USCA11 Case: 19-12225 Date Filed: 01/22/2021 Page: 1 of 6
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12225
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D.C. Docket No. 1:18-cv-00108-LAG
MICHAEL SMITH,
as next friend of MS,
Plaintiff-Appellant,
versus
CRISP REGIONAL HOSPITAL, INC.,
CRISP REGIONAL HEALTH SERVICES, INC., et al,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 22, 2021)
Before ROSENBAUM, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant presents a single issue in this appeal: whether the Hospital-
Defendants’ delay in transferring a patient constitutes a violation of the Emergency
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Medical Treatment and Active Labor Act (the “Act”). The district court dismissed
Appellant’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). With
the benefit of oral argument, and after careful review, we affirm.
Appellant brought his minor child, MS, to the emergency room of the Crisp
Regional Hospital (“Hospital”) at around 9:00 p.m. with symptoms of diabetic
ketoacidosis (“DKA”). Around 10:30 p.m., Appellant signed the transfer
paperwork for MS to be transferred to the Medical Center of Central Georgia,
Children’s Hospital in Macon, Georgia, which is about an hour’s drive away from
the Hospital. At around 2:30 a.m., MS was transported by ambulance to the
Children’s Hospital, arriving about 3:25 a.m.
Appellant’s amended complaint alleged, inter alia, that Crisp Regional
Hospital violated the Act by delaying the transfer of MS. He alleged that the
delay caused permanent nerve damage to the eyes of MS. The Hospital moved to
dismiss the amended complaint on the basis that Appellant had failed to state a
claim under the Act, and the district court issued an order dismissing the amended
complaint and declining to exercise supplemental jurisdiction over the Appellant’s
state law claims. We review the district court’s dismissal of Appellant’s amended
complaint de novo. Ray v. Spirit Airlines, Inc.,
836 F.3d 1340, 1347 (11th Cir.
2016)
MS’s nerve damage is deeply regrettable. But Appellant’s remedy does not
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lie in the Act. The Act was enacted to prevent “patient dumping,” which is the
“practice of some hospitals turning away or transferring indigent patients without
evaluation or treatment.” Harry v. Marchant,
291 F.3d 767, 768 (11th Cir. 2002)
(en banc). The Act subjects covered hospitals to two principal obligations. First,
when an individual presents at a covered hospital emergency room, the Act
imposes upon the hospital an obligation to provide appropriate medical screening.
Id. “As long as a hospital applies the same screening procedures to indigent
patients which it applies to paying patients, the hospital does not violate this
section of the Act.” Holcomb v. Monahan,
30 F.3d 116, 117 (11th Cir. 1994)
(referring to the medical screening requirement set out in 42 U.S.C. § 1395dd(a)). 1
A second major obligation imposed on covered hospitals by the Act is set
out in § 1395dd(b). This provision requires a covered hospital—if its screening
determines that the individual has an emergency medical condition—to provide
stabilization treatment before transferring the individual to another hospital or
discharging the individual. See Harry v. Marchant,
291 F.3d at 768 & n.1.2
1
On appeal, Appellant has abandoned his challenge to the Hospital’s screening
procedures, which the district court rejected because Appellant failed to allege any deviation
from the Hospital’s standard screening procedures. See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well settled in this Circuit that a
legal claim or argument that has not been briefed before the court is deemed abandoned.”).
2
Appellant has also abandoned on appeal his challenge to the Hospital’s
stabilization of MS, which the district court also rejected. See Access Now,
385 F.3d at 1330.
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Our en banc decision in Harry v. Marchant, in which we analyzed the
language of the Act, clearly establishes that the focus of the Act is narrow:
In prescribing minimal standards for screening and transferring
patients, but not for patient care outside of these two narrowly defined
contexts, Congress confined [the Act] solely to address its concerns
and, at the same time, avoided supplanting available state malpractice
and tort remedies.
291 F.3d at 774. Thus, our case law is well established that the Act “was not
intended to be a federal malpractice statute,”
id. at 770, and “was not intended to
establish guidelines for patient care,”
id. at 773. The Act “is not designed to
redress a negligent diagnosis by the hospital; no federal malpractice claims are
created.” Holcomb,
30 F.3d at 117.
There is no provision of the Act suggesting that Congress intended to
impose time restrictions with respect to a hospital’s decision to transfer a patient to
another hospital. Indeed, the only time restriction in the statute relates not to the
transfer decision, but rather to the screening and stabilization requirements. The
Act provides:
A participating hospital may not delay provision of an appropriate
medical screening examination required under subsection (a) or
further medical examination and treatment required under subsection
(b) in order to inquire about the individual’s method of payment or
insurance status.
42 U.S.C. § 1395dd(h). Obviously, this provision has no relevance to this case.
Appellant makes no allegation that the delay was “in order to inquire about the
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individual’s method of payment or insurance status.” Nor does § 1395dd(h)
impose a time obligation on a covered hospital with respect to the transfer of the
individual.
We thus conclude that Appellant’s claim that the Hospital unreasonably
delayed the transfer of MS to the Children’s Hospital in Macon does not state a
claim of violation of the Act. Rather, Appellant’s claim is the kind of claim
contemplated by state medical malpractice laws, and the kind of claim that our
well-established case law indicates is not implicated by the Act. 3
In an argument presented to this court for the first time at oral argument,
Appellant argued that the hospital’s delay in transferring MS violated the Act’s
requirement of an “appropriate transfer.” We reject this new argument. First, the
argument was not raised at all in Appellant’s brief on appeal. Thus, we conclude
that the argument has been abandoned. See Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that issues not raised on appeal
are deemed waived). Second, in the only provision of the Act that requires an
“appropriate transfer,” the Act precisely defines the meaning thereof.
42 U.S.C. §
3
We also reject Appellant’s argument that the Act incorporates the Georgia state
law medical malpractice standards. This argument is flatly inconsistent with our well-
established case law that the Act does not create federal malpractice claims, but rather avoids
supplanting available state malpractice and tort remedies. Harry v. Marchant,
291 F.3d at 770,
774; see also Holcomb,
30 F.3d at 117. The district court in this case declined to exercise
supplemental jurisdiction over Appellant’s Georgia state law claims, and Appellant does not
challenge that decision on appeal.
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1395dd(c)(2). That defined scope of an “appropriate transfer” includes specific
requirements—e.g., that relevant medical records be sent to the receiving facility,
and that the transfer be “effected through qualified personnel and transportation
equipment.”
Id. § 1395dd(c)(2)(C)–(D). Time limitations on the transfer are
conspicuously absent from the definition of the meaning of the term “appropriate
transfer” and we are not allowed to add words to or rewrite a statute. See Friends
of Everglades v. S. Fla. Water Mgmt. Dist.,
570 F.3d 1210, 1224 (11th Cir. 2009).
Finally, as explained above, Appellant’s argument that the delay in transferring MS
constituted a violation of the Act is squarely contradicted by our established case
law that the Act did not create malpractice or tort remedies. Harry v. Marchant,
291 F.3d at 774. The Act “was not intended to be a federal malpractice statute.”
Id. at 770. Appellant’s argument in effect urges us to read into the word
“appropriate” all of the content of common law negligence law. If allegedly
unreasonable delay is actionable, so would be any other negligent care. Just as the
Act was not “designed to redress a negligent diagnosis by the hospital,” Holcomb,
30 F.3d at 117, similarly the Act was not designed to redress allegedly negligent
delay in transferring patients. As our en banc decision in Harry v. Marchant
repeatedly states, the Act was not intended to create federal malpractice remedies.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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