THOMAS (LARRY O'NEIL) VS. ST. JOSEPH HEALTHCARE, INC.Annotate this Case
RENDERED: JULY 16, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
LARRY O'NEIL THOMAS, AS
ADMINISTRATOR OF THE ESTATE OF
JAMES "MILFORD" GRAY, DECEASED,
AND ALL LAWFUL SURVIVORS OF JAMES
"MILFORD" GRAY, DECEASED
ON REMAND FROM SUPREME COURT OF KENTUCKY
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, SPECIAL JUDGE
ACTION NO. 00-CI-01364
ST. JOSEPH HEALTHCARE, INC.,
D/B/A ST. JOSEPH HOSPITAL
SAINT JOSEPH HEALTHCARE, INC.
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, SPECIAL JUDGE
ACTION NO. 00-CI-01364
LARRY O’NEIL THOMAS, AS
ADMINISTRATOR OF THE ESTATE OF
JAMES “MILFORD” GRAY, DECEASED,
AND ALL LAWFUL SURVIVORS OF
JAMES “MILFORD” GRAY, DECEASED
OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND WINE, JUDGES.
WINE, JUDGE: In our prior opinion, we set out the facts of this case as follows:
The parties vigorously disagree about the facts of this case. However, they agree
that James Milford Gray, age 39, arrived at the emergency room of St. Joseph
Hospital (“the Hospital”) on April 8, 1999, at 8:08 p.m. He was complaining of
abdominal pain, constipation for four days, nausea and vomiting. He was seen by
physician’s assistant Julia Adkins and Dr. Barry Parsley. He received medication
for pain and later received an enema and manual disimpaction of his colon.
Although lab tests were ordered, either Gray refused to cooperate, or upon reorder,
they were never conducted. Likewise, no x-rays were conducted.
Gray was discharged at 12:40 a.m. on April 9, 1999. He was taken by
ambulance to the homes of different family members with whom he had previously
stayed. However, no family member agreed to provide a place to stay, so he was
returned to the Hospital. Upon his return to the emergency room, the Hospital
made arrangements for Gray to stay at the nearby Kentucky Inn.
Gray returned to the Hospital at 5:25 a.m. after the staff of the
Kentucky Inn contacted 911 on his behalf. He had been vomiting dried blood for
several hours. He was again seen and evaluated by both Adkins and Dr. Parsley.
Lab tests and x-rays were conducted during this visit. Subsequently, he was
discharged by Dr. Jack Geren at 12:15 p.m.
However, Gray died later that day at a family member’s home. The
autopsy report listed the cause of death as purulent peritonitis caused by a rupture
of a duodenal ulcer due to duodenal peptic ulcer disease. The autopsy report also
listed constrictive atherosclerotic coronary artery disease as a contributory cause of
Gray’s Estate (“the Estate”) brought this action on April 8, 2000,
alleging medical negligence against the Hospital, Dr. Joseph Richardson (a
physician who treated Gray during an earlier visit to the Hospital on March 9,
1999), Dr. Parsley, Dr. Geren, physician’s assistant Adkins, and several members
of the nursing staff. In addition, the Estate alleged that the Hospital violated the
Emergency Medical Treatment and Active Labor Act (“EMTALA”). After a
lengthy period of discovery, the matter proceeded to trial on October 3, 2005.
However, that trial ended in a mistrial.
Prior to the second trial, the Estate settled with Drs. Richardson,
Parsley, and Geren. The matter then proceeded to a jury trial on the claims against
the Hospital on November 7-9, 14-17, and 21-23, 2005. The jury returned verdicts
for the Estate on both the medical negligence and the EMTALA claims. The jury
apportioned fault as follows: 15% to the Hospital; 0% to Dr. Richardson; 30% to
Dr. Parsley and physician’s assistant Adkins; 30% to Dr. Geren; and 25%
comparative fault to Gray. The jury awarded compensatory damages of
$25,000.00, of which the Hospital’s share was $3,750.00. The jury also assessed
punitive damages against the Hospital in the amount of $1,500,000.00.
Thereafter, the Hospital filed motions for a judgment notwithstanding
the verdict and for a new trial. The trial court denied the motions with respect to
the jury’s findings of liability and the award of compensatory damages. However,
the court concluded that the award of punitive damages was clearly excessive and
therefore a new trial on that issue was in order.
The Hospital and the Estate each filed an appeal from the trial court’s
order. In its cross-appeal, the Hospital argued that it was entitled to a directed
verdict on the Estate’s EMTALA and negligence claims, that the Estate’s claim for
unliquidated damages should have been dismissed because it failed to disclose the
amount of such damages it was seeking, and that it was entitled to a new trial based
upon the Estate’s misconduct at trial and other trial errors. The Hospital also
argued that the issue of punitive damages should not have been submitted to the
jury, or in the alternative, that the jury instructions regarding punitive damages
were inadequate. In its direct appeal, the Estate argued that the award of punitive
damages was not excessive and therefore the Hospital was not entitled to a new
trial on this issue.
This Court affirmed the trial court in part, reversed in part, and
remanded for a new trial on the issue of punitive damages.1 This Court found that
the EMTALA and negligence issues were properly presented to the jury with
proper instructions. We also found that the Estate sufficiently supplemented its
response regarding unliquidated damages following the first trial, and we
concluded that the Hospital was not entitled to a new trial. This Court further
found that the trial court properly set aside the punitive damages award as
excessive. However, we further concluded that the instructions on punitive
damages were deficient. We directed that the punitive damages instructions on
remand must set out the standard of proof and require proof that the Hospital
ratified the employee’s conduct.
The Hospital and the Estate each filed motions for discretionary
review. The Kentucky Supreme Court granted the Hospital’s motion. Thereafter,
the Supreme Court remanded the action to this Court for reconsideration in light of
its recent opinion in Martin v. Ohio County Hospital Corp., 295 S.W.3d 104 (Ky.
2009). On remand, the parties submitted supplemental briefs addressing the
applicability of Martin.
Facts and Analysis of EMTALA Claim in Martin v. Ohio County
Thomas, et al. v. St. Joseph Healthcare, Inc., Nos. 2007-CA-001192-MR & 2007-CA-001244MR (Ky. App. 2008).
In Martin, the Supreme Court addressed, among other things, the
proof necessary to establish a claim under EMTALA. In that case, the decedent,
Billie Carol Shreve, was taken to the hospital after an automobile accident. She
was first evaluated in the hospital’s emergency room by a registered nurse, who
performed triage. Shreve had indications of blunt abdominal trauma and stated
that she was uncomfortable, and although she otherwise appeared stable at first,
rapidly deteriorated. Her blood pressure began to drop severely and her pulse rate
elevated approximately an hour and twenty-five minutes after arriving at the
hospital, and she lapsed into unconsciousness some nine minutes later.
The nurse and physician attending her testified that by that time, they
believed she had gone into shock, was probably hemorrhaging, and was in need of
a surgeon. However, there was no surgeon available to the hospital, or one was not
called. The attending physician could not pinpoint the source of bleeding, but
ordered blood transfusions. The physician ordered a CT scan, but had to forward
the films to another hospital to have a radiologist read them. However, Shreve was
not transferred to another hospital for more than four hours. By the time she
arrived, the patient had bled to death.
Shreve’s estate brought an action against the doctor and the hospital,
asserting claims for medical malpractice and violation of EMTALA. In particular,
the estate alleged that the hospital had violated its duties under EMTALA to
provide an appropriate medical screening and to stabilize Shreve's condition before
discharging her and transferring her to another facility. At the conclusion of trial,
the jury found for the estate on both the negligence and EMTALA claims.
On appeal, the hospital argued that it was entitled to a directed verdict
on the EMTALA claim because there was no evidence that it provided disparate
treatment to Shreve based on her ability to pay. This Court concluded that, while
improper motive is not a necessary element to prove a failure-to-stabilize claim
under EMTALA, it is an element required to prove that the hospital violated its
duty to provide an adequate medical screening. Ohio County Hospital Corp. v.
Martin, No. 2006-CA-002248-MR (Ky. App. 2008), slip op. at 9, citing Cleland v.
Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990). This Court
further found no evidence that the hospital failed to comply with EMTALA before
transferring Shreve. Consequently, this Court concluded that the hospital was
entitled to a directed verdict on both aspects of the EMTALA claim. Id. at 10-11.
The Kentucky Supreme Court agreed that the hospital was entitled to
a directed verdict on the EMTALA claims, but on significantly different grounds.
The Court first questioned whether EMTALA applied because there was no
evidence that the hospital or the doctor made treatment decisions based on
Shreve’s ability to pay. The Court went on to hold that motive is not an element of
a screening or a stabilization/transfer claim under EMTALA.
Rather, the Court concluded that EMTALA imposes specific duties on
medical providers, and imposes strict liability on the provider for violation of those
duties regardless of motive.
The screening requirement provides that, if a
hospital at which an individual seeks “examination or
treatment” has an emergency room, the hospital must
provide “an appropriate medical screening examination
within the capability of the hospital's emergency
department, including ancillary services routinely
available to the emergency department . . . .” The
purpose of providing such screening is “to determine
whether or not an emergency medical condition . . .
exists.” [42 U.S.C.] § 1395dd(a). The hospital must do
enough screening or diagnostics to make that
determination. If there is no emergency, this Act does
not apply. If the hospital determines that an emergency
medical condition exists, then the stabilization-or-transfer
requirement kicks in. This requires the hospital to
provide additional medical examination and treatment
within its capabilities or to transfer the person to an
appropriate facility. In reality, the medical emergency
may require some treatment, if within the hospital's
capability, before transfer, which is arguably what
However, subsection (c) of EMTALA places three
alternative requirements on the hospital, only one of
which must be met, before it may transfer a patient: that
it get a request to transfer in writing from the patient; that
a physician sign a certification that the treatment
reasonably expected to be received at the other hospital
outweighs the risks of transfer; and that if no physician is
physically present, qualified medical personnel as
defined in the statute may sign the risk certification if a
physician has in fact made the determination and later
adopts it by signing it. § 1395dd(c).
Martin, supra at 113.
Turning to the facts of the case before it, the Supreme Court in Martin
concluded that the hospital had satisfied its duties under EMTALA. Although the
Court recognized that there was a question whether the doctor and the hospital staff
performed these actions within the appropriate standard of care, the Court
concluded that the hospital had met its duties under EMTALA. Consequently, the
Supreme Court determined that the hospital was entitled to a directed verdict on
the EMTALA issues of screening and stabilization or transfer because all the
requirements of the statute were met.
The Supreme Court then went on to discuss the proof necessary to
establish an EMTALA claim, the appropriate jury instructions, and the damages
available for a violation of EMTALA.
This Court does not believe that improper motive
is an element of the individual EMTALA claim. If a
hospital complies with the statute, motive is obviously
immaterial. But it is also immaterial when it does not
comply, because regardless of motive, the hospital has
failed in its statutory duty, and is thus liable. If there is no
dispute that the hospital did or did not do what the statute
requires, then the personal cause of action is to determine
damages only. But this Court does recognize that there
could be a dispute over whether the hospital has done the
necessary things, such as a scenario where a physician
testifies that he completed and signed the Certificate of
Transfer, but it cannot now be found in the record. Such
questions of fact would also obviously be determined at
To that end, a general negligence instruction is not
appropriate in an EMTALA claim. The statute puts an
absolute duty on hospitals to do what it requires. Thus,
appropriate instructions (if there is a liability question,
and assuming that the hospital has an emergency
department) would be as follows.
If an emergency medical condition has not been
determined, such as when a patient is allegedly
It was the duty of defendant hospital to
provide an appropriate medical screening
examination of the plaintiff (decedent) within the
capability of the hospital's emergency department
whether or not a medical emergency exists.
Do you believe, based on the evidence, that
the hospital provided such screening?
Yes ---- No ---For instance, this instruction would apply when a patient
was released without further examination, stabilization or
transfer on a determination that there was no emergency
medical condition, then later has problems or dies.
If the hospital has determined that the individual
has an emergency medical condition:
It was the duty of the hospital, because there was
an emergency medical condition, to
A) provide such medical examination and
treatment necessary to stabilize the medical
condition within the staff and facilities available;
B) to transfer the plaintiff (decedent) to another
medical facility by
1) obtaining informed consent from the plaintiff
(decedent) in writing; or
2) issuing and signing a Certificate of Transfer
certifying that the medical benefits reasonably
expected from the transfer outweigh any
increased risks to the individual from transfer;
3) allowing a qualified medical person to issue
the Certificate of Transfer after a physician has
made the actual certification, and subsequently
signs the certificate.
Do you believe, based on the evidence, that the
hospital performed its duty in regard to the
Yes ---- No ---This instruction should be given if a determination that
there is an emergency medical condition has been made.
After such determination, the screening requirements
obviously have no application because regardless of their
efficacy, the proper determination has been made that
requires further examination and treatment within the
hospital's capabilities, or transfer to an appropriate
There will be necessary variations depending on
the facts of each case, and whether there is a liability
question or a damages claim only. Since the damages
allowed to the individual by the statute are those
“available for personal injury under the law of the State
in which the hospital is located,” § 1395dd(d)(2)(A), the
general damages instruction will apply. But it must be
emphasized that such damages are available under
EMTALA only when the personal harm is a direct result
of the hospital's violation of the statute, not by any harm
caused by the medical negligence of personnel or the
Id. at 113-15.
But while the Court in Martin concluded that the hospital was entitled
to a directed verdict on the EMTALA claims, it did not remand the matter for a
new trial. The Court noted that the jury was separately instructed on all of the
estate’s theories of liability, and that the proof of damages was the same for each
of the theories. Since the jury found for the estate on the other theories of liability,
the Court determined that a new trial was not necessary to sustain the judgment.
Id. at 116.
Application of Martin Analysis to Current Case
In the current case, the Estate argues that the factual and legal issues
in Martin were so different that its application to the current case is limited. The
Estate correctly notes that the screening requirement of § 1395dd(a) is not at issue.
In Martin, the hospital met all the requirements of EMTALA to transfer Shreve.
By contrast, the Estate notes that the Hospital did not attempt to transfer Gray.
Rather, the Estate argues that the Hospital failed to stabilize Gray’s emergency
medical condition prior to discharging him.
The Hospital, on the other hand, maintains that it met its duties under
EMTALA as set out in Martin. The Hospital provided medical treatment to Gray
both times he was admitted. Even if the treatment was inadequate or negligent, the
Hospital argues that it was sufficient to meet its duties under EMTALA. And the
Hospital again argues that it cannot be liable under EMTALA for failing to detect
Gray’s duodenal ulcer, but only for failing to stabilize and treat the emergency
medical conditions which it actually detected. The Hospital notes that its
physicians diagnosed Gray with “acute gastritis, with hemorrhage,” and he was
treated for this condition. The Hospital also points to Dr. Geren’s conclusion that
that Gray was stable at the time of his discharge. Thus, the Hospital contends that
EMTALA is not applicable, but that the facts of this case would more
appropriately support a negligence claim.
As we noted in our prior opinion, the Hospital does not violate its duty
to stabilize under EMTALA if it fails to detect or if it misdiagnoses an emergency
condition. Baker v. Adventist Health, Inc., 260 F.3d 987, 993-94 (9th Cir. 2001).
However, the duty to stabilize under EMTALA requires the Hospital “to provide
such medical treatment of the [emergency medical] 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 . . . .” 42 U.S.C. § 1395dd(3)(A). The term “emergency medical
(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
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part . . .
42 U.S.C. § 1395dd(e)(1)(A).
Based on these definitions, the Hospital’s duty to stabilize under
EMTALA arises upon its determination that the patient is manifesting symptoms
of sufficient severity as to constitute an “emergency medical condition”. Although
the Hospital is not liable when it fails to detect or misdiagnoses an emergency
condition, it must stabilize the emergency medical condition which it actually
detects prior to discharging the patient. In assessing the physical stability of a
patient, courts have generally focused on the EMTALA requirement that "no
material deterioration" of the condition is likely. Thomas v. Christ Hospital and
Medical Center, 328 F.3d 890, 893 (7th Cir. 2003), citing St. Anthony Hospital v.
U.S. Dept. of Health and Human Services, 309 F.3d 680, 697 (10th Cir. 2002);
Harry v. Marchant, 291 F.3d 767, 771 (11th Cir. 2002); Bryant v. Adventist Health
System/West, 289 F.3d 1162, 1167 (9th Cir. 2002).
In Cleland v. Bronson Health Care Group, supra, and Vickers v. Nash
General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996), the respective hospitals’
failures to diagnose potentially life-threatening conditions were arguably
negligent.2 Nevertheless, the courts in both cases dismissed the EMTALA claims,
noting that neither hospital had reason to know that the patients’ conditions were
not stable, that the conditions were worsening in any way, or that the conditions
presented any risk that might become life-threatening. Cleland, 917 F.2d at 271;
Vickers, 78 F.3d at 145.
In this case, the Hospital’s misdiagnosis of Gray’s condition would be
negligent. However, the Hospital’s own records also show that Gray was in severe
pain, was vomiting blood, and had above-normal respiratory rate, highly elevated
white-cell count, below-normal red-cell count, below-normal lymph percentage,
increased hematocrit, and below-normal urine output and density. Furthermore,
there was evidence that he was still in distress at the time of his discharge. Finally,
the Estate’s EMTALA claim was not based only on the actions of the Hospital’s
In Cleland, the hospital diagnosed that patient’s severe intestinal damage as influenza.
However, the condition appeared to be stable upon discharge. Similarly in Vickers, the hospital
treated the patient’s scalp laceration and contusions, but failed to discover cerebral herniation
and epidural hematoma that caused his death four days after discharge.
physicians, but also on the actions of the Hospital’s nursing staff who failed to
properly record and advise the physicians about the extent of Gray’s distress.
There was evidence that the Hospital staff told Gray or his family that they would
call the police if Gray continued to return. Thus, a jury could find that the Hospital
did not meet its stabilization duties under EMTALA notwithstanding Dr. Geren’s
determination that Gray was stable at the time of his discharge. Therefore, we
conclude that the Hospital was not entitled to a directed verdict on the EMTALA
claim even in light of the analysis in Martin.
The Hospital also points to the language in Martin which emphasized
that damages are available under EMTALA only when the personal harm is the
direct result of the hospital’s violation of the statute, not by any harm caused by the
medical negligence of personnel or the hospital. Martin, supra, at 114-15. We
disagree with the Hospital’s argument interpreting this language to mean that
claims under EMTALA and medical negligence are mutually exclusive. The Court
in Martin noted that proof of damages was the same under all of the plaintiff’s
theories. Since the Court found that the hospital had met its duties under
EMTALA, the Court concluded the estate’s damages sounded only in negligence.
Id. at 115.
Nevertheless, a failure to provide stabilization of an emergency
medical condition may amount to a violation of EMTALA and medical negligence.
See Cleland, supra, at 270 (6th Cir. 1990). To a certain extent, the damages may
overlap. Ideally, the instructions should require the jury to set out which damages
are attributable to the EMTALA violation and which damages are attributable to
the medical negligence claim. Likewise, the Hospital may have been entitled to
somewhat different instructions on the EMTALA claim based upon the analysis in
Martin. However, the Hospital has not requested a new trial, only a finding that it
was entitled to a directed verdict on the EMTALA claims. Since we have found
that the Hospital was not entitled to a directed verdict on the EMTALA claims in
light of Martin, we need not address additional remedies which the Hospital has
Since we conclude that the Supreme Court’s opinion does not affect
the Estate’s judgment and award of compensatory damages on the EMTALA
claim, we need not address the other issues raised in our prior opinion. Rather, we
will simply adopt those portions of our prior opinion relating to the trial issues, the
award of unliquidated damages, and the award of punitive damages. We also
restate our prior conclusion that this matter must be remanded for a new trial on
Accordingly, the judgment of the Fayette Circuit Court is affirmed in
all respects except for the award of punitive damages. While we affirm the trial
court’s order granting a new trial on the issue of punitive damages, we also find
that the Hospital was entitled to instructions properly setting out the law as to
ratification and the standard of proof. Therefore, we remand this matter for a new
trial in accord with this Court’s prior opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth R. Seif
Robert F. Duncan
Jay E. Ingle
K. Brad Oakley