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373 F.3d 1151, 17 Fla. L. Weekly Fed. C 677 (Cite as: 373 F.3d 1151)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

United States Court of Appeals,

Eleventh Circuit. Anne Marie NOLEN, individually, and as natural

heir of the Estate of Baby B, and Baby C, Plaintiff-

Appellant, v.


Florida corporation, Geoffrey Zann, M.D., Joan

Reinsvold, RN, Susan Slavicek, Defendants-

Appellees. No. 04-10228

Non-Argument Calendar.

June 18, 2004. Background: The United States District Court for

the Southern District of Florida, No. 02-80410-CV-

KLR, Kenneth L. Ryskamp, J., granted summary

judgment in favor of hospital on outpatient's Emer-

gency Medical Treatment and Active Labor Act

(EMTALA) claims, and outpatient appealed. Holdings: The Court of Appeals held that: (1) hospital was not required under EMTALA to

have a written emergency screening procedure, and (2) there was no violation of the EMTALA where

hospital gave to pregnant outpatient the same quality

screening that it would have given a similarly situat-

ed outpatient. Affirmed.

Appeal from the United States District Court for the

Southern District of Florida. Before CARNES, HULL and PRYOR, Circuit Judg-

es. PER CURIAM: Anne Marie Nolen appeals from a summary judg-

ment entered against her. The district court held that

Nolen's complaint, brought under both the Emergen-

cy Medical Treatment and Active Labor Act (EM-

TALA), 42 U.S.C. section 1395dd, and Florida law,

failed as a matter of law. We affirm; the district court

properly granted summary judgment in favor of the

Boca Raton Community Hospital, Inc. (Hospital).

I. FACTS AND PROCEDURAL HISTORY Nolen was a pediatric nurse at the Hospital. She was

about twenty-two weeks pregnant with triplets and

had insurance coverage. At approximately 5:00 p.m.

on May 4, 2000, Nolen arrived at the Hospital for a

labor check at the direction of her physician, Dr.

Zann. The Hospital admitted Nolen as an outpatient

about twenty minutes later. She complained of

cramping and a mucous discharge that she feared

signaled the onset of labor. Nolen was first treated by a Hospital nurse,

Reinsvold, in the labor and delivery unit of the Hos-

pital, One Family Place. Reinsvold undertook prelim-

inary care processes, including the following

measures: taking Nolen's vital signs, taking Nolen's

medical history, listening to the unborn babies' hearts,

conducting a fetal monitor, and giving an initial ex-

amination of Nolen's abdomen. Nolen was attached

to a fetal monitor, which detects uterine contractions

and uterine irritability, for more than an hour.

Reinsvold also paged Dr. Zann to see Nolen shortly

after Nolen's admission to One Family Place. After the initial assessment performed by Reinsvold,

Dr. Zann arrived to examine Nolen, who was still on

outpatient status, about an hour and ten minutes after

she was first registered by the Hospital. Dr. Zann

performed a visual exam of Nolen's cervix, took a

culture of her vagina, and *1153 fully evaluated No-

len's cervix. Nolen's cervix was found to be neither

dilated nor thinned. The laboratory results from the

culture were negative. Dr. Zann concluded that No-

len's lower uterine segment was consistent with what

he expected from a normal pregnancy in this circum-

stance. Dr. Zann performed an ultrasound to evaluate

each of the three fetal heart rates. He did not order

further testing. Dr. Zann concluded that Nolen was not dilated and

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373 F.3d 1151, 17 Fla. L. Weekly Fed. C 677 (Cite as: 373 F.3d 1151)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

that she had only one conclusive episodic contrac-

tion, which occurred at 5:32 p.m. Another potential

episodic contraction occurred at 6:04 p.m., but it was

inconclusive because Nolen was being repositioned

when the fetal monitor registered that movement.

Satisfied that Nolen had been adequately diagnosed

and stabilized, Dr. Zann discharged her from the

Hospital at 6:48 p.m. He ordered Nolen to keep her

scheduled appointment with her perinatologist, Dr.

Scott, the next morning. After leaving the Hospital, Nolen's condition changed

for the worse. She testified at deposition that she be-

gan cramping after leaving the Hospital. She made no

effort to contact Dr. Zann or the Hospital after this

change in condition. When she reached Dr. Scott's office the next morn-

ing, Nolen fully described the events of the previous

day. Nolen also told Dr. Scott of the change in condi-

tion she experienced after leaving the Hospital. Dr.

Scott examined Nolen and concluded that she may

have been entering pre-term labor on that day be-

cause the partial effacement and dilation of her cer-

vix. Dr. Scott determined that Nolen could not have

been entering pre-term labor on the previous day

when she was at the Hospital in the care of Dr. Zann. Dr. Scott sent Nolen back to the Hospital to suppress

her pre-term labor. Nolen stayed there until May 7,

2000, when she was transferred to Broward General

Hospital because it had a superior neonatal care unit.

Nolen went into pre-term labor. Her first baby was

stillborn, and her other two babies were born alive.

Neither of her two live births survived past May 24,

2000, however. Nolen filed a complaint under 42 U.S.C. section

1395dd on May 3, 2002, and alleged that the Hospital

(1) did not provide her with an adequate screening

examination, (2) did not stabilize her labor condition

adequately, and (3) discharged her in violation of the

EMTALA. Nolen received leave from the district

court to amend her complaint to include six counts of

medical malpractice under Florida law. Dr. Zann,

Reinsvold, and Slavicek, another nurse from the

Hospital, were added as defendants on those claims.

The district court declined to exercise jurisdiction

over all but one of the state law claims. Both parties filed cross-motions for summary judg-

ment after the close of discovery. The district court

granted the motions made by the Hospital and the

other defendants on all three counts under the EM-

TALA and the remaining state law claim. Nolen does

not address the grant of summary judgment by the

district court on her state law claim in her brief be-

fore this Court, so any arguments on that claim are

waived. Farrow v. West, 320 F.3d 1235, 1242 (11th

Cir.2003); Kelliher v. Veneman, 313 F.3d 1270, 1274

n. 3 (11th Cir.2002); Greenbriar, Ltd. v. City of Ala-

baster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989).

II. STANDARD OF REVIEW Summary judgment is only appropriate if “the plead-

ings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any,

show that there is no genuine issue as to any materi-

al*1154 fact and that the moving party is entitled to a

judgment as a matter of law.” Fed.R.Civ.P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,

106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quot-

ing Fed.R.Civ.P. 56(c)). Summary judgment should

be granted when, after an adequate time for discov-

ery, a party fails to make a showing sufficient to es-

tablish the existence of an essential element of that

party's case. Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

“We review the district court's rulings on motion for

summary judgment de novo, applying the same legal

standards that bound the district court.” Carter v.

Galloway, 352 F.3d 1346, 1348 (11th Cir.2003).

III. ANALYSIS Nolen asserts two grounds on which the district court

erred in holding that the Hospital gave her an appro-

priate screening when she entered as an outpatient on

May 4, 2000. First, she contends that the Hospital did

not have a standard written screening procedure or,

alternatively, that the Hospital did not follow its

screening procedure, either of which, she contends,

violated the EMTALA. Second, Nolen argues that the

district court should not have considered the evidence

submitted by the Hospital that proved Nolen was not,

in fact, in pre-term labor when she was examined at

the Hospital on May 4, 2000, by her personal physi-

cian, Dr. Zann. Each of these arguments is addressed

and rejected below. [1][2][3] As we have previously stated,

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373 F.3d 1151, 17 Fla. L. Weekly Fed. C 677 (Cite as: 373 F.3d 1151)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

In 1986, Congress enacted EMTALA in response

to widely publicized reports of emergency care

providers transferring indigent patients from one

hospital to the next while the patients' emergency

medical conditions worsened. EMTALA was de-

signed specifically to address this important socie-

tal concern; it was not intended to be a federal

malpractice statute. Under EMTALA, hospital

emergency rooms are subject to two principal obli-

gations, commonly referred to as the appropriate

medical screening requirement and the stabilization

requirement…. The appropriate medical screening

requirement obligates hospital emergency rooms to

provide an appropriate medical screening to any

individual seeking treatment in order to determine

whether the individual has an emergency medical

condition…. If an emergency medical condition ex-

ists, the hospital is required to provide stabilization

treatment before transferring the individual. Harry v. Marchant, 291 F.3d 767, 770 (11th

Cir.2002) (en banc). [4] First, we address Nolen's contention that the Hos-

pital was required to have a written screening proce-

dure. A similar argument was rejected by the Eighth

Circuit. Summers v. Baptist Med. Ctr. Arkadelphia,

91 F.3d 1132, 1140 (8th Cir.1996) (en banc). The

Eighth Circuit held that a hospital with emergency

screening procedures that were unwritten, in whole or

in part, did not violate the EMTALA. Id. (stating that

“the hospital did have a screening procedure, even if

unwritten in part, and the statute makes no additional

requirement”). Nolen's argument that the Hospital

was required to have a written screening procedure

also fails because a written procedure is not required

by the terms of section 1395dd(a). [5] Nolen alternatively contends that the Hospital did

not follow its policies for screening patients in pre-

term labor situations. Nolen relies on several policies

propagated by the Hospital to create doubt about the

quality of screening she received. As long as the

Hospital screened *1155 Nolen in a manner con-

sistent with the screening that any other patient in the

care of a private physician would have received, there

can be no liability under the EMTALA. The Hospital

presented undisputed evidence that Reinsvold per-

formed exactly the type of screening that would have

been given to any other outpatient in Nolen's position

according to the only policy that applied to Nolen's

case. Because the Hospital met its initial burden of

disproving the applicability of the EMTALA, the

burden shifts back to Nolen to show the existence of

a genuine issue of material fact. Hammer v. Slater, 20

F.3d 1137, 1141 (11th Cir.1994). Nolen did not meet

that burden. [6] The undisputed record shows that Nolen, if any-

thing, received superior care from the Hospital.

Reinsvold promptly summoned Dr. Zann to perform

an in-person exam of Nolen, which only 6 percent of

similarly situated patients receive. The uncontrovert-

ed evidence showed that 94 percent of other patients

who came to the Hospital for a labor check did not

receive as extensive a screening as the one Nolen

received. As the Fourth Circuit has explained, a hos-

pital has every right to tailor its screening procedures

to a patient to account for her condition, stated symp-

toms, and the determinations made by her personal

physician. Baber v. Hosp. Corp. of Am., 977 F.2d

872, 879 n. 6 (4th Cir.1992); see also Baker v. Ad-

ventist Health, Inc., 260 F.3d 987, 995 (9th Cir.2001)

(“Hospitals are not required to provide patients pre-

senting different symptoms with identical screen-

ings.”). Nolen's treatment was provided primarily by

her private physician, who was in a better position to

provide care beyond the screening mandated by the

EMTALA. So long as the Hospital gave to Nolen the

same quality screening that it would have given a

similarly situated outpatient, there is no violation of

the EMTALA. Harry, 291 F.3d at 770. Second, we turn to Nolen's argument that the district

court impermissibly weighed evidence and usurped

the function of a jury. We disagree. The Hospital

proffered evidence from experts and the principals

that confirmed that Nolen received an adequate

screening. It was Nolen's responsibility then to pre-

sent evidence of a genuine issue of material fact,

which would have precluded summary judgment.

Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-54.

Nolen did not satisfy that burden, and the district

court properly granted summary judgment. Baber is also instructive on this point. The Fourth

Circuit held in Baber that one cursory affidavit from

a physician was insufficient to create a genuine issue

of material fact as to the adequacy of the screening

that the patient received. 977 F.2d at 881-82. Nolen

has failed to present even a single affidavit of a phy-

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373 F.3d 1151, 17 Fla. L. Weekly Fed. C 677 (Cite as: 373 F.3d 1151)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

sician to dispute the adequacy of the screening pro-

vided by the Hospital. Accordingly, the summary judgment entered by the

district court is AFFIRMED. C.A.11 (Fla.),2004. Nolen v. Boca Raton Community Hosp., Inc. 373 F.3d 1151, 17 Fla. L. Weekly Fed. C 677 END OF DOCUMENT

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