Petition for Writ of Certiorari — Ricky Koel, Petitioner v. Citizens Medical Center, Inc., et al.

NO. ______

In the

Supreme Court of the United States

RICKY KOEL,

Petitioner,

v.

CITIZENS MEDICAL CENTER, INC., ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael W. Gross

Counsel of Record

LAW OFFICES OF MICHAEL W. GROSS, LLC

110 16th Street

Suite 1400, #46

Denver, CO 80202

(303) 726-5428

mwgrosslaw@comcast.net

June 20, 2025

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

A tightly stretched fence wire snapped into Ricky

Koel’s right eye, piercing the globe. He arrived at

Citizens Medical Center—vomiting from pain but still

able to perceive light—indicating vision could be saved

with timely intervention. Staff suspected a ruptured

globe, a known emergency. Yet instead of referring

him to an ophthalmologist or arranging transfer, the

hospital summoned an optometrist—unqualified under

EMTALA or hospital bylaws to screen. Mr. Koel was

misdiagnosed, not transferred, and left permanently

blind.

This case presents a clean vehicle to resolve a core

EMTALA issue left open by the Court’s dismissal of

Moyle v. United States, 603 U.S. 324 (2024): when

hospitals fail to treat or transfer patients with known

emergencies. Unlike Moyle, there is no state law barrier

here—only a failure to follow EMTALA’s mandate.

EMTALA forbids hospitals from treating emergency

patients differently based on diagnosis, staffing, cost,

or internal workarounds. The Questions are:

1. Whether the emergency imperative of EMTALA

displaces a State Law medical malpractice exception

just as the EMTALA emergency imperative displaced

a state law abortion ban for purposes of the District

Court’s injunction in Moyle v. United States?

2. Whether the Tenth Circuit’s zeal to adhere to the

EMTALA malpractice exception in Repp v. Anadarko

Mun. Hosp. exposes a Circuit Split with the Fourth

Circuit’s “standard to which the hospital adheres” rule

in Power v. Arlington Hosp. Ass’n?

ii

3. Whether Dan Kuhlman, M.D., the Citizens’

Medical Center’s emergency department medical

director, violated EMTALA by allowing an unqualified

Optometrist to examine and diagnose a serious eye

injury and discharge the patient for economic reasons?

iii

LIST OF PROCEEDINGS

United States Court of Appeals for the Tenth Circuit

No. 23-3232

Ricky Koel, Appellant v. Citizens’ Medical Center,

Daniel P. Kuhlman, M.D., Sam Roger Funk, O.D.

and Sam Roger Funk, O.D., P.A., Appellees

Opinion: February 24, 2025

Rehearing Denial: March 24, 2025

_________________

United States District Court for the District of Kansas

No. 2:21-cv-2166

Ricky Koel, Plaintiff v. Citizens’ Medical Center,

Daniel P. Kuhlman, M.D., Sam Roger Funk, O.D.

and Sam Roger Funk, O.D., P.A., Defendants

Date of Final Judgment: October 10, 2023

LIST OF PARTIES

Petitioner

Ricky Koel

Respondents

Citizens’ Medical Center

Daniel P. Kuhlman, M.D.

Sam Rodger Funk, O.D.

Sam R. Funk, O.D., P.A.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ....................................... x

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTES, REGULATIONS AND

INTERPRETIVE GUIDELINES ......................... 1

STATEMENT OF THE CASE .................................... 2

A. Statutory Background ................................ 2

B. Factual Background ................................... 2

C. Statement of Facts ...................................... 3

REASONS FOR GRANTING THE PETITION ....... 10

I.

The Emergency Imperative of EMTALA

Displaces a State Law Medical Malpractice

Exception Just as the EMTALA Emergency Imperative Displaced a State Law

Abortion Ban for Purposes of the District

Court’s Injunction in Moyle v. United States,

603 U.S. 324 (2024) ........................................ 10

II. The Tenth Circuit Misapprehended that Dr.

Funk Was in Reality an Optometrist and

not a Physician and Both the District Court

and the Tenth Circuit panel Ignored that

Dr. Kuhlman Violated 42 U.S.C. § 1395dd(a)

and 42 C.F.R. § 489.24(a)(1)(i) When He

Permitted Dr. Funk to examine and

Diagnose a Serious Open Globe Eye Injury,

Exposing a Circuit Split ................................. 12

v

TABLE OF CONTENTS – Continued

Page

III. The District and Circuit Courts Erred in

Failing to Apply Controlling EMTALA

Precedent in St. Anthony Hospital v. U.S.

Department of H.H.S., 309 F.3d 680 (10th

Cir. 2002) ........................................................ 17

IV. The District and Circuit Courts Erred in

Failing to Conclude That Dr. Funk’s Misdiagnosis of Closed Globe and the Resulting

Failure to Transfer Ricky Koel Immediately

to Denver Were Rooted in Dr. Kuhlman’s

Informal Ad Hoc Appointment of Dr. Funk .. 18

V. The District and Circuit Courts Erred in

Failing to Conclude That Ricky Koel’s Right

Eye Globe Was Misdiagnosed as Closed and

Non-Emergent and He Was Therefore Not

Immediately Sent by Air Ambulance to

Denver for Emergency Eye Surgery Because

He Had No Health Plan or Workers

Compensation Insurance ............................... 32

CONCLUSION.......................................................... 34

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Tenth Circuit (February 24, 2025)..................... 1a

Judgment, U.S. Court of Appeals for the

Tenth Circuit (February 24, 2025)................... 14a

Judgment in a Civil Case, U.S. District Court

for the District of Kansas (October 10, 2023) ..... 15a

Memorandum and Order, U.S. District Court

for the District of Kansas (October 10, 2023) ..... 17a

Memorandum and Order, U.S. District Court

for the District of Kansas (October 10, 2023) ..... 27a

Memorandum and Order, U.S. District Court

for the District of Kansas (October 10, 2023) ..... 55a

REHEARING ORDER

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Tenth Circuit

(March 24, 2025) ............................................... 59a

STATUTES AND REGULATIONS

Relevant Statutes and Regulations ....................... 61a

42 U.S.C. § 1395dd ........................................... 61a

42 C.F.R. § 482.55 ............................................ 68a

42 C.F.R. § 489.24 ............................................ 69a

Interpretive Guidelines .................................... 75a

K.S.A. § 65-1501 ............................................... 78a

K.S.A. § 65-1501a ............................................. 78a

K.S.A. § 60-258a ............................................... 79a

vii

TABLE OF CONTENTS – Continued

Page

OTHER DOCUMENTS

(in order as they appeared

in appellate court joint appendix)

Complaint

(April 8, 2021) ................................................... 81a

Pretrial Order, Excerpt

(May 31, 2023) .................................................. 85a

Plaintiff’s Motion for Partial Summary Judgment

Against Citizens Medical Center, Inc.

(June 1, 2023) ................................................... 95a

Plaintiff’s Memorandum in Support of Motion for

Partial Summary Judgment Against Citizens

Medical Center, Inc. (June 1, 2023) ................. 97a

Medical Report on Ricky Koel’s Eyes,

Citizens Medical Center Report ..................... 119a

COBRA, Relevant Sections................................... 127a

Kansas State Board of Optometry,

Data Report on Dr. Sam Funk ....................... 132a

Report of Expert J. Richard Ludgin, MD

(September 29, 2022)...................................... 135a

Report of Expert J. Richard Ludgin, MD, Cont.

(September 29, 2022)...................................... 154a

Deposition of Daniel P. Kuhlman, M.D.

(August 15, 2022) ........................................... 156a

Deposition of Dr. Funk

(March 21, 2022) ............................................. 165a

Deposition of Dr. Sam Funk, O.D., Cont.

(March 21, 2022) ............................................. 166a

viii

TABLE OF CONTENTS – Continued

Page

Deposition of Jenny Niblock

(July 11, 2022) ................................................ 170a

Citizens Medical Statement of Uncontroverted

Facts (June 1, 2023) ....................................... 172a

Defendant Citizens Medical Center, Inc.

Memorandum in Support of Motion for

Summary Judgment (June 1, 2023) .............. 173a

Deposition of Jacqueline Wong, M.D.

(November 30, 2022) ...................................... 175a

Medical Report on Ricky Koel, Citizens

Medical Center (February 23, 2021) .............. 177a

Patient Progress Report on Ricky Koel, Citizens

Medical Center (April 13, 2021) ..................... 186a

Deposition of Jenny Niblock

(June 9, 2022) ................................................. 197a

Deposition of Jenny Niblock

(July 11, 2022) ................................................ 219a

Deposition of Daniel P. Kuhlman, M.D., Cont.

(August 15, 2022) ........................................... 230a

Deposition of Daniel P. Kuhlman, M.D., Cont.

(August 15, 2022) ........................................... 249a

Plaintiff’s Response in Opposition to Motion of

Defendant Citizens Medical Center, Inc.

For Summary Judgment (July 6, 2023) ........ 256a

Citizens Medical Center, Inc. Colby,

Kansas Amended and Revised Medical

Staff Bylaws .................................................... 259a

ix

TABLE OF CONTENTS – Continued

Page

Jacqueline Wong, M.D., Expert Witness, Report

(October 8, 2022) ............................................ 262a

Memorandum in Opposition to Plaintiff’s Motion

for Partial Summary Judgment Against

Citizens Medical Center, Inc. (July 6, 2023) . 269a

Deposition of Dr. Sam Funk

(March 21, 2022) ............................................. 272a

Appellant’s Petition for Panel Rehearing

and Petition for Rehearing En Banc

(March 10, 2025) ............................................. 278a

x

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Berkley V. Walker v. BOKUF, Nat’l. Assn.,

30 F.4th 944 (10th Cir. N.M.,

April 8, 2022) ..................................................... 29

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ..................................... 29, 30

Delaney v. Cade,

255 Kan.199, 873 P.2d 175 (1994) .................... 25

Farmers Telephone Company, Inc. v. F.C.C.,

184 F.3d 1241 (10th Cir. 1999) ................... 27, 28

Griffith v. Mt. Carmel Medical Center,

831 F.Supp. 1532 (1993) ....................... 11, 13, 33

Loper Bright Enters. v. Raimondo,

603 U.S. 369, Nos. 22-451, 22-1219,

2024 WL 3208360, (June 28, 2024) ............ 29, 30

Manhattan General Equipment Company v.

Commissioner of Internal Revenue,

297 U.S. 129, 56 S. Ct. 397 (1936) .............. 27, 28

Moyle v. United States,

603 U.S. 324 (2024) .................................. i, 10, 11

Oklahoma v. United States Department of

Health & Human Servs., 107 F.4th 1209

(10th Cir. 2024) ........................................... 29, 30

Paroline v. United States,

572 U.S. 434, 134 S.Ct. 1710,

188 L.Ed.2d 714 (2014) ..................................... 19

xi

TABLE OF AUTHORITIES – Continued

Page

Perez v. Mortgage Bankers Ass’n.,

575 U.S. 92, 135 S. Ct. 1199,

191 L. Ed. 2d. 186 (2015) .................................. 30

Phillips v. Cobb,

244 F.3d 790 (10th Cir. 2001) ........................... 23

Power v. Arlington Hosp. Ass’n.,

42 F.3d 851 (4th Cir. 1994) ..... i, 13-16, 21, 24, 25

Repp v. Anadarko Mun. Hosp.,

43 F.3d 519 (10th Cir. 1994) .. i, 11, 13, 20, 21, 23

Rust v. Sullivan,

500 U.S. 173 (1991) ........................................... 29

St. Anthony Hospital v. U.S. Department of

H.H.S., 309 F.3d 680 (10th Cir. 2002) .. 17, 18, 25

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1395dd (EMTALA) .. 5, 6, 10-26, 29, 31-33

42 U.S.C. § 1395dd(a) ............................... 2, 23, 25, 26

5 U.S.C. § 553(b)(4)(A) .............................................. 30

K.S.A. 60-258a ...................................................... 1, 20

K.S.A. 65-1501(a) .................................................. 1, 15

K.S.A. 65-1501(b) ...................................................... 15

K.S.A. 65-1501a(o) .................................................... 15

xii

TABLE OF AUTHORITIES – Continued

Page

REGULATIONS

42 C.F.R. § 482.55 ................................................... 1, 2

42 C.F.R. § 489.24(a)(1)(i) ................... 2, 23, 26, 27, 29

Federal Register Vol. 59, No. 119, Wednesday,

June 22, 1994..................................................... 26

OTHER AUTHORITIES

U.S. Dept. of Health and Human Service,

Center for Medicare and Medicaid

Services Interpretive Guidelines

(2009, 2010, 2019) ................... 1, 2, 23, 29, 30, 31

U.S. Dept. of Health and Human Service,

Center for Medicare and Medicaid

Services, CMS Manual System Pub. 100-07 ...... 26

U.S. Dept. of Health and Human Service,

Center for Medicare and Medicaid

Services, Interpretive Guidelines

(July 16, 2010) ................................................... 26

U.S. Dept. of Health and Human Service,

Center for Medicare and Medicaid

Services, SOM EMTALA Guidelines

(July 19, 2019) ................................................... 28

U.S. Dept. of Health and Human Service,

Center for Medicare and Medicaid

Services, State Operations Manual

(July 19, 2019) ................................................... 27

1

OPINIONS BELOW

The Opinion of the U.S. Court of Appeals for the

Tenth Circuit dated February 24, 2025 is published at

128 F.4th 1329 (10th Cir. 2025), is included at App.1a.

The Order Granting Summary Judgment of the U.S.

District Court for the District of Kansas dated October

10, 2023 is reproduced at App.27a.

JURISDICTION

The U.S. Court of Appeals for the Tenth Circuit

denied a Petition for Rehearing on March 24, 2025.

App.59a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES, REGULATIONS

AND INTERPRETIVE GUIDELINES

1. 42 U.S.C. 1395dd (App.61a)

2. 42 C.F.R. § 482.55 (App.68a)

3. 42 C.F.R. § 489.24 (App.61a)

4. HHS/CMS Interpretive Guideline 2009 (App.74a)

5. HHS/CMS Interpretive Guideline 2010 (App.75a)

6. HHS/CMS Interpretive Guideline 2019 (App.76a)

7. K.S.A. § 65-1501 (App.77a)

8. K.S.A. § 65-1501a (App.78a)

9. K.S.A. § 60-258a (App.78a)

2

STATEMENT OF THE CASE

A. Statutory Background

EMTALA requires that a Medicare/Medicaid participating hospital provide for an appropriate medical

screening examination in its emergency department

“to determine whether or not an emergency medical

condition . . . exists” 42 U.S.C. 1395dd(a). “The examination must be conducted by an individual[s] who

is[are] determined qualified by hospital bylaws or rules

and regulations and who meet[s] the requirements of

§482.55 [of 42 C.F.R.] concerning emergency services

personnel and direction” 42 C.F.R. § 489.24(a)(1)(i). “It

is not acceptable for the hospital to allow the medical

director of the emergency department to make what

may be informal personnel appointments that could

frequently change.” HHS/CMS Interpretive Guidelines

Published July 19, 2019 (See the Interpretive Guidelines

dated 2009, 2010 and 2019 set forth in full in the

Appendix to this Petition).

B. Factual Background

On April 10, 2019, in Thomas County, Kansas,

near Colby, Ricky Koel suffered a severe right eye

globe-piercing injury from the snapping-back of a

strand of metal farm fence wire he was tightening in

the late afternoon. He was bleeding from his eye socket

and vomiting. He could see light with his right eye. He

went to the Citizens Medical Center (CMC) in Colby

and was examined in the emergency department by

Optometrist Sam R. Funk, O.D. at the request of Daniel

P. Kuhlman, M.D., the acting Medical Director. Dr.

3

Funk diagnosed Ricky’s right eye globe as healthy and

closed, not pierced or open. Ricky had no money or

insurance and it was snowing. Dr. Funk called Luther

Fry, M.D., an Ophthalmologist in Garden City, Kansas,

about 105 miles away, and arranged for Ricky to see

Dr. Fry the following morning. Neither Dr. Funk nor

Dr. Fry had privileges to practice medicine at CMC or

to perform emergency medical screening examinations

at CMC. Ricky was discharged to go home to see Dr.

Fry the following morning. Ricky was seen by a vitreoretinal surgeon over 24 hours later and diagnosed as

blind in his right eye.

C. Statement of Facts

1. On April 10, 2019, Ricky Koel suffered a severe

right eye globe injury while repairing a wire fence in

the country outside Colby, Kansas. He was struck by

the whiplashing-back of a strand of metal fence wire

which broke while he was stretching it. The fence wire

struck him directly in the right eye. He sustained an

open globe injury, meaning the globe of his right eye

was struck and pierced or cut open (App.85a, 86a-94a,

111a, 149a).

2. The Colby, Kansas General Hospital, Defendant, called “Citizens’ Medical Center, Inc.” (hereinafter

CMC) Emergency Department staff testified that they

examined Ricky Koel’s eye, observed the continuous

bleeding, and ordered a CT scan because they suspected

a “ruptured globe” from the nature of the injury and

the symptoms. (App.111a, 237a, 247a, 250a).

3. During pretrial discovery, CMC Hospital

representative Ms. Niblock testified that Ricky Koel

had an “emergency medical condition” when he was

treated by the CMC Hospital Emergency Department

4

on April 10, 2019, as defined in the Hospital’s EMTALA

policy (App.110a, 219a).

4. Dr. Kuhlman, the Physician in charge of the

Emergency Department of CMC hospital when Ricky

Koel arrived there, contacted Dr. Funk, an Optometrist,

to request Dr. Funk come to the hospital to examine

and diagnose Ricky Koel’s right eye injury. In the

opinion of the Plaintiff’s Expert Witness John R. Ludgin,

M.D., this was a violation of EMTALA because Dr.

Funk was not qualified to examine or diagnose emergency conditions under CMC hospital’s rules. (App.135a,

149a-151a, 154a). Jenny Niblock, a CMC administrator

and authorized representative, with authority to bind

the hospital, agreed. (App.170a).

5. Sam Funk, D.O. is an Optometrist in Colby,

Kansas licensed by the State of Kansas (App.132a).

He is qualified to prescribe glasses and contact lenses

Id.

6. Dr. Funk is not mentioned by name or specialty

in the Citizens Medical Center Emergency Department

(ED) Rules as eligible to provide examination or diagnosis of patients in the CMC ED (App.127a).

7. Dr. Funk examined Ricky Koel and determined

Ricky’s right eye globe was closed, meaning intact

(App.165a). Dr. Funk spoke by ‘phone to Luther Fry,

M.D., an Ophthalmologist in Garden City about Ricky

Koel’s condition and treatment (App.166a) and later

characterized his opinion after his conversation with

Dr. Fry as follows: “ . . . [You] know, time is of the

essence, but a few hours is not going to make a lot of

difference in the visual outcome.” (App.166a) and “We

would like to get them in [eye injury patients into

5

surgery] but we don’t need to get them in yesterday.”

(App.166a).

8. In the medical record, Dr. Kuhlman wrote

“closed globe per optometry” to mean he was writing

not his diagnosis but instead merely repeating Dr.

Funk’s diagnosis of “closed globe” made by Dr. Funk,

an Optometrist, from Dr. Funk’s slit lamp examination

(App.165a) of no globe rupture (App.119a, 156a-164a,

160a, 161a-164a).

9. The optometry finding of closed globe caused

Dr. Kuhlman to advise Ricky Koel to drive nonemergently to Garden City, Kansas to see Luther Fry,

M.D., an Ophthalmologist the following day, which

resulted in Ricky Koel missing the crucial 24-hour

retinal surgery window, thus losing a significant chance

of better recovery including restoration of sight in his

right eye. He is now blind in that eye (App.81a-82a,

82a-84a, 86a-94a, 98a-101a, 101a-110a, 186a-196a).

10. Jenny Niblock testified CMC Hospital policy

was for Ophthalmologists with privileges at CMC to

be consulted by phone if necessary (App.171a). Dr. Funk

confirmed this (App.170a-171a).

11. The Plaintiff moved for Partial Summary

Judgment based upon the premise that CMC’s own

EMTALA-required Medical Screening Examination

(MSE) Rules and the EMTALA statutes, rules and

regulations restricted CMC’s MSE procedure to only

Physicians, Resident Physicians, Physician Assistants

and Nurse Practitioners (App.95a, 101a, 98a-101a)

concluding with the statement that Dr. Funk, an Optometrist, was not qualified under CMC’s rules or under

EMTALA statutes, rules and regulations, to examine

and diagnose patients in the CMC Emergency Depart-

6

ment (App.101a). The Defendant CMC admitted that

the Plaintiff’s paragraphs 1, 4-7, 9-12 & 15 were not

controverted and only filed controversions of paragraphs

2, 3, 8 & 16 (App.269a).

12. The Defendant CMC moved for Summary

Judgment based upon the premise that Dr. Kuhlman,

the Medical Director of the CMC Emergency Department, was allowed by CMC articles, bylaws and

EMTALA statutes, rules and regulations to request

or call Dr. Funk, an Optometrist, to come to the CMC

Emergency Department to examine and diagnose

patients for EMTALA MSE purposes in the CMC Emergency Room (App.173a). The Plaintiff filed controversions of CMC’s paragraph 19 & 24 factual allegations

(App.256a-258a).

13. The District Court granted Summary Judgment, concluding that CMC Medical Staff Bylaws

section 10.4 requires “emergency medical treatment

exams” to be conducted by “Physicians, resident physicians, nurse practitioners and physicians’ assistants

. . . to determine whether a medical emergency exists.”

(App.275a) and the District Court concluded further as

follows:

Dr. Kuhlman [ER Director pro tem] called Sam

Funk, OD. Dr. Funk is a local optometrist

who agreed to assist in Plaintiff’s evaluation.

Dr. Funk arrived at the ER just before

Plaintiff’s CT scan was performed. He used a

slit lamp to examine Plaintiff’s eye after the

CT scan. But the ruptured globe could not be

seen with the slit lamp because Plaintiff’s

eye was filled with blood, hiding where the

rupture occurred. And Dr. Funk performed a

Seidel test. This test is designed to identify

7

some ruptured globes. It was negative but did

not rule out a ruptured globe. Dr. Funk ruled

out an open globe from what he could see. He

stated in his deposition that his diagnosis

was that it was a closed globe (from what he

could see) but that Plaintiff needed more

treatment for “another issue, lens vitreous

retinal, or globe.” Doc. 123-18 at 27.

(App.276a).

14. Dr. Kuhlman testified:

Q. What is your understanding of a treatment plan for an open globe, if you

know?

...

THE WITNESS: —the example I gave earlier

was if, for example, the CT scan had

read definitively an open globe injury,

we would have planned to immediately

transfer that patient out [by ground or

air ambulance] for an ophthalmologic

exam and whatever treatment plan

they determined was appropriate.

(App.249a).

15. Dr. Kuhlman testified further:

Q. Is it your first choice to call an optometrist when you have a differential

diagnosis of open globe in the emergency room?

A. So it’s part of the workup. I still have

plans to call the ophthalmologist. I—I

try and get as much information as I

8

can for the ophthalmologist before we

call them, so that they can give us a

better recommendation.

(App.253a).

16. Dr. Kuhlman testified, giving an exemplar of

his emergency routine, that in eye emergency cases he

would call Dr. William Clifford, M.D., a Garden City,

Kansas Ophthalmologist and active Eye Surgeon with

privileges to practice at CMC, and consult via telephone with Dr. Clifford “regardless” of whether Dr.

Clifford was physically present in the hospital:

Q. The—you said, “That’s how I was

trained.” Is it your testimony that you

were trained to call an optometrist in the

—would you explain that for me, please.

A. We were trained to ask for help from

anyone in town that was available. If

there’s an ophthalmologist available,

we’ll—so if, for example, Dr. Clifford

spends one day, or I think one day a

week, a month, as an ophthalmologist

in our specialty clinic. If he happened to

be there that day, we would have called

him down to ask for help. If there isn’t

an ophthalmologist available to help us

with the physical exam, and there’s an

optometrist as the next best available, I

will call the next best available and—

Q. Is—go ahead.

A. I’m not required to do so. I’m just trying

to get additional data and information

to try and help the ophthalmologist we

9

eventually call be able to make a better

decision and a better recommendation.

Q. The standard of care in the treatment

of eye trauma is to defer to an eye

specialist; right?

A. So at some point in care of all eye

trauma, generally, an ophthalmologist

will be consulted or an eye specialist

will be consulted at some point.

Q. It sounds like that if, for example, Dr.

Clifford was available, you would have

called him before calling an optometrist.

Is that—would you agree with me?

A. If he was physically there, absolutely,

and you know, again, at some point in

the timeliness of that case, [Dr. Clifford]

would have been called, regardless.

(App.254a-255a).

17. Jenny Niblock, an authorized corporate representative of Defendant CMC, admitted her testimony was binding on CMC with respect to all matters

surrounding the care and treatment of Ricky Koel

(App.219a).

18. Jenny Niblock testified that emergency department or emergency room privileges to practice at CMC

were granted only to medical staff, and that on April

10, 2019, as relevant to this case, only Daniel P. Kuhlman, M.D., a Colby, Kansas Family Practice Physician

and the acting CMC Emergency Department Director

on that date, William Clifford, M.D. a Garden City,

Kansas Ophthalmology Specialist and Eye Surgeon

and Kristen A. Berwick, M.D., a North Platte, Nebraska

10

Physician Ophthalmology Specialist and Eye Surgeon,

were members of the medical staff with emergency

privileges, and that Dr. Funk, a non-Physician Optometrist, was not a member of the medical staff and

had no emergency privileges. (App.202a, 207a, 259a).

(See also App.197a, App.208a-209a, 215a-216a).

19. Jenny Niblock testified that neither Dr. Fry,

a Physician Ophthalmologist in Garden City nor Dr.

Funk, a non-Physician Optometrist in Colby, were

members of the medical staff and neither one of them

had privileges to practice Medicine at CMC, and that Dr.

Funk was not qualified to perform an EMTALA medical

screening examination on Ricky Koel (App.197a, 217a).

20. Jenny Niblock testified that Physician Specialist Consultants with privileges to practice at CMC

were contacted via telephone by CMC to provide medical

opinions and consultation on active emergency department cases when they were unable to be present in

person (App.218a).

REASONS FOR GRANTING THE PETITION

I.

The Emergency Imperative of EMTALA

Displaces a State Law Medical Malpractice

Exception Just as the EMTALA Emergency

Imperative Displaced a State Law Abortion

Ban for Purposes of the District Court’s

Injunction in Moyle v. United States, 603 U.S.

324 (2024)

In Moyle v. United States, 603 U.S. 324 (2024),

the U.S. Supreme Court dismissed certiorari as improvidently granted and simultaneously vacated its stay of

11

the District Court injunction, allowing the injunction to

remain in force while the case progressed normally Id.

325. Justice Kagan approved of this as causing the

least harm since the injunction against the Idaho

abortion ban would remain in force pendente lite Id.

327-328 (carryover paragraph).

This case is the ophthalmic equivalent of Moyle.

It provides a clean vehicle for this Court to declare the

emergency imperative of EMTALA displaces the medical

malpractice exception of Repp v. Anadarko Mun.

Hosp., 43 F.3d 519, 522 (10th Cir. 1994) in ophthalmology. EMTALA is just as alive and potent here as it

is foreshadowed to be in obstetrics by the concurrences

and dissents in Moyle, supra. In this eye emergency

case, an EMTALA violation and medical malpractice

overlap without diminishing the force of EMTALA

(Statement of Facts (SOF) paras. 4-9, 13, 18 & 19).

Please read also arguments II, III and IV below, incorporated here by reference.

As the Honorable Monti Belot, U. S. District Judge

for the District of Kansas wrote about the medical

malpractice exception in Griffith v. Mt. Carmel Medical

Center, 831 F.Supp. 1532 (1993):

The same evidence that supports a medical

malpractice claim under state law may, in

some circumstances, also constitute evidence

of differential treatment sufficient to support

a claim for failure to give an “appropriate

medical screening” under EMTALA.

Griffith, supra., 831 F.Supp. at 1543, first whole paragraph, second sentence. That is certainly true of the

improper, informal non-EMTALA appointment of the

unapproved non-physician Dr. Funk and his call to an

12

un-approved, non-staff physician Dr. Fry in this case,

which resulted in the District Court’s factual conclusion

that Dr. Funk, an unqualified and unapproved Optometrist, made the controlling erroneous diagnosis of

closed globe here (SOF 13) which caused Ricky Koel’s

permanent right eye blindness (SOF paras. 4-9, 13, 18

& 19) See also Arguments II-V below in support of this

Argument.

II. The Tenth Circuit Misapprehended that Dr.

Funk Was in Reality an Optometrist and not

a Physician and Both the District Court and

the Tenth Circuit panel Ignored that Dr.

Kuhlman Violated 42 U.S.C. § 1395dd(a) and

42 C.F.R. § 489.24(a)(1)(i) When He Permitted

Dr. Funk to examine and Diagnose a Serious

Open Globe Eye Injury, Exposing a Circuit

Split

The Tenth Circuit committed clear error by failing

to realize that Dr. Funk was an Optometrist and not

a Physician and therefore unqualified to examine and

diagnose under EMTALA (SOF 4-6, 11 &13). Both the

District and Tenth Circuit courts also failed to

understand that Dr. Kuhlman’s informal appointment

of Dr. Funk was outside the terms of CMC Medical

Staff Bylaw 10.4 (SOF 11 & 4-6). That is, it was a

violation of Defendant Citizens’ Medical Center, Inc’s

(hereinafter CMC’s) medical staff bylaws and EMTALA

statutes and regulations to appoint Dr.Funk to examine

and diagnose Ricky Koel (SOF 11 & 4-6).

The Tenth Circuit wrote the following which clearly

proves it mistakenly thought Dr. Funk was a physician:

Similarly, Section 10.4 of Citizens’ Bylaws,

titled “Emergency Medical Treatment Exam,”

13

provides that a medical screening examination

may be conducted by physicians (i.e., Drs.

Kuhlman and Funk), resident physicians,

nurse practitioners, or physicians’ assistants . . . .

(App.9a). (Tenth Circuit Opinion, PACER Document

number 75, page 9, last four lines) (emphasis added).

The formally-adopted CMC Medical Staff Bylaw

10.4 is by definition “the standard to which the

hospital [CMC] adheres” Power v. Arlington Hosp.

Ass’n., 42 F.3d 851, 858 (4th Cir. 1994) quoting Power

v. Arlington Hosp. Ass’n., 800 F.Supp. 1384 at 1387,

fn. 6 (E.D. Va. 1992) and Griffith, supra. See also Repp

v. Anadarko Municipal Hospital, 453 F.3d 519, 522523, fn. 4 (10th Cir. 1994).

The Fourth Circuit’s “the standard to which the

hospital adheres” rule is clearly a moderate and correct approach to EMTALA application in this context.

Yet, footnote four in Repp, supra. and the surrounding

text clearly indicate that the more moderate Fourth

Circuit view of EMTALA is disfavored by the Tenth

Circuit Repp, supra., 453 F.3d at 522-523, fn. 4. This

exposes a Circuit split between the Tenth and Fourth

Circuits in their different practical approaches to

handling the overlapping of EMTALA with medical

malpractice.

In footnote four of Repp, supra., 453 F.3d at 522523, fn. 4, the Tenth Circuit wrote, in part: “A court

should ask only whether the hospital adhered to its

own procedures. . . . ” Id. However, the Tenth Circuit

did not do that in this case. The Tenth Circuit did not

apply CMC Medical Staff Bylaw 10.4 to the facts here

and determine, as it should have, that CMC violated

14

EMTALA by violating its own Medical Staff Bylaw

10.4 by allowing Dr. Funk, an Optometrist, to perform

an MSE, examining and diagnosing a serious sightthreatening eye injury. That is precisely why the

Circuit split between the Tenth and Fourth Circuits

here must be resolved. The split is defined here by the

failure of the Tenth Circuit to actually execute, in

practice, the correct application of EMTALA uniformly

with all other Circuits when medical malpractice facts

are present. This Court should step in to resolve the

split by directing all Circuits to conform to the required

application of EMTALA rubric in this context: to hold

participating hospitals to the strict adherence to their

formally-adopted EMTALA MSE rules or Bylaws

regardless of the presence of medical malpractice facts.

The Tenth Circuit is too quick to reject an EMTALA

case which contains even a hint of medical malpractice.

That overly-tense, overly-limited, strictissimi juris

EMTALA atmosphere in the Tenth Circuit, shown in

its actual, deficient execution of EMTALA in this case

must be contrasted with the moderate, more plain view

taken of these overlap cases by the Fourth Circuit as

evinced in Power, supra. The Tenth Circuit’s cramped

view is manifest in this case where the drive to

dismiss on de minimis grounds (Tenth Circuit opinion,

p. 7, last two lines and p. 10, top para. and fn.3)

distracted the panel from attending to the important

detail that Dr. Funk, a non-physician, was wholly

unqualified and unapproved under CMC Bylaw 10.4

to examine and diagnose in the emergency department,

yet invited to do so by Dr. Kuhlman. It was not de

minimis for Dr. Kuhlman to violate the main EMTALA

Physician-credentialing requirement in the CMC MSErelated Medical Staff Bylaws. This Court should grant

15

certiorari to resolve this inconsistent and overlylimited divergence in approach by the Tenth Circuit.

The record incontrovertibly establishes that Dr.

Funk was not a Physician, but an Optometrist, professionally and legally incapable of conducting an ophthalmic examination to diagnose globe rupture under

Kansas law (K.S.A. 65-1501(a) & (b) , K.S.A. 651501a(o)) as well as EMTALA (SOF 4-6, 11 & 13). The

Tenth Circuit’s erroneous reliance on Dr. Funk’s

Optometric non-“diagnosis” that Ricky Koel’s globe

was closed, or healthy and intact, as if it were a true

Licensed Physician’s diagnosis, is a foundational factual

mistake. That mistake caused the Tenth Circuit to

miss or overlook Dr. Kuhlman’s EMTALA violation

which was the cause of CMC’s failure to recognize the

emergency through proper Ophthalmologic consultation

with Dr. Clifford, a CMC-approved, properly credentialed

Consulting Ophthalmologist (SOF 16) and immediately

transfer Ricky Koel to a tertiary care center in Denver

for necessary critical emergency ophthalmic surgery

(SOF 9, 10, 14, 15 &16). That also was an additional

part of “the standard to which the hospital [CMC]

adhere[d]” Power, supra. which Dr. Kuhlman proved

through his own testimony (SOF 16, 14, 15 9 & 10).

Had the panel properly recognized Dr. Funk’s

status as a non-physician, it would have been compelled

to acknowledge that CMC violated EMTALA by failing

to provide a proper medical screening examination

within the terms of CMC staff Bylaw 10.4. Further,

CMC was bound to follow Dr. Kuhlman’s precise,

habitual practice which he testified he followed

“regardless” (SOF 16) Power, supra. Instead, the

panel’s misunderstanding of this fact resulted in the

16

incorrect factual and legal conclusion that CMC

satisfied its statutory obligations under EMTALA.

There is also a genuine dispute of material fact

precluding Summary Judgment pursuant to FRCP

56(a) on the issue of who actually made the MSE diagnosis of “closed globe” or “no globe rupture” in Ricky

Koel’s right eye, written in the medical record (Statement of Facts (SOF) supra., paras. 7, 8 &13). There was

ample direct evidence that it was solely the diagnosis

of Defendant Sam Funk, Optometrist, unqualified

under CMC’s own staff bylaws, EMTALA and Kansas

State Law Id. (SOF 4-9, 11 &13). The District Court

found as a fact that Dr. Sam Funk diagnosed a closed

globe: “Dr. Funk ruled out an open globe from what he

could see. He stated in his deposition that his diagnosis was that it was a closed globe. . . . ” (District Court

Memorandum and Order pages 3-4)(See also the final

paragraphs of argument IV, infra.).

But the cause of that misdiagnosis was the

permission which Dr. Kuhlman granted to Dr. Funk

to be in a physical position so that Dr. Funk would

have an opportunity to do anything at all for Ricky

Koel, in the Emergency Department, in the first place.

It was a clear violation of CMC Hospital’s Emergency

Department EMTALA-compliant protocol (see argument IV, infra.) by Dr. Kuhlman which caused the

disastrous and crucial, irremediable further injury to

Ricky Koel’s right eye by the over twenty-four hour

delay (SOF 4-9). That was not medical malpractice by

Dr. Kuhlman as the District Court and the Tenth

Circuit erroneously concluded. It was instead a brightline violation of EMTALA by Dr. Kuhlman. That

violation was Dr. Kuhlman’s failure to observe the

clearly-set-forth CMC Hospital written rule that only

17

Physicians, Interns, Physician Assistants and Registered

Nurses could perform EMTALA Medical Screening

Examinations as set forth in federal law (See final

paras. of argument IV, infra.).

CMC could have made provision for non-Physicians

to become involved in EMTALA screening examinations; however, it did not do so by a Board-approved or

Medical Staff-approved written amendment or enlargement of the formally-promulgated list of four types of

authorized practitioners set forth above. There was no

special additional list of names of non-Physicians or

categories of non-Physician health practitioners which

CMC caused to be set out in writing, formally, and

formally approved in the CMC Articles, Bylaws or

Medical Staff Rules (See also HHS/CMS Interpretive

Guidelines at App.74a, 75a & 76a). The District Court

granted Summary Judgment on that discrete point

(SOF 4-6, 11-13, 16 & 19).

III. The District and Circuit Courts Erred in

Failing to Apply Controlling EMTALA

Precedent in St. Anthony Hospital v. U.S.

Department of H.H.S., 309 F.3d 680 (10th Cir.

2002)

The District and the Tenth Circuit courts both

erroneously failed to apply the bright line EMTALA

rule that if a hospital cannot provide examination or

treatment for a patient’s emergency medical condition

it must immediately transfer him, at its own expense,

to a facility which can.

The Tenth Circuit panel’s ruling is in direct conflict

with St. Anthony Hospital v. U.S. Department of

H.H.S., 309 F.3d 680, 692-693 (10th Cir. 2002), which

unambiguously requires that a hospital must “provide”

18

(meaning pay for) either examination, treatment, and

stabilization or transfer. Id. When this obligation of

CMC to pay for an air or ground ambulance transfer

to Denver (the closest tertiary care center to Colby in

Western Kansas) is considered in tandem with Argument V infra., the conclusion is inescapable that Ricky

was not properly diagnosed and immediately transferred

for financial reasons in violation of EMTALA (See

Argument V, infra.).

IV. The District and Circuit Courts Erred in

Failing to Conclude That Dr. Funk’s

Misdiagnosis of Closed Globe and the

Resulting Failure to Transfer Ricky Koel

Immediately to Denver Were Rooted in Dr.

Kuhlman’s Informal Ad Hoc Appointment of

Dr. Funk

The District Court and the Tenth Circuit panel

both failed to recognize Dr. Kuhlman’s EMTALA

violation caused the erroneous diagnostic conclusion

by Dr. Funk that Ricky Koel’s right eye globe was

unharmed and intact, leading to his non-emergency

discharge (See Arguments II & III, supra.)

This case surely provides an opportunity for this

Court to clearly explain the extent to which liability

under EMTALA can coexist with medical malpractice

liability under State Law. The presence of medical

malpractice in the facts of an EMTALA case certainly

does not “poison the well.” Overlapping medical malpractice does not serve as a rude shield of immunity from

EMTALA liability if all the elements of an EMTALA

violation enable, create the opportunity for and therefore

in fact do coincide with medical malpractice (See

Arguments II & III, supra.)

19

It was neither Dr. Funk’s negligence nor Dr. Kuhlman’s negligence which was the root cause of the

damage to Ricky Koel’s eye: it was instead only Dr.

Kuhlman’s violation of EMTALA in his failure to

follow CMC’s Hospital Bylaws and Staff Rules (SOF 4).

It was the physical access which Dr. Kuhlman granted

to Dr. Funk to examine and diagnose Ricky Koel’s

right eye which caused Ricky Koel’s discharge and

which effectively prevented Ricky Koel’s urgent transfer

by ground or air ambulance from Colby to Denver,

delaying timely treatment and causing or contributing

to cause permanent total blindness in his right eye

(SOF 4-9, 13 & 19).

This case presents a but-for causation or proximate

cause/contributing cause issue. This Court should

avail itself of this case as a vehicle to explain precisely

how the admixture of EMTALA violations with medical

negligence does not destroy an EMTALA case. That is,

this Court should fully delve into the issue of whether

the actions of Dr. Kuhlman in violating EMTALA

through his selection of and request to Dr. Funk to

come to the emergency department were the proximate

but-for cause of misdiagnosis of the globe, delay and

the following non-emergency discharge of Ricky Koel

instead of immediate emergency transfer. Logically,

the answer is yes: but-for causation is proven here.

But for Dr. Kuhlman’s violation of EMTALA, Dr.

Funk would not have been in a position to cause the

misdiagnosis, delay and complete loss of sight in Ricky

Koel’s right eye See Paroline v. United States, 572 U.S.

434, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). In the

alternative, given no causation language in 42 U.S.C.

1395dd, the EMTALA violation was a concurring or

contributing cause. Please see the Kansas Comparative

20

Negligence Statute K.S.A. 60-258a. This Court should

grant Certiorari to make clear that analysis of EMTALA

causation should not be abandoned simply because

medical malpractice was committed in an overlapping

manner with the EMTALA violation still operating as

a true proximate, but-for cause of the injury in a definite,

clear, decisive and consequential causal manner.

Viewed simply and directly, this case presents a

scenario in which, without the action of Dr. Kuhlman,

the acting or pro tem Medical Director of the CMC

Emergency Department, Dr. Funk would, rightly,

properly and pursuant to all CMC rules, bylaws and

EMTALA provisions, not have been allowed to conduct

an emergency medical exam (SOF 4 and 13 (first part

of 13; App. 74a, 75a & 76a).). Dr. Funk would thus not

have been able to do anything concerning Ricky Koel,

and not able to do him any harm through incorrect

actions and incorrect diagnoses (SOF 4-9, 13 & 19).

Both the District Court and the Tenth Circuit

erred in concluding that this EMTALA violation was

de minimis citing Repp v. Anadarko Municipal Hospital,

453 F.3d 519 (10th Cir. 1994) (See District Court

Memorandum and Order at its third unnumbered

paragraph and later in its section III(A) first paragraph,

and the Tenth Circuit Memorandum Opinion at II(B)(1),

para. 2, citing Repp). This was legally incorrect because

Repp and its similar de minimis decisions are not

analogous. Repp involved a claim that emergency room

nurses, qualified under hospital rules to be present

and lawfully attempting to do their job correctly,

failed to take a complete medical history from the

patient and failed to ask the patient to list his

medications, but the record disclosed that the patient’s

wife informed the nurses of his medical history and

21

medications Id. 523. This case does not involve anything like that. In this case, an unqualified Optometrist who was not a Physician and did not have privileges

to practice medicine in the CMC Emergency Department and was not expressly-listed in the hospital bylaws

as a non-medical ancillary staff member who was

specially permitted by CMC to assist in emergency

medical care, and was not a QMP (“qualified medical

professional”) and therefore not allowed to perform an

MSE (“medical screening examination”) under EMTALA

statutes, regulations, or CMC Articles, Bylaws or Medical Staff Rules, was informally allowed to examine

and diagnose a serious bleeding open globe eye injury

(SOF 4-9) Power, supra., 42 F.3d 851, 858 (4th Cir.

1994).

Petitioner has searched diligently throughout the

cases involving the de minimis exception and cannot

find any case involving the claimed wrongful medical

emergency examination or medical diagnostic act of a

person who was: (1) unqualified to examine and diagnose under state law because not holding a license to

practice medicine or medical care in the categories of

licensed medical professionals expressly permitted by

hospital emergency department rules; (2) not expressly

and specially named or permitted to examine and

diagnose by category expressly stated in any other

part of the hospital articles of incorporation, hospital

bylaws or medical staff rules to be present in the

emergency department and examine and diagnose

patients therein; and (3) not qualified to examine and

diagnose, in other words, to perform an MSE (“medical

screening examination”) within the rubric of the

EMTALA statute 42 U.S.C. 1395dd and its accompanying HHS/CMS regulations and HHS/CMS interpretive

22

guidelines discussed in this brief (SOF 4-6, 13, 18-19

& App.74a, 75a & 76a).

When causation is considered, the participation

of Dr. Fry, a red herring up to this point, is more appropriately characterized as a concurring cause which,

but for the call Dr. Funk made to him, would not have

come into being. Dr. Funk’s testimony about his ‘phone

call to Dr. Fry proves that the ‘phone consultation they

had only served to confirm Dr. Funk in his erroneous

unallowed, unprofessional and impermissible diagnosis

(SOF 7). It must also be remembered that Dr. Funk

did not have privileges to practice as a Consultant

Physician at CMC. Whatever involvement Dr. Fry

had, it is surely correct to conclude that involving him

was another EMTALA violation because he was not

privileged to provide ‘phone consultation since he was

not a member of the non-resident consulting staff

(SOF 18 & 19). The only person who involved him in

this case was Dr. Funk, whose invitation, presence

and participation were all, also, in violation of EMTALA

(Please see the contradictory “time is of the essence”

& “but we don’t need to get them in yesterday” testimony

of Dr. Funk, set forth in SOF 7). It is only right to

conclude that this cascade of EMTALA violations consisting in and springing from Dr. Funk’s conduct render

Dr. Kuhlman’s invitation to Dr. Funk a meaningful,

significant and consequential injury-causing EMTALA

violation.

It is the purpose of EMTALA to require that

medical screening examinations for all patients who

enter each hospital’s emergency department receive the

same care as all others, according to the hospital’s

rules, bylaws and staff protocols and EMTALA generally

42 U.S.C. 1395dd. A bright line violation of written

23

hospital rules which causes or contributes to cause

injury to a patient is, of itself, a sufficient, actionable

violation of EMTALA without more and no specific

evidentiary proof of specifically-named or identified

other similar patients in a certain “more favorably

treated” list of similar cases or “more favorably examined” group of similar patients is necessary. Both the

District Court (slip opinion: page 11, bottom para.,

line 4; page 14, line 10; page 16, second whole para.,

line 1) and the Tenth Circuit (slip opinion page 10,

final sentence) erred in implicitly requiring this additional factual list-type proof of “disparate treatment,”

when none is necessary:

“Disparate treatment” is simply another term

for describing or measuring a hospital’s duty

to abide by its established procedures. Unless

each patient, regardless of perceived ability or

inability to pay, is treated in a uniform manner

in accordance with the existing procedures,

EMTALA liability attaches. See Repp, 43 F.3d

at 522.

Phillips v. Cobb, 244 F.3d 790 (10th Cir. 2001) (Opinion

sec. II(A)(2)(fourth paragraph)) (emphasis added).

The CMC EMTALA-mandated formal written

Hospital Staff rules and bylaws (“established procedures” Phillips, supra. 244 F.3d 790 at II(A)(2)) which

Dr. Kuhlman violated were written and adopted by

CMC in clear compliance with the applicable EMTALA

rules set forth in 42 U.S.C. § 1395dd(a), 42 C.F.R.

§ 489.24(a)(1)(i) and the HHS/CMS Interpretive Guidelines issued in 2009, 2010 and 2019 which are all

reprinted at App.74a, 75a & 76a. The 2009 version reads:

24

The MSE must be conducted by an individual(s) who is [are] determined qualified by

hospital by-laws or rules and regulations . . .

in a document approved by [a] governing

body of the hospital. . . . It is not acceptable

for the hospital to allow informal personnel

appointments that could frequently change.

2009 publication (1) above (App.74a) the last sentence

of which was reworded in 2019:

It is not acceptable for the hospital to allow

the medical director of the emergency department to make what may be informal personnel

appointments that could frequently change.

2019 publication (3) above (App.76a; See also App.74a,

75a). This is truly “the standard to which the hospital

[CMC] adheres” but violated in this case Power, supra.,

42 F.3d 851, 858 (4th Cir. 1994).

The Plaintiff Ricky Koel suffered a serious injury

to the globe of his right eye. He was examined by an

unqualified and unapproved Optometrist and not

treated with anything but a superficial eye shield.

Summary Judgment should have been denied for CMC’s

violation of its Bylaw 10.4 “the standard to which [it]

adhere[d]” in all similar cases but ignored in this one

Power, supra., 42 F.3d 851, 858 (4th Cir. 1994) FRCP

56 (SOF 4-9, 13, 18-19).

Dr. Kuhlman knew how to contact Dr. Clifford,

an Ophthalmologist, for ‘phone consultations in the

emergency department after hours, and had done so

in the past. That course of action was his usual procedure in Ophthalmologic cases. He could have easily

followed the CMC rules and bylaws, spoken to Dr.

Clifford and not called Dr. Funk, and transferred Ricky

25

Koel urgently to Denver very quickly, saving sight in

Ricky Koel’s right eye (SOF 9, 15, 16 &20). Power,

supra.

Defendant CMC, acting through Dr. Kuhlman,

the Medical Director of its Emergency Department,

violated EMTALA by informally calling Dr. Funk, an

Optometrist, to come to the Emergency Room to examine, diagnose and treat Ricky Koel. This violation caused

Ricky Koel to lose a substantial chance of better recovery

and restoration of sight in his right eye Delaney v.

Cade, 255 Kan.199, 203 (2nd whole para.) 873 P.2d

175 (1994). This specific EMTALA violation also directly

caused CMC to fail to immediately transport Ricky to

a tertiary care center in Denver by air ambulance,

which it was required to do to provide him with crucial

retinal surgery by experts during the all-important

initial 24-hour window after his open globe injury. As

this court recognized in St. Anthony Hospital v. U. S.

Department of H.H.S., 309 F.3d 680, 692-693 (10th

Cir. 2002) “the hospital must provide either [examination, treatment and stabilization] or transfer . . . .”

Id. Defendant Citizens’ was required to “provide,” i.e.,

arrange and pay for, Ricky’s emergent transfer to a

facility capable of treating his condition.

EMTALA requires that a hospital provide for an

appropriate medical screening examination at 42 U.S.C.

1395dd(a):

. . . the hospital must provide for an appropriate medical screening examination within

the capability of the hospital’s emergency

department, including ancillary services routinely available to the emergency department,

to determine whether or not an emergency

medical condition . . . exists.

26

42 U.S.C. § 1395dd(a)(final three clauses; emphasis

added).

The applicable Code of Federal Regulations subsection 42 C.F.R. § 489.24(a)(1)(i) which implements 42

U.S.C. 1395dd(a) reads:

. . . Provide an appropriate medical screening

examination within the capability of the

hospital’s emergency department, including

ancillary services routinely available to the

emergency department, to determine whether

or not an emergency medical condition exists.

The examination must be conducted by an

individual(s) who is [are] determined qualified

by hospital bylaws or rules and regulations

and who meet[s] the requirements of § 482.55

of this chapter concerning emergency services

personnel and direction . . .

42 C.F.R. § 489.24(a)(1)(i)(emphasis added) first published in the Federal Register Vol. 59, No. 119, Wednesday, June 22, 1994, pages 32120 (lower right-hand

column)-32121 (upper left-hand column).

The above Medicare Code of Federal Regulations

subsection is applied and enforced to carry out EMTALA

via the U.S. Department of Health and Human Services’

Center for Medicare and Medicaid Services Interpretive

Guidelines 16-page July 16, 2010 CMS Manual System

Pub. 100-07, App.75a. This specific paragraph proves

Defendant CMC Hospital violated EMTALA through Dr.

Kuhlman’s informal appointment of his friend (App.

163a). Dr. Funk to examine and diagnose the Plaintiff:

The MSE must be conducted by an individual(s) who is [are] determined qualified by

hospital by-laws . . . in a document . . . It is

27

not acceptable for the hospital to allow

informal personnel appointments that could

frequently change.

CMS Manual System Pub. 100-07 Id. (See App.75a).

A full understanding of the meaning of the May 29,

2009 Interpretive Guidelines language (App.74a) quoted

above can be gleaned from reading its successor

version published on July 19, 2019, exactly 100 days

after the April 10 incident in this case, entitled Revisions to the State Operations Manual (SOM) Chapter

5 and Appendix V, PDF pages 5-6 of 68 total pages

(Carryover paragraph; See App.76a) which reads:

It is not acceptable for the hospital to allow

the medical director of the emergency department to make what may be informal personnel

appointments that could frequently change.

Revisions to the State Operations Manual, published

7-19-19. (App.76a).

The last interpretive guideline quoted above,

published on July 19, 2019, 100 days after the April 10,

2019, incident in this case, App.76a, can be retroactively

applied. Retroactive application of its interpretive

guidance is consistent with the Tenth Circuit’s

previously-expressed view that an agency’s interpretive

rulings or corollaries can be applied retroactively,

whereas statutes cannot Farmers Telephone Company,

Inc. v. F.C.C., 184 F.3d 1241, 1252 (second and third

whole paragraphs)(10th Cir. 1999). The Tenth Circuit

quoted Manhattan General Equipment Company v.

Commissioner of Internal Revenue, 297 U.S. 129, 135,

56 S. Ct. 397 (1936):

28

. . . explaining that an agency ruling interpreting a statute “is no more retroactive in its

operation than is a judicial determination

construing and applying a statute to a case

in hand.

Farmers, supra., 184 F.3d at 1252, quoting Manhattan

Co., supra., 297 U.S. at 135.

It is notable that the final highlighted sentence in

the last interpretive guidelines paragraph quoted

above from 2019 is identical with the actions of Dr.

Kuhlman in this case:

It is not acceptable for the hospital to allow

the medical director of the emergency department [Dr. Kuhlman] to make what may be

informal personnel appointments [of Dr.

Funk] that could frequently change.

SOM EMTALA Guidelines Revision Issued 7-19-’19,

pages 5-6 of 68 (App.76a, adapted by interlineation).

Dr. Kuhlman, the CMC Emergency Department’s

Medical Director, informally appointed Dr. Funk, an

Optometrist, to perform the crucial emergency medical

screening examination on Ricky Koel. Dr. Funk, as a

definite causal result thereof, was placed precisely in

position to examine and misdiagnose Ricky Koel’s

injured globe as closed and uninjured. Further, Dr.

Funk was enabled by that violation to erroneously

recommend treatment which consisted of doing nothing

for well over 24 hours.

CMC’s assertion of ignorance of the ruptured

globe is undermined by its decision to request an

optometrist, Dr. Funk, to conduct the emergency

medical screening—a role for which he lacked the

necessary qualifications. This improper delegation

29

violated EMTALA, delaying essential treatment. By

assigning a critical task to an unapproved, unqualified

individual, the hospital breached EMTALA, causing

severe injury to Ricky.

The Court has the right to rely on these HHS/CMS

Interpretive Guidelines to understand the meaning

and effect of 42 C.F.R. 489.24(a)(1)(i) in this case. The

Interpretive Guidelines are reasonable and, in their

character and context, do no more than provide concrete

examples of proper enforcement of the law and regulation. The interpretive guidelines quoted above satisfy

the Tenth Circuit’s interpretive guidelines criteria of

reasonableness, appropriate context and character as

set forth in Berkley V. Walker v. BOKUF, Nat’l. Assn.,

30 F.4th 944, 1010-1011 (10th Cir. N.M., April 8, 2022),

reh. den. 5-19-’22, cert. den. 10-17-’22.

The Plaintiff is well aware of Loper Bright Enters.

v. Raimondo, 603 U.S. 369, Nos. 22-451, 22-1219,

2024 WL 3208360, (June 28, 2024) which might vitiate

Berkley, supra. However, the Plaintiff is also aware

that the Tenth Circuit has considered that matter and

has concluded that Loper, supra., does not call into

question previous cases, such as Berkley, supra., which

have relied on the framework established under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Please see footnote 16 in

Oklahoma v. United States Department of Health &

Human Servs., 107 F.4th 1209 (10th Cir. 2024) which

reads at page 1226 as follows:

In Rust v. Sullivan, the Supreme Court applied

a two-part test that had been established in

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).

Roughly two weeks ago, the Court overruled

30

Chevron. Loper Bright Enters. v. Raimondo,

603 U.S. [369], Nos. 22-451, 22-1219, 2024

WL 3208360, at *21 (June 28, 2024). But the

Court clarified that it was not “call[ing] into

question prior cases that [had] relied on the

Chevron framework.

Id. Oklahoma v. United States Department of Health

& Human Servs., 107 F.4th 1209, 1218-1219, 1226, fn.16

(10th Cir. 2024).

To make clear the authority of HHS/CMS to

promulgate and publish these Interpretive Guidelines

it should be emphasized that there is no notice and

comment required for interpretive guidelines 5 U.S.C.

553(b)(4)(A):

(b) general notice of proposed rulemaking

shall be published . . . Except when notice or

hearing is required by statute, this subsection does not apply – (A) to interpretative

rules, general statements of policy, or rules

of agency organization, procedure, or practice. . . .

5 U.S.C. 553(b)(4)(A)(with preamble). See Perez v.

Mortgage Bankers Ass’n., 575 U.S. 92, 96-97, 135 S.

Ct. 1199, 1203-1204, 191 L. Ed. 2d. 186 (2015).

The Interpretive Guidelines regular revisions

from May 29, 2009 and July 19, 2019 and one interim

supplement from July 16, 2010, were all published

electronically via email on their dates of publication

and disseminated to all Medicare and Medicaid

Participants and are available as set forth in detail in

the CMS website at:

31

https://www.cms.gov/medicare/regulationsguidance/transmittals

In light of the above, and in an attempt to fulfill

the requirements of it, of the Defendant Citizens

established the following EMTALA Emergency Department Rules:

Physician List. CMCI must maintain a list of

Physicians who are on-call to provide treatment necessary to stabilize an individual with

an emergent medical condition within the

capabilities and capacity of the staff and the

facility. When an emergent patient needs the

services of a Physician on the on-call list, the

on-call Physician or extender (ARNP, PA, or

resident Physician) must appear within 30

minutes from the presentation time of the

patient . . .

(App.127a). And:

14.3 PATIENT PROTOCOL

(a) Medical Screening Examination. All

persons who come to the Hospital for treatment shall be afforded a medical screening

examination to determine whether or not an

emergency medical condition exists. Individuals qualified to conduct the medical screening

examination include:

1.

(i) Physicians;

2.

(ii) Resident Physicians;

3.

(iii) Nurse practitioners; and

4.

(iv) Physician assistants.

32

(App.127a-128a). Defendant CMC never promulgated

a list of names of non-Physician, non-employee

EMTALA screeners in the Hospital Board meetings

held to approve the above rules on January 30, 2018

and February 19, 2018, respectively (App.131a).

Given the above very clear rules, the Petitioner

submits there was no excuse for Dr. Kuhlman summoning Dr. Funk when he knew how to contact Dr.

Clifford, an Ophthalmologist he knew well, by ‘phone,

and obtain a ‘phone consultation from Dr. Clifford

immediately, which would have revealed the true

imperative of instantaneous transfer of Ricky Koel to

Denver for sight-saving surgery in his right eye (SOF

14-16 & 18-20).

V.

The District and Circuit Courts Erred in

Failing to Conclude That Ricky Koel’s Right

Eye Globe Was Misdiagnosed as Closed and

Non-Emergent and He Was Therefore Not

Immediately Sent by Air Ambulance to

Denver for Emergency Eye Surgery Because

He Had No Health Plan or Workers Compensation Insurance

Dr. Kuhlman decided that Ricky should not be

transferred to a facility capable of treating a ruptured

globe (App.111a). Dr Kuhlman believed that immediate

transfer via ground or air ambulance to such a facility

could leave Ricky with a “five-figure medical bill”

(App.112a). Dr. Kuhlman and CMC knew Ricky did

not have any insurance and did not have enough

money for even one night in a hotel in Garden City

(App.113a). Dr. Funk also did not want to treat Ricky

urgently with emergency eye surgery because he did not

want to waste the cost of a surgical team (App.111a).

33

The District Court considered the Plaintiff’s

argument (App.114a-118a) that financial considerations

caused the Plaintiff to receive different medical care

than that required by CMC’s emergency department

policies, and rejected it (App.32a. 49a).

The Tenth Circuit considered the Plaintiff’s argument that his substandard evaluation and diagnosis

was influenced by financial considerations in violation

of EMTALA and rejected it. (See 10th Circuit Appellant’s Brief Doc. 29, pp. 34-36, Argument point 3; See

also 10th Circuit Slip Opinion at App.4a. 10a.)

It is clear that EMTALA does not require a Plaintiff

to show an economic motive to recover; however, the

existence of an economic motive is highly relevant to

prove that a patient’s misdiagnosis was motivated by

economic considerations or the patient’s lack of insurance Griffith v. Mt. Carmel Medical Center, 831 F.Supp.

1532, 1542-1543 (D. Kan. 1993). Just as in Griffith,

supra., the statements made by Dr. Kuhlman and Dr.

Funk about the Plaintiff’s penury are evidence which,

if believed, proves that the failure to diagnose the

Plaintiff with an apparent globe rupture, or to diagnose

his condition as an eye globe emergency and order an

emergent transfer, were much more than a misdiagnosis: “In the present case, Mrs. Griffith has presented

evidence, including the alleged statements of hospital

personnel discussed supra, suggesting that more than

a mere misdiagnosis was involved.” Griffith, supra.,

831 F.Supp. 1532, 1542.

Please see the related Argument III, supra., which

emphasizes that in this case EMTALA requires the

participating transferring hospital (CMC) to provide

or pay for the cost of emergency transfer if a patient

34

in an emergency condition (Ricky Koel) is without

financial resources.

CONCLUSION

WHEREFORE, the Plaintiff prays Certiorari be

granted.

Respectfully submitted,

Michael W. Gross

Counsel of Record

LAW OFFICES OF MICHAEL W. GROSS, LLC

110 16th Street

Suite 1400, #46

Denver, CO 80202

(303) 726-5428

mwgrosslaw@comcast.net

Counsel for Petitioner

June 20, 2025