USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 95-1167
GLORIA IVETTE CORREA, a/k/a
GLORIA IVETTE CORREA GONZALEZ, ET AL.,
Plaintiffs, Appellees,
v.
HOSPITAL SAN FRANCISCO,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_________________________
Igor J. Dominguez on brief for appellant.
_________________
Kevin G. Little and Law Offices of David Efron on brief for
________________ __________________________
appellees.
_________________________
October 31, 1995
_________________________
SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
______________
interpret, for the first time, the Emergency Medical Treatment
and Active Labor Act (EMTALA), 42 U.S.C. 1395dd (1988 & Supp. V
1993).1 After scrutinizing the record and dovetailing the facts
with the statutory scheme, we affirm a $700,000 jury verdict in
favor of the heirs and survivors of Carmen Gloria Gonzalez
Figueroa (Ms. Gonzalez) against defendant-appellant Hospital San
Francisco (HSF or the Hospital).
I. THE FACTS
I. THE FACTS
We are guided through the thicket of conflicting
testimony and the chasmal gaps in the direct evidence by the rule
that, when the losing party protests the sufficiency of the
evidence, the court of appeals must take both the facts and the
reasonable inferences therefrom in the light most hospitable to
the jury's verdict. See Sanchez v. Puerto Rico Oil Co., 37 F.3d
___ _______ ___________________
712, 716 (1st Cir. 1994); Wagenmann v. Adams, 829 F.2d 196, 200
_________ _____
(1st Cir. 1987).
According to her son, Angel Correa, Ms. Gonzalez, a
sixty-five-year-old widow, awoke on the morning of September 6,
1991 "feeling real bad," and experiencing "chills, cold sweat,
dizziness, [and] chest pains." She requested that Angel take her
to the emergency room at HSF (where she had been treated
previously). She arrived there no later than 1:00 p.m.
____________________
1In Wilson v. Atlanticare Med. Ctr., 868 F.2d 34 (1st Cir.
______ ______________________
1989), the plaintiff asked us to consider whether a state statute
prescribing a medical malpractice claims procedure applied to
suits under EMTALA. See id. at 35. We refused, however, because
___ ___
the plaintiff had not preserved the issue. See id. at 35-36.
___ ___
2
The evidence is conflicted as to whom she saw and what
that person was told about her condition. Angel testified that
he implored the receptionist to have someone "take care of my
mother, because she feels sick and has chest pains." The
Hospital disagrees, maintaining that its personnel were told only
that Ms. Gonzalez felt dizzy and nauseated. In any event, a
Hospital employee assigned the patient a number (forty-seven),
told her to bide her time, and checked her medical insurance
card.2 After waiting approximately one hour, Angel called his
sister, Esther Correa, and asked her to relieve him. Esther
arrived some fifteen minutes later and Angel left the premises.
At that very moment (roughly 2:15 p.m.), he heard an attendant
calling patient number twenty-four for treatment.
Now accompanied by her daughter, Ms. Gonzalez
maintained her unproductive vigil for an additional forty-five to
seventy-five minutes. The Hospital staff continued blithely to
ignore her. Weary of waiting, the two women drove to the office
of Dr. Acacia Rojas Davis (Dr. Rojas), the director of Hospmed,
arriving there between 3:00 and 3:30 p.m. According to Dr.
Rojas, a nurse called from HSF to advise her that the patient
would be coming to Hospmed for treatment. Dr. Rojas said that
this conversation probably occurred earlier that day (perhaps
around 1:00 p.m.), a datum suggesting that HSF tried to shunt Ms.
____________________
2Ms. Gonzalez's health insurance plan required her to seek
routine treatment at Hospmed (a local clinic) during its business
hours, but allowed her to see any appropriate health-care
provider in case of an emergency.
3
Gonzalez to Hospmed as soon as it scrutinized her insurance card.
Ms. Gonzalez informed Dr. Rojas that she was nauseated
and had taken a double dose of her high blood pressure
medication. Her blood pressure was very low (90/60), and, when
she began vomiting, the physician immediately started intravenous
infusions of fluids. She also dispensed medicine to control the
emesis. Despite these ministrations, Ms. Gonzalez's condition
steadily deteriorated. Dr. Rojas had to resuscitate her soon
after her arrival. The doctor then attempted to transfer her to
the Hato Rey Community Hospital, but could not commandeer an
ambulance. As Dr. Rojas began preparations to transport Ms.
Gonzalez by van, the patient expired. Her death, which occurred
at around 4:30 p.m., was attributed to hypovolemic shock.
II. THE PROCEEDINGS BELOW
II. THE PROCEEDINGS BELOW
The plaintiffs Ms. Gonzalez's three adult children
and four of her grandchildren (the progeny of her late son, Felix
Correa, who had predeceased her) brought suit against the
Hospital in the United States District Court for the District of
Puerto Rico.3 They alleged two violations of EMTALA
inappropriate screening and improper transfer and a pendent
claim of medical malpractice under local law. Following a trial,
the plaintiffs' case went to the jury on the two theories of
____________________
3Although their complaint is not a model of clarity, the
plaintiffs apparently sued in two capacities. As Ms. Gonzalez's
heirs, they asserted a representative-capacity claim for her
pain, suffering, and related damages. As individuals, they
simultaneously asserted claims for their own pain, suffering,
mental anguish, and kindred losses.
4
EMTALA liability.4 The jury returned a series of special written
findings, Fed. R. Civ. P. 49(a), assessed $200,000 in damages on
the decedent's account (payable to the heirs), and assessed
$500,000 in damages for the pain, suffering, and mental anguish
experienced by the survivors $100,000 apiece for the three
children (Angel, Esther, and Gloria), and $50,000 apiece for the
four grandchildren (Glendalis, Glorimar, Angelis, and Sarai).
The district court denied the Hospital's post-trial motions for
judgment as a matter of law, a new trial, and remission of
damages. This appeal ensued.
III. THE STATUTORY SCHEME
III. THE STATUTORY SCHEME
We delineate EMTALA's requirements in order to give
definition to the statutory cause of action and place some of its
nuances into perspective.
As health-care costs spiralled upward and third-party
payments assumed increased importance, Congress became concerned
"about the increasing number of reports that hospital emergency
rooms are refusing to accept or treat patients with emergency
conditions if the patient does not have medical insurance." H.R.
Rep. No. 241(I), 99th Cong., 1st Sess. 27 (1986), reprinted in
_________ __
1986 U.S.C.C.A.N. 42, 605. Congress enacted EMTALA to allay this
concern. Needing a carrot to make health-care providers more
receptive to the stick, Congress simultaneously amended the
Social Security Act, conditioning hospitals' continued
____________________
4The district court dismissed the malpractice claim. That
ruling is not before us on appeal.
5
participation in the federal Medicare program a lucrative
source of institutional revenue on acceptance of the duties
imposed by the new law. See 42 U.S.C. 1395dd(a-b), (e)(2); see
___ ___
also Abercrombie v. Osteopathic Hosp. Founders Ass'n, 950 F.2d
____ ___________ _________________________________
676, 680 (10th Cir. 1991); Brooker v. Desert Hosp. Corp., 947
_______ ___________________
F.2d 412, 414 (9th Cir. 1991).
We have set out the portions of the statute that are
most germane to this appeal in an appendix. For purposes of
patients such as Ms. Gonzalez, EMTALA has two linchpin
provisions. First, it requires that a participating hospital
afford an appropriate medical screening to all persons who come
to its emergency room seeking medical assistance. See 42 U.S.C.
___
1395dd(a). Second, it requires that, if an emergency medical
condition exists, the participating hospital must render the
services that are necessary to stabilize the patient's condition,
see id. 1395dd(b)(1)(A), unless transferring the patient to
___ ___
another facility is medically indicated and can be accomplished
with relative safety, see id. 1395dd(b)(1)(B), (c)(1). To add
___ ___
bite to its provisions, EMTALA establishes monetary penalties for
noncompliance, see id. 1395dd(d)(1), and authorizes private
___ ___
rights of action against those who transgress its mandates, see
___
id. 1395dd(d)(2).
___
To establish an EMTALA violation, a plaintiff must show
that (1) the hospital is a participating hospital, covered by
EMTALA, that operates an emergency department (or an equivalent
treatment facility); (2) the patient arrived at the facility
6
seeking treatment; and (3) the hospital either (a) did not afford
the patient an appropriate screening in order to determine if she
had an emergency medical condition, or (b) bade farewell to the
patient (whether by turning her away, discharging her, or
improvidently transferring her) without first stabilizing the
emergency medical condition. See Miller v. Medical Ctr. of S.W.
___ ______ ____________________
La., 22 F.3d 626, 628 (5th Cir. 1994); Stevison v. Enid Health
___ ________ ___________
Sys., Inc., 920 F.2d 710, 712 (10th Cir. 1990).
__________
HSF attempts to read into section 1395dd(a) an
additional requirement: that the patient show that she in fact
suffered from an emergency medical condition when she arrived at
the emergency room. But EMTALA imposes no such requirement. The
statute by its terms directs a participating hospital to provide
an appropriate screening to all who come to its emergency
department. Thus, to prove a violation of EMTALA's screening
provisions, a plaintiff need not prove that she actually suffered
from an emergency medical condition when she first came through
the portals of the defendant's facility; the failure
appropriately to screen, by itself, is sufficient to ground
liability as long as the other elements of the cause of action
are met.5
____________________
5To be sure, some courts have suggested in dictum that a
plaintiff must show, as an ingredient of an inappropriate
screening claim, that she suffered from an emergency medical
condition when she arrived at the hospital. See, e.g., Miller,
___ ____ ______
22 F.3d at 630 n.8; Ruiz v. Kepler, 832 F. Supp. 1444, 1447
____ ______
(D.N.M. 1993); Huckaby v. East Ala. Med. Ctr., 830 F. Supp. 1399,
_______ ___________________
1402 (M.D. Ala. 1993). This suggestion finds no purchase in the
statute's text, and we reject it. We note, however, that while
this distinction may have implications for civil penalties, which
7
IV. ANALYSIS
IV. ANALYSIS
HSF assigns error in no fewer than eight iterations.
It debunks the sufficiency of the evidence in five respects. It
then hypothesizes that, even if the evidence on these points can
withstand an instructed verdict, it is so anemic that the
district court should have repudiated the jury's findings on
liability and ordered a new trial. The climax of the Hospital's
asseverational array denigrates the award of damages in two
respects. After careful perscrutation of both the record and the
rich variety of challenges marshalled by HSF, we affirm.
A. Sufficiency of the Evidence.
A. Sufficiency of the Evidence.
___________________________
The Hospital's multi-pronged attack calls into play
varying standards of appellate review. The first five claims of
error all involve the sufficiency of the evidence, and, hence,
are reviewed under a familiar set of rules.
The district court's denial of a motion for judgment as
a matter of law poses a question of law and, therefore, this
court's review of such a ruling is plenary. See Gibson v. City
___ ______ ____
of Cranston, 37 F.3d 731, 735 (1st Cir. 1994). In addressing
___________
such issues on appeal, we must approach the evidence from a coign
____________________
are imposable irrespective of resulting harm, see 42 U.S.C.
___
1395dd(d)(1)(A), the statutory damage remedy requires a showing
of "personal harm as a direct result of a participating
hospital's violation of [EMTALA]," id. 1395dd(d)(2)(A). It is
___
difficult to imagine a case in which a patient who does not
present an emergency medical condition will meet the statute's
causation requirement or fall within the category of those whom
it intends to protect. In all events, we can reserve such
questions for another day, because the plaintiffs fairly allege
that Ms. Gonzalez did present an emergency medical condition, the
jury so found, and the evidence to that effect was ample.
8
of vantage identical to that employed by the district court in
the first instance. See Rolon-Alvarado v. Municipality of San
___ ______________ ____________________
Juan, 1 F.3d 74, 77 (1st Cir. 1993). This dictates that we take
____
the record in the light most flattering to the nonmoving party,
without probing the veracity of the witnesses, resolving
conflicts in the testimony, or assaying the weight of the
evidence. See Gibson, 37 F.3d at 735; Wagenmann, 829 F.2d at
___ ______ _________
200. We "may reverse the denial of such a motion only if
reasonable persons could not have reached the conclusion that the
jury embraced." Sanchez, 37 F.3d at 716.
_______
1. EMTALA Coverage. The Hospital starts its series of
1. EMTALA Coverage.
_______________
sufficiency sorties by solemnly stating that the survivors
stumbled in failing to show that it is subject to EMTALA's
suzerainty. We need not tarry. HSF tacitly concedes that, in
general, federal courts have jurisdiction over EMTALA claims, see
___
Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th
________ ________________________
Cir. 1990), but argues that the plaintiffs did not prove a
requisite predicate fact: that HSF had accepted the federal
government's carrot and agreed to come under EMTALA.6 This
____________________
6In its brief, the Hospital treats this issue as implicating
the court's subject matter jurisdiction. The Hospital, of
course, could have raised the question in that form by a pretrial
motion, see Fed. R. Civ. P. 12(b)(1), but refrained. Since the
___
defendant did not so move, and since the disputed fact is one
that has the capacity not only to oust the federal court of
jurisdiction but also to defeat the claim on the merits (because
the same fact that is needed to support jurisdiction must also be
demonstrated to the factfinder in order for the plaintiff to
prevail), an appellate court should evaluate the jury's factual
finding under a sufficiency-of-the-evidence test. Cf. United
___ ______
States v. Victoria-Peguero, 920 F.2d 77, 87 (1st Cir. 1990)
______ ________________
(undertaking sufficiency-of-the-evidence review following a jury
9
argument has the shrill ring of desperation.
The plaintiffs introduced into evidence, without
objection, HSF's policy statement outlining for its employees and
associates how the Hospital intended to ensure compliance with
EMTALA in its emergency room. The Hospital solidified this
proffer when, during the defense case, its health services
administrator testified that he had dutifully instructed his
staff regarding the fine points of EMTALA compliance. Evidence
admitted without limitation can be used by the jury on any issue
in the case. See, e.g., United States v. Castro-Lara, 970 F.2d
___ ____ _____________ ___________
976, 981 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993).
_____ ______
Here, the policy statement and the executive's testimony, without
more, formed a sturdy basis on which the jury could build an
eminently reasonable inference that the Hospital considered
itself to be and was covered by EMTALA.
HSF strives to topple this edifice, contending that the
policy statement constituted inadmissible hearsay and that the
plaintiffs did not lay a proper foundation for the document's
introduction. But in the absence of plain error and we discern
none here these objections, voiced for the first time on
appeal, are deemed to have been waived. See Suarez-Matos v.
___ ____________
Ashford Presbyterian Community Hosp., Inc., 4 F.3d 47, 50 (1st
___________________________________________
Cir. 1993); Freeman v. Package Mach. Co., 865 F.2d 1331, 1336
_______ __________________
____________________
determination that a ship was within territorial waters, where
such a fact was both a predicate for criminal jurisdiction and an
element of the offense charged), cert. denied, 500 U.S. 932
_____ ______
(1991).
10
(1st Cir. 1988); see also Fed. R. Evid. 103. Hence, the jury had
___ ____
a rational basis on which to conclude that HSF is among the
ninety-nine percent of American hospitals covered by EMTALA.
2. Failure to Provide Appropriate Screening. Three of
2. Failure to Provide Appropriate Screening.
________________________________________
the Hospital's remaining four sufficiency-of-the-evidence claims
are inextricably intertwined. These three claims are designed to
illustrate the purported lack of any foundation for a finding
that HSF failed to provide Ms. Gonzalez with an appropriate
screening upon her appearance at the emergency room. The final
sufficiency claim is closely related to the first three
initiatives. In it, HSF posits that, as long as a hospital is
not motivated by crass economic considerations, any failure
appropriately to screen does not run afoul of EMTALA. These
importunings lack merit.7
a.
a.
__
We begin this analytic segment by laying a straw man to
rest. The Hospital asserts that it had no obligation to screen
because Ms. Gonzalez did not have an emergency medical condition
when she reported to its facility. This theory of defense is
doubly flawed. For one thing, EMTALA requires participating
hospitals to provide appropriate screening to all who enter the
hospitals' emergency departments, whether or not they are in the
throes of a medical emergency when they arrive. See supra note 5
___ _____
____________________
7Because we uphold the jury's finding that HSF violated
EMTALA when it failed to afford Ms. Gonzalez an appropriate
screening, we need not comment upon the jury's finding that HSF
also violated EMTALA by improperly transferring Ms. Gonzalez
before her condition had stabilized.
11
and accompanying text. For another thing, the record does not
compel a conclusion that the decedent's emergency condition
developed only after she consulted Dr. Rojas.
Angel Correa testified that he told HSF's receptionist
that his mother was experiencing chest pains, and HSF concedes
that a patient of Ms. Gonzalez's age who suffered from chest
pains would be regarded as having an emergency medical condition.
Yet the Hospital asks us to ignore this evidence in deference to
Dr. Rojas's testimony that Ms. Gonzalez did not develop chest
pains until some time after she arrived at Hospmed. There is no
principled way in which we can accommodate HSF's request.
Credibility choices are generally for the jury, not for the court
of appeals. See Cook v. Rhode Island Dep't of Mental Health,
___ ____ ______________________________________
Retardation, and Hosps., 10 F.3d 17, 21 (1st Cir. 1993). What is
_______________________
more, Dr. Rojas's testimony does not rule out a finding that Ms.
Gonzalez exhibited an emergency medical condition when she
arrived at HSF. The chest pains might well have spurted and
later subsided, or, even if Ms. Gonzalez only complained of
nausea and dizziness, that symptomatology (as Dr. Rojas
explained) might well herald the onset of an emergency medical
condition in the case of a hypertensive diabetic (such as Ms.
Gonzalez).
b.
b.
__
We next assess the Hospital's insistence that it gave
Ms. Gonzalez the same (suitable) screening provided to all
patients. EMTALA requires an appropriate medical screening, but
12
does not explain what constitutes one. The adjectival phrase is
not self-defining. See Cleland v. Bronson Health Care Group,
___ _______ ___________________________
Inc., 917 F.2d 266, 271 (6th Cir. 1990) ("`Appropriate' is one of
____
the most wonderful weasel words in the dictionary, and a great
aid to the resolution of disputed issues in the drafting of
legislation. Who, after all, can be found to stand up for
`inappropriate' treatment or actions of any sort?"). In the last
analysis, appropriateness, like nature, is "a mutable cloud which
is always and never the same." Ralph Waldo Emerson, Essays:
_______
First Series (1841).
____________
Be that as it may, the courts have achieved a consensus
on a method of assessing the appropriateness of a medical
examination in the EMTALA context. A hospital fulfills its
statutory duty to screen patients in its emergency room if it
provides for a screening examination 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. See Baber v. Hospital Corp. of Am., 977 F.2d 872,
___ _____ ______________________
879 (4th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933
________ ___________________________
F.2d 1037, 1041 (D.C. Cir. 1991). The essence of this
requirement is that there be some screening procedure, and that
it be administered even-handedly.
We add a caveat: EMTALA does not create a cause of
action for medical malpractice. See Gatewood, 933 F.2d at 1041.
___ ________
Therefore, a refusal to follow regular screening procedures in a
13
particular instance contravenes the statute, see Baber, 977 F.2d
___ _____
at 879, but faulty screening, in a particular case, as opposed to
disparate screening or refusing to screen at all, does not
contravene the statute. See Brooks v. Maryland Gen. Hosp., 996
___ ______ ____________________
F.2d 708, 711 (4th Cir. 1993). In this case, HSF's delay in
attending to the patient was so egregious and lacking in
justification as to amount to an effective denial of a screening
examination. Thus, we need not decide whether mere negligence in
failing to expedite screening would itself violate the federal
statute.
To illustrate our point, it should be recalled that HSF
prescribed internal procedures which set the parameters for an
appropriate screening. HSF's rules, as explicated in its policy
statement, required its emergency room personnel, inter alia,
_____ ____
promptly to take the vital signs of every patient who visited the
facility, to make a written record of all such visits, to treat
patients suffering from chest pains as critical cases, and to
refer all critical cases to an in-house physician immediately.
From the evidence adduced at trial, especially Angel Correa's
recollections and the Hospital's utter inability to produce any
___
records anent Ms. Gonzalez's visit, the jury reasonably could
have inferred that the Hospital did not measure up to the
parameters it had established, and that the decedent was denied
the screening (monitoring of vital signs, compilation of a
written chart, immediate referral to an in-house physician) that
HSF customarily afforded to persons complaining of chest pains.
14
That ends the matter. Bearing in mind that, under
EMTALA 1395dd(a), the same screening examination must be made
available to all similarly situated patients, see Brooks, 996
___ ______
F.2d at 710-11; Baber, 977 F.2d at 881, the jury's finding that
_____
HSF denied Ms. Gonzalez an appropriate screening examination is
unimpugnable.
c.
c.
__
In an allied vein, the Hospital contends that it
neither denied Ms. Gonzalez an initial screening nor refused her
essential treatment. Its point is that it gave the patient a
number, and would have ministered to her had she waited. This
contention is spurious.
First, according to Dr. Rojas, HSF referred Ms.
Gonzalez to Hospmed. If the jury believed the physician's
testimony and we note, as an aside, that HSF called Dr. Rojas
as its witness it could well have found that HSF never intended
to treat the decedent, or, at the least, was itself responsible
for truncating her wait. Second, we think that regardless of
motive, a complete failure to attend a patient who presents a
condition that practically everyone knows may indicate an
immediate and acute threat to life can constitute a denial of an
appropriate medical screening examination under section
1395dd(a). Much depends upon circumstances; we recognize that an
emergency room cannot serve everyone simultaneously. But we
agree with the court below that the jury could rationally
conclude, absent any explanation or mitigating circumstances,
15
that the Hospital's inaction here amounted to a deliberate denial
of screening. EMTALA should be read to proscribe both actual and
constructive dumping of patients.
d.
d.
__
HSF maintains that depriving a patient of an
appropriate screening, in and of itself, will not support an
EMTALA claim. It suggests that a hospital can be liable for
transgressing the statute only if economic concerns, such as the
suspicion that the patient will be unable adequately to pay her
way, drive the hospital's actions. Since Ms. Gonzalez had
insurance that permitted her hospital visit if an emergency
existed, its thesis continues, its handling of her case could not
have been motivated by concerns about her ability to pay.8 As
phrased, this contention raises a question of law, engendering de
novo review. See Foster Miller, Inc. v. Babcock & Wilcox Can.,
___ ___________________ ______________________
46 F.3d 138, 147 (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. See, e.g., Power v. Arlington Hosp. Ass'n, 42 F.3d 851,
___ ____ _____ _____________________
857 (4th Cir. 1994); Collins v. DePaul Hosp., 963 F.2d 303, 308
_______ ____________
____________________
8In all events, this argument is an oversimplification.
Especially in the health-care field, all insurance plans are not
created equal. Given the bewildering array of coverage
conditions, deductibles, reimbursement rates, and the like,
sophisticated but esurient providers have ample provocation to
discriminate not only between insured and uninsured patients but
also among patients who are insured under different plans.
16
(10th Cir. 1992); Gatewood, 933 F.2d at 1040.9 We think that
________
these cases are correctly decided, and that EMTALA does not
impose a motive requirement. The decision on which the Hospital
relies, Nichols v. Estabrook, 741 F. Supp. 325 (D.N.H. 1989), did
_______ _________
not involve failure to screen, but merely a misdiagnosis. We
hold, therefore, that EMTALA, by its terms, covers all patients
who come to a hospital's emergency department, and requires that
they be appropriately screened, regardless of insurance status or
ability to pay. See 42 U.S.C. 1395dd(a).
___
B. New Trial.
B. New Trial.
_________
We turn now to the Hospital's complaint that the lower
court erred in declining to honor its motion for an unconditional
new trial. Our reexamination of this ruling is extremely
circumscribed. Principally because the trial judge saw and heard
the witnesses in the raw, his refusal to uproot a jury verdict
may only be reversed for abuse of discretion. See Quinones-
___ _________
Pacheco v. American Airlines, Inc., 979 F.2d 1, 3 (1st Cir.
_______ ________________________
1992); Veranda Beach Club Ltd. Partnership v. Western Sur. Co.,
____________________________________ ________________
936 F.2d 1364, 1384 (1st Cir. 1991). This means, in effect, that
an appellate court may set aside such a ruling only if it
____________________
9In Cleland, the Sixth Circuit held, as have other courts,
_______
that a fear of nonpayment is not essential to triggering an
EMTALA claim. See 917 F.2d at 272. Cleland is different,
___ _______
however, in that the court required there to be some motive
____
whether or not economic for the disparate treatment. See id.
___ ___
Other courts have declined to follow the Sixth Circuit's lead in
this respect, see, e.g., Gatewood, 933 F.2d at 1041 n.3, and we
___ ____ ________
agree that the range of improper motives available under the
Cleland standard "is so broad as to be no limit at all, and as a
_______
practical matter amounts to not having a motive requirement."
Power, 42 F.3d at 857.
_____
17
determines that "the verdict is against the demonstrable weight
of the credible evidence or results in a blatant miscarriage of
justice." Sanchez, 37 F.3d at 717.
_______
Refined to bare essence, HSF's claim is that, even if
the plaintiffs introduced enough proof to withstand judgment as a
matter of law, the verdict defied the weight of the trustworthy
evidence. In support, the Hospital reiterates the points
previously discussed, terming the evidence asthenic as to HSF's
status under EMTALA and as to its purported violations of the
law.
We will not repastinate the ground that we ploughed
earlier in this opinion. The evidence regarding the relationship
of EMTALA to HSF, see supra Part IV(A)(1), strikes us as rather
___ _____
persuasive, especially since HSF which could have supplied a
foolproof answer from its own records offered nothing to
suggest that it did not welcome Medicare patients. As to the
other points, see supra Part IV(A)(2), the jury heard testimony
___ _____
from which it could have concluded that Ms. Gonzalez went to the
Hospital in critical condition and received only a high number
and a cold shoulder. Angel Correa's credibility emerged
relatively unscathed from cross-examination; we cannot fault the
jury either for crediting his recollection or for concluding that
the Hospital denied Ms. Gonzalez any vestige of an appropriate
screening.
To be sure, the evidence in this case is not
particularly precise. But facts at trial, as in life, do not
18
always appear in black and white. Juries and judges frequently
must distinguish between manifold shades of gray. The limited
review that we can conduct convinces us that the grays
predominate here, that the jury's finding of EMTALA liability is
within the spectrum of acceptable outcomes, and that the trial
judge did not abuse his discretion in refusing to paint over the
jury's collective judgment. No more is exigible. See Freeman,
___ _______
865 F.2d at 1333-34 ("The mere fact that a contrary verdict may
have been equally or even more easily supportable furnishes
no cognizable ground for granting a new trial. If the weight of
the evidence is not grotesquely lopsided, it is irrelevant that
the judge, were he sitting jury-waived, would likely have found
the other way.").
C. Damages.
C. Damages.
_______
On the final leg of our journey, we traverse the
Hospital's two challenges to the award of damages. In substance,
HSF maintains (a) that the plaintiffs may recover under EMTALA
only those damages stemming from the decedent's pain and
suffering, and (b) that in all events, the jury exhibited
excessive generosity. These challenges must be considered
separately for they evoke differing legal principles and
standards of review.
1. Recoverable Damages. Since questions such as
1. Recoverable Damages.
___________________
whether a statute authorizes damages in particular instances or
in favor of particular parties are quintessentially legal in
19
nature, we afford de novo review. See EEOC v. Bank of Billings,
___ ____ ________________
758 F.2d 397, 401 (9th Cir.), cert. denied, 474 U.S. 902 (1985);
_____ ______
see also Strickland v. Commissioner, Me. Dep't of Human Servs.,
___ ____ __________ ________________________________________
48 F.3d 12, 16 (1st Cir. 1995). HSF's claim that the plaintiffs
cannot recover damages under EMTALA for their own pain,
suffering, and anguish falls into this category. Undertaking de
novo review, we conclude that this claim is voiced too late and
augurs too little.
The chronology of the case speaks volumes about the
lack of timeliness. HSF first had the opportunity to assert this
defense in its answer to the plaintiffs' complaint, but did not
do so. In its submissions ancillary to both the initial
scheduling conference and the pretrial conference, see Fed. R.
___
Civ. P. 16, HSF likewise omitted any reference to the defense.
The latter omission is especially significant. The pretrial
conference is an important event in the life of a litigated case.
It is designed to assist the court in "formulati[ng] . . . the
issues, including the elimination of frivolous claims or
defenses." Fed. R. Civ. P. 16(c)(1). Along the same line, the
pretrial order is intended to shape the contours of the ensuing
trial by setting forth the legal theories upon which the parties
intend to rely. See D.P.R. Loc. R. 314.3(E). Here, HSF
___
undermined these mechanisms. It failed to assert the defense at
the pretrial conference, and, consequently, the pretrial order,
signed by all counsel and entered by the district court, made no
mention of any contention that EMTALA barred recovery for the
20
heirs' anguish and suffering.
The Hospital's neglect continued up to, and through,
the trial proper. In its trial brief, HSF enumerated only three
legal issues to be considered at trial. None of these dealt with
the question of whether persons other than patients (or those
suing in a patient's behalf) could recover damages under EMTALA.
At the close of the plaintiffs' case, HSF unsuccessfully moved
for judgment as a matter of law, see Fed. R. Civ. P. 50(a), but
___
without calling the court's attention to the alleged impropriety
of compensating the plaintiffs for their own pain and suffering.
At the close of all the evidence, the Hospital renewed its Rule
50(a) motion, but did not add any new grounds. To cinch matters,
the Hospital eschewed any objection to the trial court's
inclusion of the plaintiffs' claims for their own pain,
suffering, and mental anguish in the verdict forms and the jury
instructions. This was a waiver, pure and simple. See Fed. R.
___
Civ. P. 49(a), 51; see also Putnam Resources v. Pateman, 958 F.2d
___ ____ ________________ _______
448, 456 (1st Cir. 1992) ("Silence after instructions, including
instructions on the form of the verdict to be returned by the
jury, typically constitutes a waiver of any objections.").
Based on this somber record of inattention, we hold
that HSF forfeited the theory of defense that it now espouses.
In reaching this conclusion, we give special weight to the
Hospital's boycott of the final pretrial order. That order is
intended to "control the subsequent course of the action," and
can be modified only "to prevent manifest injustice." Fed. R.
21
Civ. P. 16(e). An appellate court should not lightly relieve a
litigant from the condign consequences of its failure to list a
theory of defense at that critical stage of the proceedings.
See, e.g., Ramirez Pomales v. Becton Dickinson Co., 839 F.2d 1, 3
___ ____ _______________ ____________________
(1st Cir. 1988) (explaining that issues not included in the final
pretrial order are generally waived). If pretrial orders are to
achieve their intended purpose, "courts and litigants must
ordinarily take them seriously." Roland M. v. Concord Sch.
__________ _____________
Comm., 910 F.2d 983, 999 (1st Cir. 1990), cert. denied, 499 U.S.
_____ _____ ______
912 (1991).
While waivers are sometimes overlooked on appeal, none
of the possible routes around HSF's waiver are passable. The
suggestion that the Rule 50(a) motion preserved the defense is
little short of jejune. A motion for judgment as a matter of law
made at the close of all the evidence preserves for review only
those grounds specified at the time, and no others. See Sanchez,
___ _______
37 F.3d at 723; Sweeney v. Westvaco Co., 926 F.2d 29, 37 (1st
_______ _____________
Cir.), cert. denied, 502 U.S. 899 (1991). By the same token, the
_____ ______
suggestion that HSF's post-trial motion for judgment
notwithstanding the verdict a motion in which HSF for the first
time made a claim that EMTALA did not authorize a recovery by the
plaintiffs for their own pain, suffering, and anguish saves the
day is equally unavailing. Indeed, this motion is a classic
example of a litigant locking the barn door long after the horse
has bolted. As the name implies, a renewed motion for judgment
as a matter of law under Fed. R. Civ. P. 50(b) is bounded by the
22
movant's earlier Rule 50(a) motion. The movant cannot use such a
motion as a vehicle to introduce a legal theory not distinctly
articulated in its close-of-evidence motion for a directed
verdict. See Sanchez, 37 F.3d at 723; Perdoni Bros., Inc. v.
___ _______ ___________________
Concrete Sys., Inc., 35 F.3d 1, 3 (1st Cir. 1994); Systemized of
___________________ _____________
New Eng., Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.
_______________ __________
1984); see also James W. Moore, 5A Moore's Federal Practice
___ ____ _________________________
50.08 (2d ed. 1994) (explaining that a motion for judgment after
the verdict under Rule 50(b) "may only be premised upon
particular grounds raised in the earlier motion made at the close
of all the evidence," and that, accordingly, "any argument
omitted from the motion made at the close of the evidence is
waived as a ground for judgment under Rule 50(b)").
The last possibility that we consider relates to the
reality that the raise-or-waive rule (like virtually all subsets
of the plain error principle) admits of an occasional exception
in the interests of justice. Thus, the court of appeals has
discretion to relieve a party from the normal consequences of
failure to proffer a defense in a timeous manner. See United
___ ______
States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)
______ ___________
(holding that "an appellate court has discretion, in an
exceptional case, to reach virgin issues"); accord Singleton v.
______ _________
Wulff, 428 U.S. 106, 121 (1976); United States v. Krynicki, 689
_____ _____________ ________
F.2d 289, 291-92 (1st Cir. 1982). But the exceptions are few and
far between, and appellate discretion should not be affirmatively
exercised unless error is plain and the equities heavily
23
preponderate in favor of correcting it. To meet this benchmark,
the omitted argument ordinarily will have to be "highly
persuasive," and declining to reach it will have to portend "a
miscarriage of justice." Krynicki, 689 F.2d at 292. Taking into
________
account the dimensions of this obstacle, we discern no compelling
basis for invoking this court's discretion.
EMTALA looks to state law, broadly defined to include
Puerto Rico law, see 42 U.S.C. 410(h), 1395x(x), anent the
___
availability of damages. It contains the following instruction:
Any individual who suffers personal harm as a
direct result of a participating hospital's
violation of a requirement of this section
may, in a civil action against the
participating hospital, obtain those damages
available for personal injury under the law
of the State in which the hospital is located
. . . .
42 U.S.C. 1395dd(d)(2). HSF's argument in effect proposes that
we construe the words "individual" and "direct" as denoting the
patient herself, and no one else. But this is only one of two
possible constructions of the statute. It is equally open to
read the law as permitting an individual who has a special
relationship with another say, a wife deprived of consortium
or, as here, a bereaved relative to sue when she is harmed in
direct consequence of an EMTALA violation inflicted upon such
other. When death results, this reading would naturally extend
the statutory prerogative to individuals who are eligible to
bring survivors' actions under local law. See, e.g., Lane v.
___ ____ ____
Calhoun-Liberty County Hosp. Ass'n, Inc., 846 F. Supp. 1543, 1553
________________________________________
(N.D. Fla. 1994) (permitting claimants to recover those damages
24
available to survivors under Florida law); Griffith v. Mount
________ _____
Carmel Med. Ctr., 842 F. Supp. 1359, 1365 (D. Kan. 1994)
_________________
(affirming award of damages to wife and children of a decedent).
Since both readings are superficially plausible, we
cannot say it was plain error for the lower court, in the absence
of any timely objection, to interpret the statute generously,
thus providing remediation for the decedent's heirs comparable to
that which they would ordinarily receive under local law. See
___
Widow of Delgado v. Boston Ins. Co., 101 P.R. Dec. 598, 599-60 (1
________________ _______________
Official Translation 824, 825) (1973) (explaining that the heirs
of a person who died through another's negligence have claims
both for their own suffering and the suffering of the decedent).
2. Excessiveness. HSF's final storming of the
2. Excessiveness.
_____________
barricades consists of a frontal attack on the amount of the
jury's award and a flanking attack on Judge Perez-Gimenez's
decision not to trim it. Both determinations are reviewable
under an abuse-of-discretion rubric. See, e.g., Segal v. Gilbert
___ ____ _____ _______
Color Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984).
________________
This aspect of the case centers around the size of the
aggregate damage award. Excessiveness, like beauty, is often in
the eye of the beholder. Accordingly, the case law instructs
that a damage award must endure unless it is "grossly excessive,
inordinate, shocking to the conscience of the court, or so high
that it would be a denial of justice to permit it to stand." Id.
___
at 80-81 (quoting Grunenthal v. Long Island R.R. Co., 393 U.S.
__________ _____________________
156, 159 & n.4 (1968); internal quotation marks omitted). An
25
appellate court's normal disinclination to second-guess a jury's
evaluation of the proper amount of damages is magnified where, as
here, the damages entail a monetary valuation of intangible
losses, and the trial judge, having seen and heard the witnesses
at first hand, accepts the jury's appraisal. See Ruiz v.
___ ____
Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).
__________________
Measured by this standard, the verdicts in favor of the
survivors are beyond reproach. Puerto Rico law permits certain
close relatives to bring suits of this type without requiring a
showing of physical injury or economic loss. See P.R. Laws Ann.
___
tit. 31, 5141 (1990); see also LaForest v. Autoridad de Las
___ ____ ________ _________________
Fuentes Fluviales, 536 F.2d 443, 444-45 (1st Cir. 1976) (applying
_________________
Puerto Rico law and allowing wrongful death action by the
decedent's parents and siblings); Burke v. Compagnie Nationale
_____ ____________________
Air France, 699 F. Supp. 1016, 1018 (D.P.R. 1988) (explaining
___________
that, under Puerto Rico's Civil Code, "mental suffering is
generally just as compensable as physical harm").
Here, the plaintiffs presented both lay testimony and
expert opinion evidence regarding their pain, suffering, and
mental anguish (past, present, and future). The testimony
indicated that the decedent was a matriarchal figure who
functioned as the hub of the family circle. Her son, Angel,
lived with her; her two daughters, Gloria and Esther, resided
nearby; her deceased son's four children who lost their father
a mere five months before their grandmother perished dwelt in
her home for much of their lives. The plaintiffs' expert
26
testified that all three of Ms. Gonzalez's children suffered
depression in the wake of their mother's death; and that the four
grandchildren experienced sadness, suffering and the like that
would take up to five years to abate.
At trial, HSF neither rebutted this testimony in kind
nor effectively impeached it. On appeal, HSF sends up a smoke
screen, resorting to highly questionable practices. Citing
authority out of context, and neglecting to insert ellipses to
signify textual omissions its citation of Ruiz, 929 F.2d at 34,
____
as "authority" for a proposition exactly the opposite of what the
case holds is a prime example HSF strains to carry the heavy
burden inherent in challenging a jury's award of damages for
noneconomic loss. We find its argument to be both disingenuous
and unpersuasive.
Objectively considered, the record easily supports the
jury's assessment of damages in favor of the offspring. It is
hard to doubt that the plaintiffs suffered when the woman
described by one witness as the trunk of the family tree was cut
down. The open question involves the difficult chore of
translating their pain, suffering, and anguish into dollars.
This is a matter largely within the jury's ken. See id. Taking
___ ___
into account the expert's testimony and the evidence of the
close-knit family structure, the sums awarded do not shock or
even vellicate our collective conscience.
This leaves the $200,000 awarded to the heirs on
account of Ms. Gonzalez's pain and suffering. Though generous,
27
the jury's assessment does not outstrip the bounds of reason.
Due to the Hospital's failure to provide even the most
rudimentary screening, Ms. Gonzalez spent the few remaining hours
of her life in agony, beset by nausea, dizziness, and chest
pains. It is hard to imagine let alone to quantify in dollars
the sheer terror that she must have felt while waiting for
medical attention that never came.
Although HSF mounts a series of arguments crafted to
cast doubt upon the size of the verdict, these arguments are
unpersuasive. This case, in which the decedent's travails
extended over a period of several hours, is unlike cases
involving sudden death in which a decedent's pain and suffering
is limited to a few seconds or, at most, a matter of minutes.
See, e.g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89,
___ ____ ____ ________________________________
94 (1st Cir. 1976). By like token, merely showing that the
damage award is generous in comparison to other (hand-picked)
cases is insufficient to warrant relief. See Havinga v. Crowley
___ _______ _______
Towing & Transp. Co., 24 F.3d 1480, 1488-89 (1st Cir. 1994).
______________________
Finally, it is beside the point that judges in the commonwealth
courts frequently award lesser sums in wrongful death actions.
While EMTALA refers to local law to determine the scope of
damages, see 42 U.S.C. 1395dd(d)(2), this requirement does not
___
override the general rule that "[a] federal jury . . . is not
bound in making its determination by the amount that the
Commonwealth courts have awarded or approved." LaForest, 536
________
F.2d at 446-47.
28
To recapitulate, converting feelings such as pain,
suffering, and mental anguish into dollars is not an exact
science. The jury is free "to harmonize the verdict at the
highest or lowest points for which there is a sound evidentiary
predicate, or anywhere in between . . . so long as the end result
does not . . . strike such a dissonant chord that justice would
be denied were the judgment permitted to stand." Milone v.
______
Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988). Here, we
___________________
do not find the damages assigned by the jury to cross the outer
limit of the wide universe of acceptable awards. In sum, the
damage award in the heirs' favor is neither legally inappropriate
nor so excessive as to necessitate a remittitur.10
V. CONCLUSION
V. CONCLUSION
We need go no further. HSF has not presented arguments
capable of overcoming the formidable hurdles it faces in
challenging either the liability determination or the damage
assessment of a properly instructed jury. The judgment below
must therefore be
Affirmed.
Affirmed.
________
____________________
10Our endorsement of the damages, including the award to the
heirs for the decedent's pain and suffering, is fortified by the
trial judge's unconditional seal of approval. See Ruiz, 929 F.2d
___ ____
at 34.
29
APPENDIX
APPENDIX
EMTALA Excerpts
EMTALA Excerpts
_______________
In the case of a hospital that has a hospital
emergency department, if any individual (whether or not
eligible for benefits under [Medicare]), comes to the
emergency department and a request is made on the
individual's behalf for examination or treatment for a
medical condition, the hospital must provide for an
appropriate medical screening examination within the
capability of the hospital's emergency department,
including ancillary services routinely available to the
emergency department, to determine whether or not an
emergency medical condition (within the meaning of
subsection (e)(1) of this section) exists.
42 U.S.C. 1395dd(a).
If any individual (whether or not eligible for
benefits under [Medicare]) comes to a hospital and the
hospital determines that the individual has an
emergency medical condition, the hospital must provide
either--
(A) within the staff and facilities available
at the hospital, for such further medical
examination and such treatment as may be required
to stabilize the medical condition, or
(B) for transfer of the individual to another
30
medical facility in accordance with subsection (c)
of this section.
42 U.S.C. 1395dd(b)(1).
If an individual at a hospital has an emergency
medical condition which has not been stabilized (within
the meaning of subsection (e)(3)(b) of this section),
the hospital may not transfer the individual unless--
(A)(i) the individual (or a legally
responsible person acting on the individual's
behalf) after being informed of the hospital's
obligations under this section and of the risk of
transfer, in writing requests transfer to another
medical facility [, or]
(ii) a physician . . . has signed a
certification that based upon the information
available at the time of transfer, the medical
benefits reasonably expected from the provision of
appropriate medical treatment at another medical
facility outweigh the increased risks to the
individual . . . and
(B) the transfer is an appropriate transfer .
. . [as defined infra].
_____
42 U.S.C. 1395dd(c)(1).
An appropriate transfer to a medical facility is a
transfer--
(A) in which the transferring hospital
31
provides the medical treatment within its capacity
which minimizes the risks to the individual's
health . . . ;
(B) in which the receiving facility--
(i) has available space and qualified
personnel for the treatment of the
individual, and
(ii) has agreed to accept transfer of
the individual and to provide appropriate
medical treatment;
(C) in which the transferring hospital sends
to the receiving facility all [relevant] medical
records . . . ; [and]
(D) in which the transfer is effected through
qualified personnel and transportation equipment,
as required including the use of necessary and
medically appropriate life support measures during
the transfer . . . .
42 U.S.C. 1395dd(c)(2).
A participating hospital that negligently violates
a requirement of this section is subject to a civil
monetary penalty of not more than $50,000 . . . for
each such violation.
42 U.S.C. 1395dd(d)(1)(A).
Any individual who suffers personal harm
as a direct result of a participating
32
hospital's violation of a requirement of this
section may, in a civil action against the
participating hospital, obtain those damages
available for personal injury under the law
of the State in which the hospital is
located, and such equitable relief as is
appropriate.
42 U.S.C. 1395dd(d)(2)(A).
The term "emergency medical condition" means . .
.
(A) a medical condition 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) placing 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(e)(1)(A).
A participating hospital may not delay provision
of an appropriate medical screening examination
required under subsection (a) of this section or
further medical examination and treatment required
under subsection (b) of this section in order to
33
inquire about the individual's method of payment or
insurance status.
42 U.S.C. 1395dd(h).
34
