiting and diarrhea. The parents sued under EMTALA, arguing that the hospital failed to provide an appropriate screening because the blood pressure could have shown dehydration and reassessing the vital signs could have helped the doctor detect the child’s emergency medical condition. The court held that the hospital’s failure to take the child’s blood pressure and reassess his vital signs before discharge were substantial deviations from hospital policy.
Id.
at *10. The court refused to grant the hospital’s motion for summary judgment
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because of evidence showing that “similar patients with similar symptoms would have had their blood pressure taken” and “[b]lood pressure is information that could help in forming a diagnosis.”
Id.; see also Romo,
878 F.Supp. at 842 (fact issue existed as to “whether the medical screening provided to Romo was ‘appropriate’ under EMTALA” because “the failure to record these vital signs is arguably necessary in order for the physician to make the determination of whether an emergency medical condition exists”).
Other courts have held that a emergency room staffs failure to follow the hospital’s policy for checking and documenting vital signs is a minor violation when the failure did not affect the treatment or diagnosis given or the hospital’s ability to detect an emergency medical condition.
See Sanchez Rivera v. Doctors Center Hosp., Inc.,
247 F.Supp.2d 90, 100 (D.P.R. 2003) (holding that the failure to take vital signs every fifteen minutes, as required by hospital’s procedure, was not an EMTALA violation; “the taking of the vital signs was not exactly complied with, but was sufficient to meet EMTALA requirements”);
Tank v. Chronister,
941 F.Supp, 969, 974 (D.Kan.1996) (the hospital’s failure to obtain vital signs before discharge was a minor violation because the “policy providing for follow-up readings [was] designed to exclude false first readings of a serious medical emergency” and it was undisputed that the patient’s vital signs upon intake were accurate). If reassessing vital signs would not be helpful in alerting the doctor of the need for immediate medical attention, the failure to do so is a minor deviation from hospital policy.
See Kilroy,
237 F.Supp.2d at 1305 .
The undisputed evidence in the summary judgment record shows that, as a matter of law, the failure to recheek T.’s temperature within an hour of discharge was not a substantial violation of Memorial Hermann’s vital-sign policy. The evidence shows that a temperature reassessment within one hour of discharge — which would have satisfied both the “every two hours” rule and the “one hour before discharge” rule due to the short period T. spent in the hospital — would not have alerted Dr. Haynes that T. had an emergency medical condition requiring immediate attention. T. did not have an elevated temperature when he presented to the emergency room. Guzman and Dr. Hayden assert that his temperature was being controlled by Tylenol and Motrin and that it was important to check the temperature after those medications wore off. But there is no evidence in the record that T. exhibited any signs of a fever during his time in the emergency room, including within one hour of discharge. Neither the child nor his parents complained that he felt feverish. Nurse Blain reassessed and reexamined the child at 9:58 a.m. Dr. Haynes visited the child and reevaluated his condition shortly thereafter. All these encounters showed that the child was clinically stable. If the' child’s temperature was significantly elevated, that would have been evident during one of these encounters without the need for a thermometer. Even assuming that T. had a fever at 10:15 a.m. that the staff failed to detect by not taking his temperature, that does not raise a fact issue precluding summary judgment. Dr. Haynes knew that T. had complained of fever when he arrived at the hospital a little over two hours earlier. The parents told Dr. Haynes that T. had run a fever before he came to the emergency room. Dr. Haynes knew that a fever could reoccur without taking T.’s temperature within an hour before discharge. The discharge notes state that Dr. Haynes instructed the Guzmans to administer ibuprofen as needed for fever and pain. (Docket Entry No. 95, Ex. A, at MHSE-0016). An elevated temperature is consistent with both viral
*502
and bacterial infection and Dr. Haynes had diagnosed viral syndrome. There is no basis to conclude that an elevated temperature within one hour of discharge would have been helpful to alert Dr. Haynes of an emergency medical condition or of the need for immediate medical attention.
The undisputed summary judgment evidence also shows that the failure to recheck blood pressure within one hour of discharge was not a substantial violation of Memorial Hermann’s vital-sign policy. The child’s blood pressure was normal when he was triaged. Guzman’s argument that it was important to recheck his blood pressure in the two and one-half hours he was in the emergency room because he
“possibly
had a bacterial infection” ignores Dr. Haynes’s evaluation and diagnosis. Similarly, Dr. Hayden’s opinion that rechecking the child’s blood pressure because of the
“possibility
of his having a severe infection” relies on the benefit of hindsight and ignores Dr. Haynes’s physical examination, diagnosis, and determination that the child was clinically stable. Dr. Haynes did not suspect a bacterial infection. Dr. Haynes reexamined T. between 10:00 and 10:15 a.m. T. reported that he was no longer hurting anywhere but the IV site. His heart rate was no longer elevated. Dr. Haynes attributed the initial elevated heart rate to dehydration or the child’s albuterol inhaler. Dr. Haynes determined that Guzman’s son was hydrated, not in respiratory distress, and no longer vomiting. The family felt that he was ready to go home. In the face of all this information, even if the blood pressure reading had been done within an hour of discharge and had shown some elevation, that would not have alerted Dr. Haynes of the need for immediate medical attention.
Unlike the facts
Bode
and
Romo ,
in which the vital signs arguably would have alerted the doctor of an emergency, the facts of the present case do not give rise to an inference that retaking T.’s vital signs would have been helpful to determining an emergency medical condition. The record does not support an inference that retaking T.’s temperature or blood pressure within one hour before discharge would have alerted Dr. Haynes of the need for immediate medical attention to stabilize an emergency medical condition. Like the patient in
Kilroy ,
T.’s vital signs were taken when he arrived in the emergency room and, with the exception of his heart rate, were not reassessed before discharge. The emergency room policy and practice at Memorial Hermann is to reassess vital signs roughly every two hours and to cheek vital signs that are related to the patient’s chief complaint within one hour before discharge. T. was discharged two and one-half hours after he arrived and his heart rate was reassessed 20 minutes before his discharge. As in
Kilroy ,
the evidence in the record does not show a substantial deviation from Memorial Hermann’s policy or practice. Nor does it show that other patients would have had their vital signs reassessed more often than T. There is no basis to conclude that the deviation from Memorial Hermann’s vital sign policy was a failure to provide an appropriate medical screening under EMTALA.
Summary judgment on this theory is appropriate.
B. The Failure to Stabilize Claim: The First Visit to the Emergency Room
Under EMTALA, if a hospital detects an emergency medical condition, it must take measures to stabilize that condition before transferring or discharging the patient. “Stabilize” means “to provide such medical treatment of the condition as may be necessary to assure, within reason
*503
able medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility----” 42 U.S.C. § 1395dd(e)(3)(A). The Fifth Circuit has defined “to stabilize” as “[t]reatment that medical experts agree would prevent the threatening and severe consequence of the patient’s emergency medical condition while in transit.”
Burditt v. United States Dep’t of Health & Human Servs.,
934 F.2d 1362, 1369 (5th Cir.1991). Stabilization is determined in reference to a patient’s diagnosis, not what in hindsight a patient “turns out to have,” and is evaluated at the time of discharge.
Vickers,
78 F.3d at 145 ;
Bergwall v. MGH Health Servs., 243
F.Supp.2d 364, 374-75 (D.Md. 2002).
“The duty to stabilize does not arise unless the hospital has actual knowledge that the patient has an unstabilized medical emergency.”
Battle,
228 F.3d at 558 ;
see also Roberts ex rel. Johnson v. Galen of Virginia, Inc.,
325 F.3d 776 (6th Cir.2003) (finding that every circuit to consider the question has required actual knowledge of the patient’s emergency condition as a precondition to an EMTALA duty to stabilize);
Baker,
260 F.3d at 992-93 (the duty to stabilize “arises only when [the hospital] actually detects an emergency medical condition”);
Jackson v. East Bay Hospital,
246 F.3d 1248, 1257 (9th Cir.2001) (adopting the “actual detection” rule, under which a condition precedent to the stabilization requirement is that the hospital staff had actual knowledge of an emergency medical condition);
Summers,
91 F.3d at 1140 (“A hospital must have had actual knowledge of the individual’s unstabilized emergency medical condition if a cl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2383338. Public record. Not legal advice.