STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PATRICIA LANMAN, Personal Representative of the Estate of EUGENE H. LANMAN, Deceased, UNPUBLISHED January 12, 2006 Plaintiff-Appellee, v No Court of Claims KALAMAZOO PSYCHIATRIC HOSPITAL, LC No MH Defendant-Appellant. Before: Hoekstra, P.J., and Neff and Davis, JJ. PER CURIAM. Defendant Kalamazoo Psychiatric Hospital appeals as of right an order denying its motion for summary disposition on the basis of governmental immunity. We reverse and remand this case to the trial court for entry of an order granting defendant s motion for summary disposition. Decedent Eugene H. Lanman was initially taken by police to a different hospital, which found decedent in need of inpatient psychiatric care. The police took decedent to defendant hospital, where he was found in need of care but capable of giving informed consent. Decedent signed a voluntary admission form, and defendant hospital admitted him for long-term psychiatric care, gave him medicine for back pain and placed him in a quiet room. Overnight, decedent became increasingly agitated, eventually culminating in a struggle with defendant s staff and injection of a calming drug. Decedent stopped breathing, allegedly as a result of compression of his breathing capacity by defendant s staff during the struggle. Defendant s staff then performed CPR. Decedent was transported to a general hospital emergency room, where he remained until his death a little more than two weeks later. Plaintiff filed suit. Relevant to this appeal, plaintiff alleged a breach of contract claim premised on the voluntary admission form. Plaintiff also alleged an independent claim under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 USC 1395dd. The trial court found both claims to be pleaded in avoidance of governmental immunity and factually supportable at trial. A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review de novo questions of statutory interpretation to discern and give effect to the Legislature s intent, with the presumption that unambiguous language should be enforced as written. Gladych v New Family -1-

2 Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). Likewise, proper interpretation of a contract and the applicability of governmental immunity are questions of law subject to review de novo. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003); Pierce v Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005). Governmental immunity is controlled by the Governmental Immunity Act (GIA), MCL et seq. Under MCL (1): Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. If a plaintiff successfully pleads and establishes a non-tort cause of action, 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, ; 363 NW2d 641 (1984). Plaintiff alleges that one of her claims sounds in contract and is therefore not subject to the statute. Plaintiff alleges that immunity to the EMTALA claim has been waived. We first consider the breach of contract claim, which alleges both an express and an implied contract. Defendant first argues that the parties did not have an express contract. We disagree, but we find that the parties contract did not include any particular treatment obligations. A breach of contract claim requires plaintiff to establish all of the elements of a contract. Pawlak v Redox Corp, 182 Mich App 758, 765; 453 NW2d 304 (1990). In Michigan, the essential elements of a valid contract are (1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation. Thomas v Leja, 187 Mich App 418, 422; 468 NW2d 58 (1991). However, a contract s enforceability is not dependent on mutuality of obligation so long as one party has given consideration for the other party s obligation. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 600; 292 NW2d 880 (1980). Decedent and one of defendant s doctors signed a voluntary admission form, which plaintiff argues is a contract for specific types of treatment based on the Michigan Mental Health Code, MCL et seq. We disagree. The particular form in this case only constitutes an offer stating the applicant s desire to be admitted to the hospital in exchange for certain promises. See Eerdmans v Maki, 226 Mich App 360, 364; 573 NW2d 329 (1997). In relevant part, decedent agreed to consent to treatment and to facilitate payment for any treatment received. Defendant agreed to follow certain procedures in the event it decided to admit decedent or provide certain kinds of treatment against his will. We presume that this offer was accepted by defendant s decision to admit decedent, which did establish an express contract. Otherwise, the contract based on this form only authorizes treatment, it does not require it. Defendant next argues that the parties did not have an implied contract. We agree. An implied contract may arise where circumstances and the parties conduct and language imply that the parties intended to contract, but where they did not explicitly put that intent into words. -2-

3 Featherston v Steinhoff, 226 Mich App 584, 589; 575 NW2d 6 (1997). There is no elemental difference between an implied contract and an express contract other than the character of the evidence necessary to establish the contract. Borg-Warner Acceptance Corp v Dep t of State, 169 Mich App 587, 590; 426 NW2d 717 (1988), rev d on other grounds 433 Mich 16 (1989). Relevant to this appeal, an implied contract still depends on consideration. Lowery v Dep t of Corrections, 146 Mich App 342, 359; 380 NW2d 99 (1985). [I]t is well settled that doing what one is legally bound to do is not consideration for a new promise. Yerkovich v AAA, 461 Mich 732, ; 610 NW2d 542 (2000). We have addressed an argument similar to plaintiff s that the admission application signed by the decedent constituted an implied agreement between defendants and the decedent to provide appropriate care and treatment for the decedent. Freiburger v Dep t of Mental Health, 161 Mich App 316, 318; 409 NW2d 821 (1987). At the time, MCL provided that [n]o person shall be denied services because of an inability to pay for such services on the part of the individual, the spouse, or the parents. See 1974 PA 258. That statute imposed a preexisting duty to provide services to all persons in need of mental health services, regardless of their ability to pay, so there was no consideration for the alleged contract. Freiburger, supra. The statute now reads an individual shall not be denied services because of the inability of responsible parties to pay for the services. MCL This is only a stylistic change. See In re Marin, 198 Mich App 560, 563; 499 NW2d 400 (1993). We reach the same result today as we did in Freiburger. On these facts, plaintiff s breach of contract claim is a tort case. Freiburger, supra at 320. Consequently, the trial court erred in denying summary disposition of plaintiff s contract claims. Next, we address whether the facts of this case support an EMTALA claim. EMTALA imposes two primary requirements on participating hospitals. 1 First, it requires that a participating hospital afford an appropriate medical screening to all persons who come to its emergency room seeking medical assistance. 42 USC 1395dd(a). Second, it requires that if an emergency medical condition is found to exist, the participating hospital must render those services that are necessary to stabilize the patient s condition. See 42 USC 1395dd(b)(1)(a). 2 In her complaint, plaintiff alleged that defendant violated EMTALA when, despite recognizing the existence of an emergency medical condition, its staff did nothing to stabilize [decedent s] emergency medical condition, or to prevent his condition from deteriorating further to the point that he became a danger to others as well as himself. However, even if accepted as true, plaintiff s allegations in this regard do not support an EMTALA claim under the facts of this case. 1 EMTALA defines a participating hospital as a hospital that has entered into a provider agreement under section 1395cc of this title. 42 USC 1395dd(e)(2). Neither party disputes that KPH is a participating hospital. 2 As an enforcement mechanism for these requirements, the EMTALA creates a private right of action for violations of the act. See 42 USC 1395dd(d)(2). -3-

4 In Harry v Marchant, 291 F3d 767, 770 (CA 11, 2002) (en banc), the Eleventh Circuit Court of Appeals addressed the issue whether EMTALA requires a hospital to provide stabilization treatment to a patient with an emergency medical condition who is not transferred. In that case, an on-call physician acting on behalf of a patient s primary care provider refused to authorize the patient s admission into the defendant hospital s intensive care unit (ICU), despite the emergency room physician s recommendation that she be admitted for treatment of pneumonia. Id. at 768. Several hours later, the patient s regular primary care physician examined and admitted the patient into the ICU. Id. at Shortly thereafter, the patient lapsed into respiratory and cardiac failure and died. Id. at 769. The personal representative of the patient s estate brought suit against the hospital and its emergency room personnel, alleging that the defendants violated EMTALA by failing to stabilize and treat the patient s emergency medical condition. Id. In reversing an earlier panel decision finding that the plaintiff s complaint supported an EMTALA claim for failure to stabilize the patient s condition, the court, sitting en banc, noted that the term to stabilize was expressly defined by EMTALA. Id. at 770. Specifically, the court noted that [u]nder EMTALA, the term to stabilize means with respect to an emergency medical condition... [a hospital must] provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result or occur during the transfer of the individual from a facility. [Id. at , quoting 42 USC 1395dd(e)(3)(A) (emphasis added).] Addressing the language emphasized above, the court reasoned that [c]onstruing EMTALA to mandate stabilization treatment irrespective of a transfer renders the words during the transfer, contained in the statutory definition of the term to stabilize, superfluous. Id. at Thus, the court found that [t]o give effect to the clear language of the statute, [it] must conclude that the triggering mechanism for stabilization treatment under EMTALA is transfer, and that, therefore, EMTALA mandates stabilization of an individual only in the event of a transfer as defined in EMTALA. 3 Id. In reaching this conclusion, the court noted that the legislative history and purpose of EMTALA was consistent with such a construction: EMTALA s main objective was to prevent the practice of patient dumping, [i.e, the practice of some hospital emergency rooms turning away or transferring indigents to public hospitals without prior assessment or stabilization treatment.] By mandating treatment only in the context of a patient transfer, the stabilization requirement addresses Congress concern regarding rejection of patients without converting EMTALA into a federal malpractice statute. In prescribing minimal standards for screening and transferring patients, but not for patient care outside 3 The term transfer is defined by the act as the movement (including the discharge) of an individual outside of a hospital s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital. 42 USC 1395dd(e)(4). -4-

5 these two narrowly defined contexts, Congress confined EMTALA solely to address its concerns and, at the same time, avoided supplanting state malpractice and tort remedies. [Id. at ] Absent a conflict among the various federal appellate circuits, we are bound by the holding of a federal appellate court concerning interpretation of a federal statute. Abela v General Motors Corp, 257 Mich App 513, 526; 669 NW2d 271 (2003). We are aware of no conflict with the en banc decision of the court in Harris, supra, and, in any event, agree that the EMTALA stabilization requirement is unambiguous, and plainly applies only to those instances where a patient treated for an emergency medical condition is transferred or discharged. See Gladych, supra. Consequently, because plaintiff s decedent was neither transferred nor discharged, but rather admitted to the defendant hospital for long term treatment of his psychiatric condition, 4 the requirements of EMTALA are inapplicable and summary disposition of her EMTALA claim is required. 5 Reversed and remanded for entry of an order granting defendant s motion for summary disposition. We do not retain jurisdiction. /s/ Joel P. Hoekstra /s/ Janet T. Neff 4 We acknowledge that decedent was transferred to another hospital that was better equipped to treat his physical condition resulting from the fact that he stopped breathing during the struggle with defendant s staff members. However, plaintiff does not complain of a lack of stabilization relative to decedent not breathing prior to the transfer. Rather, she alleges a failure to stabilize... or prevent his [psychiatric] condition from deteriorating further to the point that he became a danger to others as well as himself. Consequently, the transfer after the struggle is immaterial to whether plaintiff may maintain her EMTALA claim. 5 Because we find plaintiff s EMTALA claim to be factually untenable, we need not consider defendant s claim of governmental immunity. -5-

6 STATE OF MICHIGAN COURT OF APPEALS PATRICIA LANMAN, Personal Representative of the Estate of EUGENE H. LAMNAN, Deceased, UNPUBLISHED January 12, 2006 Plaintiff-Appellee, v No Ingham Circuit Court KALAMAZOO PSYCHIATRIC HOSPITAL, LC No MH Defendant-Appellant. Before: Hoekstra, P.J., and Neff and Davis, JJ. DAVIS, J. (concurring in part and dissenting in part). I agree with my colleagues disposition of plaintiff s contract claims. However, I respectfully disagree with their disposition of plaintiff s EMTALA claim. EMTALA requires any hospital with an emergency department to screen any patient for emergency medical conditions and either to provide stabilizing treatment to the extent the hospital can or to transfer the patient to another hospital. 42 USC 1395dd(a)-(b); see also In re AMB, 248 Mich App 144, 187; 640 NW2d 262 (2001). EMTALA was enacted for the sole purpose [of dealing] with the problem of patients being turned away from emergency rooms for non-medical reasons. Id., , quoting Bryan v Rectors & Visitors of Univ of Virginia, 95 F3d 349, 351 (CA 4, 1996). Accord, Cleland v Bronson Health Care Group, Inc, 917 F2d 266, 268 (CA 6, 1990). The federal circuit courts have unanimously 1 held that EMTALA is not intended as a federal malpractice statute. Gatewood v Washington Healthcare Corp, 933 F2d 1037, 1041 (CA DC, 1991); Correa v Hospital San Francisco, 69 F3d 1184, 1192 (CA 1, 1995); Hardy v New York City Health & Hosp Corp, 164 F3d 789, 792 (CA 2, 1999); Bryan, supra at 351 [Fourth Circuit]; Marshall v East Carroll Parish Hosp Service Dist, 134 F3d 319, 322 (CA 5, 1998); Cleland, supra at 272 [Sixth Circuit]; Summers v Baptist Medical Ctr Arkadelphia, 91 F3d 1132, 1 The Seventh Circuit impliedly held that EMTALA is not a malpractice cause of action, but did not directly address the issue. Thomas v Christ Hosp and Medical Ctr, 328 F3d 890, (CA 7, 2003). The Third Circuit has not addressed the issue. -1-

7 (CA 8, 1996); Eberhardt v City of Los Angeles, 62 F3d 1253, 1258 (CA 9, 1995); Urban v King, 43 F3d 523, 525 (CA 10, 1994); Harry v Marchant, 291 F3d 767, 770 (CA 11, 2002). This Court is bound by an interpretation of federal law that is undisputed between the circuits. Young v Young, 211 Mich App 446, 450; 536 NW2d 254 (1995). However, federal circuit court decisions construing state law are not binding, although this Court may choose to adopt them as persuasive. Allen v Owens-Corning Fiberglas Corp, 225 Mich App 397, 402; 571 NW2d 530 (1997). The majority concludes that EMTALA is not implicated under the facts of this case because defendant admitted plaintiff s decedent instead of transferring him or discharging him. I would parse the statute differently. In relevant part, it imposes the following obligation: (b)(1) If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either (A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section. The majority accepts the presumption that plaintiff s decedent came to the hospital and that the hospital determined that he had an emergency medical condition within the definition provided by 42 USC 1395dd(e)(1)(A). Thus, defendant was required either to provide stabilizing medical treatment or to transfer plaintiff s decedent elsewhere. EMTALA defines stabilize as follows: (e)(3)(a) The term to stabilize means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta). The majority concludes that stabilization under EMTALA applies only when contemplating transferring an admitted patient elsewhere. Logically, under that scenario, if no transfer is contemplated, no stabilization is required after a patient is admitted. I cannot reconcile such a reading with (b)(1), which requires stabilizing treatment or a transfer. A more harmonious reading of EMTALA s definition of stabilization does not require that a transfer actually be contemplated. Rather, it must merely be possible to do safely. In other words, EMTALA provides a benchmark for treating medical personnel: the statute is -2-

8 satisfied if the hospital could transfer a given patient without risking deterioration of that patient s condition. If a patient could be transferred safely, the patient is stable under EMTALA, irrespective of whether anyone in fact intends to transfer the patient. Although inartfully worded, this would be a standard applicable to all patients, and would not generate any conflict between different statutory provisions. My colleagues rely on Harry, supra, and they accurately summarize the case. However, I do not believe Harry is as entirely uncontested as the majority suggests. The Ninth Circuit reached the same holding, that EMTALA s stabilization requirement ends when an individual is admitted for inpatient care, but it simultaneously noted a conflict between the Sixth and Fourth Circuits on that point. Bryant v Adventist Health Systems/West, 289 F3d 1162, 1168 (CA 9, 2002). Thus, we are not necessarily bound by it. Young, supra at 450. Even presuming Harry s holding was uncontested, Bryant provided a more expansive and, I believe, more persuasive discussion of that issue. Specifically, the Ninth Circuit additionally explained that admission for inpatient care will not terminate EMTALA liability if that admission is not done in good faith. Bryant, supra at This is more consistent with 42 CFR (a)(1)(ii), which provides that [i]f the hospital admits the individual as an inpatient for further treatment, the hospital s obligation under this section ends.... (emphasis added). The pertinent allegation here is that defendant admitted plaintiff s decedent and provided no mental health treatment whatsoever. Taking this allegation as true, as we must for purposes of summary disposition, this raises, at a minimum, a question whether the admission was in sufficiently good faith to terminate defendant s EMTALA obligations. From plaintiff s perspective in this case, Harry is irrelevant under circumstances where defendant neither treated, transferred, nor discharged plaintiff s decedent. The dispositive question presented by this appeal is whether an EMTALA claim can ever be brought against a state-operated hospital in light of the Governmental Immunity Act, MCL et seq., and the Eleventh Amendment. This case is only here at this stage as a result of defendant s assertion of a governmental immunity defense. MCR 7.202(6)(a)(v). It is well established that governmental immunity may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. Ballard v Ypsilanti Twp, 457 Mich 564, 574; 577 NW2d 890 (1998), quoting Mead v State, 303 Mich 168, 173; 5 NW2d 740 (1942). Under the Eleventh Amendment Congress may not compel states to entertain suits against themselves in their own courts for federal claims to which the states would be immune in federal court. Alden v Maine, 527 US 706, 736, ; 119 S Ct 2240; 144 L Ed 2d 636 (1999). However, states may without derogating from their sovereignty generally assent to conditions imposed by Congress in exchange for receipt of federal funds. Charles C Steward Machine Co v Davis, 301 US 548, ; 57 S Ct 883; 81 L Ed 1279 (1937). The federal government possesses the authority or means to seek the States voluntary consent to private suits. Alden, supra at 755. EMTALA is part of the Social Security Act. Hospitals that execute Medicare provider agreements with the federal government pursuant to 42 USC 1395cc must treat all human beings who enter their emergency departments in accordance with EMTALA. Burditt v United States Dep t of Health and Human Services, 934 F2d 1362, 1366 (CA 5, 1991). The text of 42 USC 1395cc requires service providers that are hospitals to file an agreement to, among other things, adopt and enforce a policy to ensure compliance with the requirements of section 1395dd of this -3-

9 title and to meet the requirements of such section. 42 USC 1395cc(1)(I)(i). As the majority points out, there is no dispute that defendant is a participating hospital. One can reasonably conclude that, through its action as a participating hospital, defendant Hospital agreed to the terms of EMTALA, one of which is the civil action provided by 42 USC 1395dd(d)(2)(A). Accordingly, defendant would be amenable to suit despite the GIA and despite the Eleventh Amendment. I acknowledge that the United States Supreme Court has stated that the mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. Florida Dep t of Health and Rehabilitative Services v Florida Nursing Home Ass n, 450 US 147, 150; 101 S Ct 1032; 67 L Ed 2d 132 (1981), quoting Edelman v Jordan, 415 US 651, 673; 94 S Ct 1347; 39 L Ed 2d 662 (1974). A waiver of Eleventh Amendment immunity to suit in federal courts may only be found by explicit language to that effect or by a necessary and inescapable implication therefrom. Id. Even where the defendant in Florida Nursing Home Ass n agreed explicitly to obey federal law in administering the program, this customary condition for any participation in a federal program by the State is insufficient to waive the protection of the Eleventh Amendment. Id. I presume defendant complied with 42 USC 1395cc(1)(I)(i), as is required of defendant to participate in Medicare. However, that agreement is not to be found in the record. There is apparently no case law discussing 42 USC 1395cc(1)(I)(i), nor is there any case law discussing the interplay between 42 USC 1395cc and the Eleventh Amendment. In light of the absence of the actual agreement or case law specifically on point, and in light of Florida Nursing Home Ass n, supra, I would not say as a matter of law or as a matter of fact that defendant has actually waived its immunity to an EMTALA claim by explicit agreement or by inescapable implication. An agreement to adopt and enforce a policy to ensure compliance with the requirements of [42 USC 1395dd] and to meet the requirements of such section is a precondition to the receipt of federal Medicare funding. 42 USC 1395cc(1)(I)(i). Further, MCR 2.116(C)(7) requires this Court to view the evidence in a light most favorable to plaintiff as the nonmoving party. Lavey v Mills, 248 Mich App 244, 250; 639 NW2d 261 (2001). Proper statutory interpretation requires this Court to give effect to all words in a statute and reasonably construe them to best accomplish the overall purpose the statute intends. Ross v Michigan, 255 Mich App 51, 55; 662 NW2d 36 (2003). The Social Security Act unambiguously intends to condition receipt of funds on compliance with EMTALA. Under the procedural posture of this case, I am unwilling dispositionally to conclude that defendant has not waived its immunity to an EMTALA claim. The trial court is in a superior position to make the necessary inquiry into the existence and scope of any agreement that defendant executed with the federal government pursuant to its participation in the Medicare reimbursement program. Likewise, the trial court is in a superior position to inquire into the circumstances of defendant s admission of plaintiff s decedent for inpatient care. On the existing record and under our standard of review, I would not hold that an EMTALA claim is factually unsupportable, and I would neither confirm nor rule out a waiver of defendant s immunity. -4-

10 I agree that the trial court s denial of summary disposition as to plaintiff s breach of contract claim should be reversed. However, I would merely vacate the trial court s denial of summary disposition as to plaintiff s EMTALA claim, and I would remand for further development of the factual record. /s/ Alton T. Davis -5-