United States District Court, E.D. Missouri, Eastern Division
WILMA M. PENNINGTON-THURMAN, Plaintiff,
CHRISTIAN HOSPITAL NORTHEAST, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff Wilma
M. Pennington-Thurman for leave to proceed in forma
pauperis in this civil action. Upon consideration of the
financial information provided therein, the Court finds that
plaintiff is unable to pay the filing fee. The motion will
therefore be granted. In addition, the Court will partially
dismiss the complaint.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted. An action is frivolous if it
“lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An
action fails to state a claim upon which relief may be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
se complaints must be liberally construed. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). This means that
“if the essence of an allegation is discernible,
” the court should “construe the complaint in a
way that permits the layperson's claim to be considered
within the proper legal framework.” Solomon v.
Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
states she brings this action pursuant to the Emergency
Medical Treatment and Active Labor Act of 1986 (EMTALA), 42
U.S.C. § 1395dd, against Christian Hospital Northeast
and Derrick S. Lowery, M.D. Plaintiff avers that she and both
defendants are Missouri residents. She alleges as follows.
January 31, 2017 at 3:45 a.m., plaintiff arrived at Christian
Hospital Northeast via ambulance. She spent 90 minutes in the
emergency room where she was left “screaming for help,
” and was then moved to the waiting room when she
complained she did not feel well. (Docket No. 1 at 5).
Plaintiff writes “[t]he trauma of the pain and not
receiving an appropriate medical screening.”
Id. She alleges that Christian Hospital Northeast
and Dr. Lowery “failed to exercise the degree of skill,
care and learning possessed by other persons in the same
profession, ” and that Missouri law allows her to
recover from a health care provider for damages for personal
injury not more than $400, 000. She seeks that amount in
damages to compensate her for her pain and suffering, and
emotional distress that caused PTSD.
with plaintiff's complaint is a pleading titled
“Medical Malpractice Lawsuit Against Christian Hospital
Northeast and Derrick S. Lowery for Violation of the
Emergency Medical Treatment and Active Labor Act.”
Therein, plaintiff alleges, inter alia, that Dr.
Lowery reviewed her chart and failed to contact her private
oncologist. She also alleges Dr. Lowery and other medical
personnel tried to evaluate plaintiff and take a history from
her but could not do so because she was screaming and
thrashing, that she was given a shot and later apparently
evaluated but denied pain or discomfort. She alleges she was
later left screaming in her room, was told she would not be
admitted to the hospital, and was discharged.
March 4, 2019, defendant Christian Hospital Northeast filed a
waiver of service of process, and its answer or motion
pursuant to Rule 12 is due on May 3, 2019. The Court will
therefore take no action regarding defendant Christian
Hospital Northeast at this time. However, regarding defendant
Derrick Lowery, M.D., the Court will dismiss plaintiff's
claims that are predicated upon the EMTALA, and will decline
supplemental jurisdiction over any state law claims plaintiff
may or may not have.
the EMTALA's civil enforcement provision expressly
permits a private cause of action against a participating
hospital, it does not expressly permit a private cause of
action against an individual physician. See 42
U.S.C. § 1395dd(d)(2)(A) (“Any individual who
suffers personal harm as a direct result of a participating
hospital's violation of a requirement of this section
may, in a civil action against the participating
hospital, obtain those damages available for personal
injury under the law of the State in which the hospital is
located, and such equitable relief as is appropriate”)
(emphasis added). In King v. Ahrens, 16 F.3d 265,
270-71 (8th Cir. 1994), the Eighth Circuit addressed for the
first time the issue of whether the EMTALA's civil
enforcement provision permitted a private cause of action
against either a private clinic, or against an individual
physician working in a private clinic. In determining it did
not so permit, the King Court found it significant
that the EMTALA repeatedly used the terms
“hospital” and “hospital emergency
department, ” that the plain language of the
EMTALA's civil enforcement provision specifically
authorized a private cause of action only against a
“participating hospital, ” and that the statutory
definition of “participating hospital” did not
encompass an individual physician. Id. at 270-71.
The Court went on to note that there was “no basis on
which to imply a private cause of action against a physician,
” as “Congress expressly created a private remedy
which by its plain language is limited to a private cause of
action against the hospital.” Id. at 271.
the King Court cited, with approval, cases from
other courts that determined that the EMTALA did not permit a
private cause of action against an individual physician
working in a hospital. Id. (citing Delaney v.
Cade, 986 F.2d 387, 393-94 (10th Cir. 1993), Baber
v. Hospital Corp. of America, 977 F.2d 872, 877-78 (4th
Cir. 1992), and Helton v. Phelps County Regional Medical
Center,817 F.Supp. 789 (E.D. Mo. 1993). Finally, in
addition to Helton, another district court within
the Eighth Circuit determined that the EMTALA does not
provide a private cause of action against an individual
physician working in a hospital emergency room.
Heimlicher v. Steele,442 F.Supp.2d 685 (N.D. Ia.
2006). Based upon the foregoing, this Court concludes that
the Eighth Circuit would most likely conclude ...