SUBJECT:

The Inspector General,

,

Samuel T. Bowen, Respondent

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

The Inspector General (I.G.) appealed the September 29, 1999 decision by Administrative Law Judge Mimi Hwang Leahy in Samuel T. Bowen, CR618 (1999) (ALJ Decision). The ALJ rejected the I.G.'s proposal to impose a civil money penalty of $50,000 on Dr. Samuel T. Bowen (Respondent) and to exclude Respondent for one year from participation in the Medicare program and all federal and State health care programs under the Social Security Act (Act). The ALJ concluded that, contrary to the I.G.'s determination, Respondent did not violate section 1867 of the Act, 42 U.S.C. § 1395dd, known as the Emergency Medical Treatment and Active Labor Act (EMTALA).⁽¹⁾ EMTALA imposes certain requirements with respect to the examination, stabilization and transfer of an individual who comes to the emergency department of a hospital that participates in the Medicare program. Specifically, the ALJ concluded that the I.G. "did not sustain her burden of proving that Respondent," an emergency department physician, "was negligent with respect to any of the events which resulted in" the individual in question, L.A., leaving the hospital's emergency department "after only six minutes and without having received a complete medical screening examination required by section 1867 of the Act."⁽²⁾ ALJ Decision at 23. The ALJ further found that "[n]o hospital policy or practice, no standard of professional conduct, and no circumstance of which he knew or should have known on the morning at issue necessitated a different course of action by Respondent." Id.

The I.G. excepted to the ALJ Decision on several bases. The I.G. argued that the ALJ erred by not finding that L.A. had an emergency medical condition when she arrived at the emergency department. The I.G. also argued that the ALJ erred by ending her analysis with the conclusion that Respondent did not violate the requirement for a medical screening examination rather than proceeding to consider Respondent's responsibility under the Act to stabilize and transfer L.A. In addition, the I.G. took exception to 13 of the 15 findings of fact and conclusions of law (FFCLs) in the ALJ Decision.

We here perform an appellate review of a case involving highly emotional issues. As explained later, our role under the applicable regulations is to determine whether the ALJ correctly resolved legal issues and whether her findings of fact are supported by substantial evidence on the whole record, recognizing that the ALJ, not this Board, is in the best position to assess the credibility of witnesses and to weigh the evidence. Applying these standards, we conclude that the challenged findings and conclusions pertaining to whether Respondent was negligent are legally correct and are supported by substantial evidence. However, we modify three of the FFCLs to recognize that the facts found were contested and not uncontested as the ALJ stated, and further modify one of those three FFCLs to reflect an additional, but not dispositive, fact established in the record. We therefore affirm the ALJ Decision, as modified.

We note preliminarily that, in addition to the specific arguments we discuss later, the I.G. at various points in her brief suggested that, when we look at the totality of Respondent's conduct, we must conclude that Respondent violated section 1867. The I.G. posits a situation where Respondent knew that L.A. had a life-threatening condition and Respondent failed to follow professional standards of practice and hospital policies that required him to take certain steps with respect to L.A.'s care at the emergency department. In the I.G.'s view, the ALJ Decision stands for the principle that a physician can avoid liability by looking the other way when an individual requests treatment in an emergency department. However, this is not the situation the ALJ found was proven in this case. First, much of the action or inaction of Respondent asserted by the I.G. in its proposed findings of fact and elsewhere is not governed by the professional standards of practice or the hospital policies found by the ALJ to exist. The I.G. had the burden before the ALJ to establish which standards of professional conduct or which hospital policies should have been applied by the ALJ, and the I.G. here failed to demonstrate that the ALJ applied the wrong standards or policies based on the record before her. Moreover, even where the asserted action or inaction would be governed by a standard or policy which the ALJ found to exist, the I.G.'s assertions are contrary to the facts found by the ALJ concerning Respondent's conduct, and the I.G. failed to establish that these ALJ findings were unsupported by substantial evidence. Thus, however compelling the I.G.'s theory of the case when unexamined, the I.G.'s arguments on appeal are not persuasive since they do not meet the standards of review that apply to the Board and ignore much of the evidence.

Below, we first set forth a summary of the facts and the applicable law. We then discuss the I.G.'s challenge to the ALJ's failure to find that L.A. had an emergency medical condition when she arrived at the emergency department. Next, we discuss the I.G.'s challenge to the ALJ's failure to consider whether Respondent violated the stabilization and transfer provisions of the Act. Finally, we discuss whether the specific FFCLs to which the I.G. took exception are supported by substantial evidence. In reaching the findings and conclusions set forth here, we have considered each and every argument presented by the I.G. although particular arguments may not be specifically addressed.⁽³⁾

Factual Summary

The following summary of the undisputed facts is intended to provide a general framework for understanding this decision. The reader should consult the ALJ Decision for a detailed statement of the facts.

On October 20, 1994, an ambulance from Catawba County [North Carolina] Emergency Medical Services was dispatched to the home of L.A., a 24-year-old woman in her seventh month of pregnancy experiencing vaginal bleeding. The paramedics arrived at her home at 2:55 a.m. L.A. had received prenatal care through the Catawba County Health Department, whose physicians practiced at Catawba Memorial Hospital, but told the paramedics that she preferred to go to Frye Regional Medical Center (FRMC). While en route to FRMC, one of the paramedics advised a nurse at FRMC's emergency department of L.A.'s condition and that L.A. was a Health Department patient. Before the ambulance arrived, Respondent, the only physician on duty at FRMC's emergency department, stated in the presence of the nurses his concern that L.A. was not being taken to Catawba since FRMC's procedures required that Health Department patients with obstetrical problems first be examined in the emergency department instead of going directly to the labor and delivery department. When the paramedics brought L.A. into FRMC's emergency department on a stretcher, the secretary told them that Health Department patients were seen at Catawba, not FRMC. Respondent, who was at the nursing station engaged in some type of paperwork, noticed the paramedics bringing L.A. in. Nurse Chapman, the charge nurse, interrupted the paramedics' exchange with the secretary and escorted the paramedics with L.A. into an enclosed examination room. In the examination room, Nurse Chapman performed some nursing assessments while L.A. was still on the stretcher, at the same time telling the paramedics and L.A. that L.A. would have to remain in the emergency department until an obstetrician could be found. Nurse Chapman also told them that if L.A. went to Catawba, she could likely go directly to the labor and delivery department there. The paramedics left FRMC with L.A. at 3:21 a.m., which the ALJ found was six minutes after they had arrived. Respondent observed them leaving and asked Nurse Chapman for an explanation of what had happened. L.A. later delivered a viable baby girl by caesarean section at Catawba. It was determined during the operation that L.A. had been suffering from abruptio placenta, a potentially life-threatening condition for both mother and fetus.

Statutory Background and Standard of Review

Under section 1867(a) of the Act, when an individual comes to an emergency department of a participating hospital requesting 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. . . to determine whether or not an emergency medical condition within the meaning of subsection (e)(1) exists."

Section 1867(e) of the Act defines an "emergency medical condition" in relevant part as --

Under section 1867(b)(1), when a hospital determines that an individual has an emergency medical condition, it must provide either "such further medical examination and treatment as may be required to stabilize the medical condition," or for transfer to another medical facility in accordance with section 1867(c).

Section 1867(d)(1)(A) provides that a "participating hospital that negligently violates a requirement of this section" is subject to a civil money penalty of not more than $50,000 ($25,000 for hospitals with less than 100 beds) for each violation. Section 1867(d)(1)(B) provides that "any physician who is responsible for the examination, treatment, or transfer of an individual in a participating hospital, . . . and who negligently violates a requirement of this section" is subject to a civil money penalty of not more than $50,000 for each such violation "and, if the violation is gross and flagrant or is repeated, to exclusion from participation in this title and State health care programs."

Section 1867(d)(3) provides that, in considering whether to impose sanctions for violations of the requirements of the Act, "the Secretary shall request the appropriate utilization and quality control peer review organization . . . to assess whether the individual involved had an emergency medical condition which had not been stabilized, and provide a report on its findings."

The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record. The standard of review on a disputed issue of law is whether the initial decision is erroneous. 42 C.F.R.§ 1005.21(h). Addressing these standards, the Board stated in Bernard J. Burke, M.D., DAB 1576 (1996):

DAB 1576, at 6-7.

The applicable regulations provide that, in the ALJ hearing, "[t]he burden of persuasion will be judged by a preponderance of the evidence." 42 C.F.R. § 1005.15(d).

1. Exception To ALJ's Failure To Determine That L.A. Had An Emergency Medical Condition When She Arrived At FRMC

The ALJ stated that vaginal bleeding in the third trimester of pregnancy, the condition that was reported to Respondent prior to L.A.'s arrival, may be caused by placenta previa or abruptio placenta. The ALJ also stated that "[b]leeding in a pregnant woman, due to either of these causes, puts her and her unborn child at risk . . . of death . . . ." ALJ Decision at 6. Nevertheless, the ALJ found only that L.A.'s complaint of vaginal bleeding "indicated a likely emergency medical condition within the meaning of the statute." ALJ Decision at 4 (emphasis added). This finding appears to have taken into account testimony, noted elsewhere by the ALJ, that, "until the patient was assessed, the [emergency department] staff could not be sure of the cause of the bleeding . . . ." ALJ Decision at 17, at n.12.

The I.G. argued that the ALJ erred in not finding that L.A. came to FRMC with an emergency medical condition. I.G. Br. at 40. Citing the testimony of her two fact witnesses and her two expert witnesses, the I.G. in effect took the position that the ALJ should have concluded that any third trimester vaginal bleeding is an emergency medical condition. I.G. Br. at 42.⁽⁴⁾

We conclude that the I.G.'s exception has no merit. Even if the I.G. were correct that L.A.'s condition constituted an emergency medical condition, that would not make a difference in the outcome of this case. The salient issue is what action a reasonable physician in Respondent's position should have taken in light of what he knew or should have known about L.A.'s condition when she came to the emergency department for treatment.⁽⁵⁾ As discussed later, the ALJ found that "[n]o expert expressed the opinion that the professional standards of practice applicable to Respondent precluded his allowing the [emergency department] nurse to triage (i.e., briefly assess) a patient with suspected placenta previa or abruptio." ALJ Decision at 19. Thus, whether a patient with suspected placenta previa or abruptio placenta is viewed as having an emergency medical condition or instead as having a likely emergency medical condition would not alter the ALJ's conclusion that the professional standards of practice applicable to a physician in Respondent's situation did not require that he have immediately intervened in her care when she arrived at the emergency department.

In any event, contrary to the I.G.'s assertion, her four witnesses did not all testify that third trimester vaginal bleeding is necessarily an emergency medical condition. The testimony of one of the experts--the physician who conducted the PRO review--is more qualified than indicated by the I.G., stating that "significant, massive bleeding" in the third trimester constitutes a medical emergency. Tr. at 291, 293, 299.⁽⁶⁾ In addition, the testimony of one of the I.G.'s fact witnesses--a paramedic who attended to L.A.--is predicated on the assumption that "the bleeding was obvious." Tr. at 249. Thus, this testimony is inconclusive as to whether an emergency medical condition existed where, as here, there is substantial evidence to support the ALJ finding that the extent of bleeding was not apparent to Respondent.⁽⁷⁾ Moreover, notwithstanding the testimony of the two remaining witnesses cited by the I.G., there was other evidence that third trimester vaginal bleeding was not necessarily an emergency medical condition, including the testimony of Respondent's expert witness (Tr. at 606)⁽⁸⁾ and FRMC's internal policy for categorizing emergency conditions, which identified "massive and uncontrolled hemorrhage," but not "vaginal bleeding in pregnancy," as needing immediate attention (ALJ Decision at 22, citing Respondent's Ex. 12). Thus, there was substantial evidence on the record as a whole to support the ALJ's finding that L.A. had only a "likely emergency medical condition" since the tentative diagnosis of placenta previa or abruptio placenta had not been confirmed and the ALJ found that Respondent did not know the extent of the bleeding.

Accordingly, we conclude that the ALJ did not err in not finding that L.A. had an emergency medical condition.

2. Exception To ALJ's Failure To Consider Stabilization And Transfer Requirements

As noted above, in addition to requiring that a hospital provide an appropriate medical screening examination to determine whether an individual who requests treatment in its emergency department has an emergency medical condition, section 1867 contains requirements pertaining to stabilization and transfer of the individual. The I.G. determined that Respondent had violated all three requirements. In her decision, however, the ALJ declined to reach the question of whether any requirements other than the requirement for a medical screening examination were violated. The ALJ stated, in part:

ALJ Decision at 5.

The I.G. took exception to the ALJ's finding that she need not determine whether the stabilization and transfer requirements were violated here. According to the I.G., the ALJ's analysis allowed Respondent to use his failure to perform a medical screening examination "as a defense to other obligations he also failed to perform." I.G. Br. at 38. The I.G. cited Lopez-Soto v. Hawayek, M.D., 175 F.3d 170 (1^st Cir. 1999), for the proposition that "the provisions of section 1867 of the Act should be analyzed separately and independent of one another." I.G. Br. at 39.

This exception has no merit. The I.G. overlooks the fact that Respondent simply had no opportunity to stabilize L.A. or to comply with the requirements for an appropriate transfer. As noted above, the ALJ found that no professional standard of practice applicable to Respondent precluded his relying on the nurse to briefly assess L.A. prior to his performing a medical screening examination. The ALJ also found that "it would have been reasonable for Respondent to anticipate that nursing interactions with the patient would require several minutes," and that "Respondent did not act unreasonably by having remained outside the enclosed examination room during the total of six minutes [L.A.] was at FRMC." ALJ Decision at 21. In addition, the ALJ found that it was undisputed that "it would not have been feasible for Respondent to seek the return of [L.A.] to FRMC's [emergency department] after he saw the paramedics depart with her and then obtained Nurse Chapman's explanation." Id. at 11.⁽⁹⁾ Thus, even if Respondent knew or should have known without conducting a medical screening examination that L.A. had an emergency medical condition, L.A. left FRMC's emergency department before Respondent could reasonably have been expected to take any action consistent with the stabilization and transfer requirements.

Moreover, Lopez-Soto does not require a finding that the stabilization and transfer requirements applied on the facts of the instant case. As the I.G. noted, the court in Lopez-Soto adopted "a disjunctive approach" to the requirements for a medical screening examination, stabilization and transfer. I.G. Br. at 39, quoting Lopez-Soto at 174. The court further observed, however, that the stabilization provisions-

Lopez-Soto at 174 (emphasis added). The court also explained:

Id. at 175 (emphasis added). Thus, the court read the requirements for stabilization and transfer as applying only if the hospital determines--through a medical screening examination performed in the emergency department or some other means--that the individual has an emergency medical condition.⁽¹⁰⁾ Based on this reading, the court found that the district court had jurisdiction to consider a claim under EMTALA for violation of the stabilization and transfer requirements in the case of an infant born by cesarean section who emerged in severe respiratory distress, which presented an undisputed emergency medical condition.

However, as discussed above, the ALJ here found that Respondent was not negligent in not performing a medical screening examination which would have determined that L.A. had an emergency medical condition. Moreover, the ALJ found that the I.G. had not established that third trimester vaginal bleeding was necessarily an emergency medical condition. In the absence of any determination--through a medical screening examination or otherwise--that L.A. had an emergency medical condition, the stabilization and transfer requirements did not apply. Moreover, as just discussed, even if Respondent knew that L.A.'s condition constituted an emergency medical condition, it is clear from the ALJ's findings that L.A. left FRMC's emergency department before Respondent could reasonably have been expected to take any action consistent with the stabilization and transfer requirements.

Accordingly, we find that the ALJ did not err in not considering whether Respondent violated the stabilization and transfer requirements of section 1867.

3. Exceptions To Specific FFCLs

FFCL 3. The uncontested facts establish that [L.A.] was in FRMC for a total of six minutes, from 3:15 a.m. to 3:21 a.m.

FFCL 4. The uncontested facts establish that it took the paramedics no more than seven minutes to transport [L.A.] from FRMC to Catawba Memorial Hospital.

The I.G. took exception to these findings "because they are taken out of context and make inferences which the IG believes are untrue . . . ." I.G. Br. at 80. Specifically, the I.G. argued that "[t]he ALJ uses her conclusion that the paramedics may have been in the [emergency department] for six minutes as a basis to undermine the IG's assertion that Dr. Bowen failed to treat [L.A.] at FRMC. The ALJ finds that six minutes is such a short time and seems to accept Dr. Bowen's position that the opportunity to see the patient was necessarily taken away from him by the short time frame." I.G. Br. at 81. The I.G. asserted that, to the contrary, "[i]n emergency medicine, six minutes can be a very long time," and cited testimony to the effect that "time was of the essence in managing [L.A.]'s condition." Id., citing Tr. at 293 (testimony of Dr. Williams, who conducted the PRO review). Similarly, the I.G. argued that the ALJ emphasized that it took no more than seven minutes to transfer L.A. to Catawba "apparently to discount the delay that occurred as a result of Dr. Bowen's failure to treat [L.A.]." I.G. Br. at 82.

We see nothing in the ALJ Decision indicating that the ALJ viewed the fact that L.A. was transferred quickly to Catawba as in any way justifying the failure to provide a medical screening examination at FRMC. As the I.G. observed, however, the ALJ's finding that L.A. was in the emergency department for a total of only six minutes does figure prominently in the ALJ's ultimate conclusion that Respondent was not negligent with respect to any of the events which resulted in L.A.'s leaving FRMC's emergency department without having received a medical screening examination. See, e.g., ALJ Decision at 16-17, 20, 23. Nevertheless, the testimony cited by the I.G. that time was of the essence in treating L.A. does not compel a conclusion that Respondent was negligent, since the testimony does not address whether Respondent appropriately relied on the charge nurse to perform an initial assessment of L.A. The ALJ considered this question at length, stating in part:

ALJ Decision at 20. This testimony, which the ALJ noted was not contradicted by any expert testimony, constitutes substantial evidence in support of the ALJ's conclusion that Respondent was not negligent in not providing a medical screening examination (or otherwise intervening in L.A.'s care) during the six minutes that L.A. was in the FRMC emergency department.

The I.G. also noted that the time on the ambulance call report on which the ALJ relied for FFCL 3 is "hard to read" and that the paramedics testified that they thought they were in the emergency department for more than six minutes. IG Br. at 80. The I.G. cited to the testimony of Paramedic Wilmoth that "it seems like a lot longer" than six minutes that she and Paramedic Tanner were at FRMC (Tr. at 38), and the January 1998 declaration of Paramedic Tanner that L.A. "stayed at FRMC for approximately 10-12 minutes" (I.G. Ex. 3, at 2). Assuming that the I.G. was challenging the finding in FFCL 3 as factually incorrect, we conclude that the I.G.'s exception has no merit. The ALJ found that the ambulance call report was "more reliable than [Paramedic] Tanner's inconsistent recollections" (noting both her initial testimony that L.A. was at FRMC seven to ten minutes and her subsequent testimony that the ambulance call report reflected the time as six minutes and that she did not have the report with her when she signed the declaration). ALJ Decision at 8, n.9. The I.G. did not offer any reason why we should not defer to the ALJ's assessment of the reliability of Paramedic Tanner's testimony on this matter. Moreover, the testimony of Paramedic Wilmoth, cited by the I.G., as to how long it "seemed" they were at FRMC hardly constitutes a definitive statement that L.A. was at FRMC for more than six minutes. Furthermore, notwithstanding the I.G.'s observation that the ambulance call report is "hard to read," the report is clear as to both the arrival and departure times. Thus, there was substantial evidence in support of this FFCL.

We therefore sustain FFCLs 3 and 4.

FFCL 5. The uncontested facts establish that the paramedics transported [L.A.] to Catawba Memorial Hospital immediately after hearing the remarks made by Nurse Karen Chapman of FRMC's ED in an enclosed examination room, out of Respondent's presence.

FFCL 6. The uncontested facts establish that [L.A.] and the paramedics never spoke with Respondent during the time they were at FRMC; nor did they hear Respondent say anything.

FFCL 7. The uncontested facts establish that, on October 20, 1994, Respondent never addressed [L.A.]'s medical condition except for remarking in the ED staff's presence before her arrival on certain additional steps which may need to be taken at the ED for her evaluation or treatment because she was [a] Health Department patient instead of a patient of an obstetrician on the staff of FRMC.

FFCL 8. There is no testimony or allegation that

FFCL 9. Respondent never spoke about [L.A.] while she was in the ED.

The I.G. took the position that these FFCLs were not supported by substantial evidence. In essence, the I.G. disputed the finding implicit in these FFCLs that the impetus for L.A.'s departure from the emergency department was remarks made by the charge nurse when she was in the examination room with L.A. and the paramedics. The I.G. claimed that the evidence instead supported a finding that Respondent made statements that could be heard inside the examination room and that these statements, coupled with Respondent's failure to take any action (or to direct emergency department staff to take any action) to treat L.A., caused L.A. to leave the emergency department without having had a medical screening examination.

We find that the FFCLs are incorrect to the extent that they state that the facts were "uncontested" and we therefore conclude that the FFCLs should be modified to delete the word "uncontested." The I.G. adduced evidence (some of it even noted elsewhere in the ALJ Decision) that the I.G. argued would support contrary findings. However, the existence of this evidence is not a basis for reversing the FFCLs as the I.G. argued. The primary evidence on which the I.G. relied was a statement given by the charge nurse on November 2, 1994 in which she asserted that Respondent stood outside of the examination room and repeatedly stated that it would take at least an hour to get an obstetrician to see L.A., that someone would also have to be called for an ultrasound, and that L.A. would be seen faster at Catawba. Respondent Ex. 6, at 3. The ALJ specifically found that this statement was not credible, however. The ALJ Decision states in part:

ALJ Decision at 10. Thus, the ALJ not only found Nurse Chapman's statement not credible but also relied on the statements and testimony of the paramedics who appeared as witnesses before her, which constitute substantial evidence in support of her findings.⁽¹¹⁾

The I.G. also asserted that FFCLs 7 and 8 were in error because they failed to recognize Respondent's uncontested statements that, prior to L.A.'s arrival, he discussed his "differential diagnosis" (i.e., his tentative diagnosis of either placenta previa or abruptio placenta) with the nurse and told her that he could not offer L.A. the opportunity to go straight to labor and delivery. I.G. Br. at 78-79, citing I.G. Ex. 5, at 17, and Tr. at 462, 510. We agree that FFCL 7 should be modified to reflect that Respondent discussed his tentative diagnosis with the nurse, although this fact is in no way dispositive of the issues in the case.⁽¹²⁾ (That Respondent indicated that he suspected L.A. was suffering from either placenta previa or abruptio placenta does not establish that Respondent was negligent in not providing a medical screening examination or otherwise intervening in L.A.'s care immediately upon her arrival at FRMC's emergency department. As discussed earlier, the ALJ found that professional standards of practice did not preclude Respondent from allowing a nurse to briefly assess a patient with suspected placenta previa or abruptio placenta.) In our view, however, FFCL 7 need not be modified to reflect that Respondent told the nurse that L.A. could not go straight to labor and delivery since this is implicit in the FFCL's reference to "additional steps which may need to be taken at the [emergency department] . . . ." Moreover, we do not see any need to modify FFCL 8 since that FFCL refers to the absence of "explicit instructions" and the statements cited by the I.G. do not indicate that Respondent gave any explicit instructions.

We therefore sustain FFCLs 8 and 9, modify FFCLs 5 and 6 to delete the word "uncontested," and modify FFCL 7 to read as follows:

FFCL 10. For lack of adequate evidentiary support, I reject the I.G.'s contention that, even prior to [L.A.]'s arrival at FRMC, Respondent had formed and voiced his intent to withhold services from her.

FFCL 11. For lack of adequate evidentiary support, I reject the I.G.'s contentions that Respondent was responsible for having caused the violation of section 1867 of the Act by having made certain remarks to the ED staff before [L.A.'s] arrival.

The I.G. requested that these FFCLs be vacated since "[n]either of these findings, in and [of] themselves, were the basis of the IG's finding that Dr. Bowen violated the Act." I.G. Br. at 80. The I.G. in essence took the position that the ALJ had misunderstood the I.G.'s theory of the case and that the I.G. had never argued either that Respondent violated the Act because he intended to withhold treatment from L.A. based on her status as a Health Department patient or that Respondent violated the Act by causing the emergency department staff not to fulfill their responsibilities with respect to L.A.'s treatment. The I.G. argued the ALJ should have found instead that "Respondent should have taken an aggressive role to determine if [L.A.] had an emergency medical condition," and that since he did not, he was "personally liable" for the failure to screen, stabilize or arrange for the appropriate transfer of L.A. without regard to his motive. I.G. Br. at 29, 31.

We conclude that it is not a basis for reversing these FFCLs that they may address arguments not made by the I.G. As indicated in the prior section, the I.G. clearly sought to establish that Respondent made remarks, both prior to and after L.A.'s arrival at FRMC's emergency department, to the effect that it would be better for L.A. to be seen at Catawba. The ALJ could reasonably have believed that the I.G. was seeking to prove that these remarks were a basis for finding that Respondent violated the Act.⁽¹³⁾ Moreover, the I.G. was not prejudiced by the ALJ's consideration of these theories since the ALJ also considered the theory which the I.G. now claims was the sole basis for her determination that Respondent violated the requirements of section 1867.

We therefore sustain FFCLs 10 and 11.

FFCL 12. The IG did not sustain her burden of proving that Respondent was negligent with respect to any of the events which resulted in [L.A.]'s leaving FRMC's ED after only six minutes and without having received a complete medical screening examination required by section 1867 of the Act.

FFCL 13. No hospital policy or practice, no standard of professional conduct, and no circumstance of which he knew or should have known on the morning at issue necessitated a different course of action by Respondent.

FFCL 14. On the facts of this case, the "Captain of the Ship" theory does not render Respondent liable for the violation of section 1867.

FFCL 15. The I.G. lacked adequate basis for proposing to impose the CMP and exclusion remedies against Respondent.

Although the I.G. took exception to all of these FFCLs, her exception focused on FFCL 13. The I.G. maintained that, contrary to what the ALJ found, all of the relevant hospital policies required that Respondent have intervened in L.A.'s care when she arrived at the emergency department. Specifically, the I.G. contended that the ALJ "erroneously found that FRMC's Obstetrical policies failed to obligate Dr. Bowen to see [L.A.] at FRMC." I.G. Br. at 85. The I.G. further contended that "[i]n raising other hospital triage policies as a defense to his failure to act, the burden of persuasion shifts to Dr. Bowen," and that he "did not prove by a preponderance of the evidence that the policies he introduced applied either to this situation or to him." Id.

The applicable obstetrical policy is titled "Admission of Maternity Patient Greater Than 20 Weeks to the Emergency Department or to Labor and Delivery." The policy provided in relevant part:

I.G. Ex. 5, at 55. The I.G. asserted that the "plain language of the policy" required that, in the case of unassigned pregnant patients of greater than 20 weeks gestation, the emergency department physician, rather than the nurse, perform the triage. I.G. Br. at 87. The ALJ found, however, that--

ALJ Decision at 21-22. Thus, there was substantial evidence in support of the ALJ's finding regarding the interpretation of this policy.⁽¹⁴⁾

Moreover, even assuming that it was Respondent's burden to prove that other hospital policies did not require his immediate intervention in L.A.'s care, we see no basis for the I.G.'s assertion that Respondent did not meet this burden. The ALJ found that the "words" of FRMC's Policy Procedure Manual, in the sections titled "Emergency - Definition," and "Triage Nurse Role Description," indicate that "all patients coming to the [emergency department] should . . . be triaged by an [emergency department] nurse, whether or not they were 'assigned.'" ALJ Decision at 21. Since no evidence of an interpretation contrary to the plain language of this policy was adduced, no further proof was required.

The I.G. nevertheless noted that the ALJ Decision failed to consider FRMC's "Emergency Department Policy & Procedure," which stated in pertinent part that the medical screening examination "will be performed by the Emergency Department Physician and, when medically appropriate, shall include consultation with the on-call Specialist Physician." I.G. Br. at 91, quoting I.G. Ex. 5, at 57. This policy is of little significance here, however, since it does not address the question whether a nurse should perform an initial assessment before the physician performs the medical screening examination.

The I.G. also noted that Respondent had testified that, in a critical emergency, he would have gotten involved in the care of the patient immediately upon her arrival. The I.G. took the position that Respondent failed to show that L.A.'s case was not a critical emergency under FRMC's triage policies, which categorized "massive and uncontrolled hemorrhage" as needing immediate attention and categorized "vaginal bleeding in pregnancy" merely as requiring prompt care. The I.G. incorrectly places the burden of proof on Respondent when it was the I.G.'s burden to prove Respondent's negligence by a preponderance of the evidence. Moreover, the I.G.'s arguments are premised on an assumption that Respondent knew the extent of the bleeding and therefore knew that a critical condition existed. As discussed above, however, substantial evidence supports the ALJ's finding that Respondent did not know the extent of the bleeding. Moreover, neither Respondent's testimony nor the triage policies undercut the ALJ's broader finding in FFCL 13 that no circumstance of which Respondent knew or should have known on the morning at issue necessitated a different course of action by him.

For the reasons discussed above, we affirm the ALJ's determination that Respondent did not violate section 1867 of the Act and that the I.G.'s proposal to impose a civil money penalty on Respondent and exclude him from participation in the Medicare program must be rejected. In so doing so, we sustain each and every one of the ALJ's FFCLs, except for FFCLs 5, 6 and 7, which we modify as discussed above.

Judith A. Ballard

M. Terry Johnson

Donald F. Garrett
Presiding Board Member

1. The only matter before us is Respondent's liability under EMTALA since the I.G. entered into an agreement with the hospital to settle any claims she might have had against it arising out of this incident. See ALJ Decision at 15.

2. For privacy considerations, we refer to this individual by her initials.

3. For example, we do not address the I.G.'s argument that the ALJ should have found Respondent not credible as a witness since none of the findings to which the I.G. excepted were based on any testimony of Respondent that was disputed.

4. The I.G. also argued that L.A.'s condition constituted an emergency medical condition within the meaning of section 1867(e)(1)(B)(ii) of the Act. The I.G. cited the statement in Michael L. Burditt, M.D. v. U.S. Dep't of Health and Human Services, 934 F.2d 1362, 1370 (5^th Cir. 1991), that Congress intended in that section "to extend EMTALA's 'treat or transfer' protection to women in labor who have any complication with their pregnancies regardless of delivery imminency." Section 1867(e)(1)(B)(ii) defines the term "emergency medical condition" with respect to "a pregnant woman who is having contractions." The I.G. did not cite any evidence in the record that L.A. was having contractions or was otherwise in labor while she was at FRMC.

5. We therefore reject any suggestion by the I.G. that the ALJ should have found that L.A. had an emergency medical condition when she arrived at FRMC's emergency department because it was clear in hindsight that she had been suffering from abruptio placenta.

6. The I.G. also took the position that the ALJ erred as a matter of law in "[d]iscounting the PRO [p]hysician's [d]etermination" in his review reports that L.A. had an emergency medical condition. I.G. Br. at 47. However, even if the findings in these reports can be read as concluding that third trimester vaginal bleeding is an emergency medical condition (which on their face they do not), we conclude that the ALJ did not err in not relying on them. The statements were based on the PRO physician's review of the evidence provided to him regarding the case. These opinions do not have the same probative value as his subsequent testimony, which was given under oath and subject to cross-examination.

7. After discussing all the evidence and explaining specifically why she did not find the evidence on which the I.G. relied persuasive, the ALJ found that the extent of bleeding was not apparent to Respondent when L.A. presented at FRMC's emergency department. ALJ Decision at 17-19. Moreover, Respondent testified without contradiction that he was not told the extent of any bleeding prior to L.A's arrival. Tr. at 461, 518. Thus, contrary to the I.G.'s suggestion, the ALJ's finding regarding Respondent's lack of knowledge of the extent of bleeding is not inconsistent with the ALJ's prior statement that L.A. "was experiencing profuse vaginal bleeding" when the paramedics arrived at her home. ALJ Decision at 6.

8. The I.G. contended that the credibility of this witness "is subject to question as it relates to government enforcement of the Patient Anti-Dumping Statute . . . ," noting that he was "the most highly paid expert witness who testified in this case" and that he had testified that the I.G. has criminalized the "everyday practice of hospital-based medicine." I.G. Br. at 68. The I.G. did not dispute the witness' qualifications as an expert in emergency medicine, however, and the ALJ relied on his testimony as credible. The points raised by the I.G. are not a sufficient basis for us to conclude that the ALJ should have found this witness to be biased and not credible.

9. At the oral argument held by the Board at the I.G.'s request, the I.G. argued explicitly for the first time that, even if Respondent was not negligent in not performing (or taking steps to perform) a medical screening examination within the six minutes, he was negligent in not attempting to stop the paramedics from leaving the emergency department with L.A. According to the I.G., Respondent could have called out to the paramedics to stop. Tr. of February 23, 2000 oral argument at 36-37. We conclude that this argument has no merit. Respondent testified without contradiction that he was sitting facing away from the door, heard the door open, turned and saw the last paramedic going out the door, and got up and immediately headed for the door, only to have Nurse Chapman get in his way and engage him in conversation. Tr. 478, 513-514. The I.G. offered no evidence in the proceedings before the ALJ to establish that Respondent had a meaningful opportunity to stop the paramedics from leaving with L.A. or that a reasonable physician under these particular circumstances would have acted differently.

10. We note that Lopez-Soto is in accord with many other cases requiring detection of an emergency medical condition before the stabilization and transfer requirements become operative. See Respondent Br. at 41-42, citing Baber v. Hospital Corp. of America, 977 F.2d 872 (4^th Cir. 1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037 (D.C. Cir. 1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6^th Cir. 1990), and other cases.

11. The I.G. asserted that the ALJ improperly found Nurse Chapman's statement not credible as to some facts asserted and credible as to others and suggested that all findings based on her statement "be withdrawn from consideration as the ALJ did not find her credible." I.G. Br. at 67-68. However, we see no reason why the ALJ could not properly rely on those facts asserted in Nurse Chapman's statement that were corroborated by other testimony while still finding some parts of her statement not credible.

12. This fact is already reflected in the ALJ Decision at page 11.

13. In any event, we note that the I.G. now takes the position, with which Respondent agrees, that "[b]ad motive, or improper motive, is not an element of a cause of action under the Patient Anti-Dumping Statute and the IG need not prove it to establish Dr. Bowen's liability as a responsible physician." I.G. Br. at 56, citing Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (5^th Cir. 1994).

14. The I.G. cited the testimony of Dr. Bitterman that the policy as written required triage by the emergency department physician. I.G. Br. at 86, citing Tr. at 589. However, Dr. Bitterman did not profess any independent knowledge of how FRMC had interpreted its policy. Thus, his testimony on this point has little probative value.