Dickey v. Baptist Memorial Hospital-North MS
146 F.3d 262
5th Cir.
1998
Check Treatment

*2 BARKSDALE, Before BENAVIDES and DENNIS, Judges. Circuit BENAVIDES, Judge: Circuit appellant, Dickey, appeals The Lois granting Baptist court’s order Memo- district Hospital-North Mississippi summary rial judgment on her state-law claim. below, set For the reasons forth we reverse and remand.

I. Reggie On went to emergency room Memorial (“BMH”) in Ox- Hospital-North Mississippi ford, Mississippi, complaining pains. of chest physician employed by an ER BMH, taken for ordered be Jordan, problem. heart apparent an BMH, interpreted radiologist employed by revealing “questionable mass” lung, a BMH ra- in Mr. and diology report that a chest CT recommended performed. scan per- could be Before additional tests formed, family his he be requested that transferred Vet- (the Hospital “VA erans’ Administration Tennessee, Memphis, for fol- Hospital”) policy, low-up care. Pursuant to BMH spoke then called day” with Dr. the “officer Hospital, explain Mr. at the VA to to have him obtain consent condition transfer, obtaining approval After for to the VA Hos- BMH transferred pital. ER record from which was sent rays in event that accompa- by Dr. Lamb and prepared noted, them, failing diagnose Hospital, Dickey to the VA nied Mr. were taken at alia, x-ray, pa- following: “chest tumor

inter medi- in not chest, Hospital, mass on [questionable] ? thology right actually “physi- that were received under the records report,” cal right-radiological *3 category. The history physical” BMH. cian the ER record radiological report to which 27, 1996, grant- court the district On June time of Mr. Dick- available at the refers was summary judg- partial BMH’s motion for ed forwarded to the ey’s but was not transfer pur- brought claim and dismissed the ment parties Hospital. The

VA as time barred. On suant to EMTALA revealing ques- taken at 1996, 10, grant- district court September right lung for- on the tionable mass summary judgment motion for ed BMH’s Hospital. After the trans- warded neg- respect to Mrs. state-law fer, Hospital all medical undertook the VA 1996, 8, Mrs. ligence claim. On October fur- Dickey, and BMH had no care for Mr. interlocutory appeal with Dickey filed an involvement. ther from the spect to the dismissal of BMH 4, 1996, the district action. On November Hospi- Dickey arrived at the VA Mr. When judgment dismissing the ac- entered a tal, Hospital’s radiolo- Dempsey, the VA Hospital by reason of against tion the VA x-rays to gist, performed another set of chest 1997, 27, January this court settlement. On pain. the source of Mr. locate Dickey’s appeal for want of dismissed Mrs. film x-rays, which used a different These 19, By prosecution. order dated March BMH, apparent- technique than that used 1997, however, Mrs. this court reinstated questionable mass in ly not reveal the did against Dickey’s appeal BMH. lung. Fifteen months Mr.

later, lung Dickey diagnosed with was Dickey only appeal, On Mrs. 6, 1996, Dickey February cancer. On granting BMH court erred in the district result of the cancer. died aas summary judgment on Mrs. state- Dickey negligence claim. Mrs. has not law

n. dismissing appealed the district court’s order against BMH. her EMTALA claim November-6,1995, Dick- Mr. and Mrs. On against ey filed suit BMH and United III. (the Hospital) negligence for aris- States grant summary This court reviews the ing medical care. On out Mr. novo, death, 7, 1996, judgment applying the same stan de March after her husband’s Duffy v. complaint as the district court. See Dickey filed an amended dards Mrs. Prods., Inc., Leading Edge 44 F.3d 312 on behalf the administratrix of the estate and (5th Cir.1995). 56(c), summary Rule wrongful bene- Under of herself and all other death deposi Dickey judgment proper pleadings, “if the April Mrs. ficiaries. On tions, interrogatories, complaint, and admis amended in which answers filed a second affidavits, file, together negligently sions on employees that BMH she claimed any, is no issue as to show there failed to send the and/or moving party Hospital material fact and rays to the VA when judgment entitled to as a matter of law.” also claimed is was 56(c); Corp. see v. Ca failure to send the and Fed.R.Civ.P. Celotex that BMH’s trett, 317, 322, 2548, 2552, 106 S.Ct. radiology report constituted a violation of U.S. (1986). seeking party and Active 91 L.Ed.2d Emergency Medical Treatment (“EMTALA”), summary judgment carries the burden Act U.S.C. Labor 1395dd(c)(2)(C), demonstrating is an absence of requires § that all x- which non-moving party’s support the be sent with a evidence to rays and medical records at 2553. In Finally, case. See id. at 106 S.Ct. he is transferred. patient when summary judgment, a motion for Dickey claimed that inferences losing the court views the facts and the negligent in employees were duty “to communi- light ring hospital has from those facts to be drawn pertinent medical patient’s] all of [the cate to the non-movant. See Cole favorable most hospital.” Slip to the transferee conditions F.3d Indep. Sch. man v. Houston Dist. original). This op. (emphasis in the (5th Cir.1997). at 268 528, 538 based, part, deposi- on the conclusion was physi- the ER IV. who cian who treated Mr. any claim for To establish “relay physician has a testified that a plaintiff must Mississippi under receiving significant information to the 1) following the exis elements: prove the court, this According to the district doctor.” part of the defendant tence of satisfied when BMH transferred conduct; to a standard to conform “clearly put the report, ER 3) 2) duty; that the breach of that a breach *4 hospital on notice of the mass plain of duty proximate cause of was reaching In Dickey’s right lung.” Id. 4) damages to the injury; and tiffs however, conclusion, the district court this Buck Drummond v. plaintiff have resulted. specific steps account the failed to take into (Miss.1993); Barner ley, 627 So.2d by BMH hos- Dr. Lamb and other identified (Miss. Gorman, 605 So.2d 808-09 v. neces- personnel depositions in their pital 1992). sary satisfy duty of care. to this physician testifying to In addition A. duty “relay significant informa- has a to date, Mississippi has no doctor,” To testi- receiving of care owed specifically addressed practice” of BMH’s “standard fied that was transferring hospital patient to a with by a copies x-rays or of the to forward either rec patient’s respect to the transfer a hospital to which x-rays to the general, physicians that, ords. In al- He further “ ‘reason Mississippi have a to exercise customary to forward the though it was not ordinary in their treatment of and care’ lag able in its report of the time radiology because Drummond, 627 at 268. patients.” So.2d for- report a should be preparation, such ordinary constitutes “reasonable What warded'if available. fact any particular case is often a care” in Willard, Moreover, BMH nurse Nurse ordinarily be es question and specific must Dickey during his accompanied Mr. who testimony. through expert medical tablished Hospital, testi- BMH to the VA transfer from Stewart, id.; v. 680 So.2d Travis

See as a nurse her “standard of care” fied that (Miss.1996) (holding that medical x-ray x-rays required her to take by “medical must be established ready, her to the VA if it report, ordinary failed to use defendants] that the McGee, BMH’s Hospital. Finally, Loralei care”). usually Although this skill and Information, agreed in of Health Director plaintiff rely on her own must means x-rays were not deposition that if the her recog testimony, Mississippi law also expert forwarded, here at “someone down plaintiff medical-malpractice a nizes that a have made mistake.” a himself as “may utilize the defendant testimony, we uneontradicted this Given ” care.... proof of the standard of source minimum, a at a conclude Wilburn, 870 n. Meena So.2d as to whether material fact exists omitted). (Miss.1992) plaintiff A (quotation x-rays x-ray re- to transfer the needed testimony when may the defendant’s own use satisfy its Hospital in order port to the physician testifies] defendant [as “the ordinary care” duty to use “reasonable plaintiff way that the in such a clear standard reaching Dickey. In treatment of Mr. its demonstrating a deviation has little trouble conclusion, expressly note that we this we (citation omitted). Id. from that standard.” duty requires as concluding that this are that a transfer- Mississippi law case, matter of court con the district dissent,, ring hospital transfer cluded, that a transfer- as does the Rather, making copies record of that BMH has no hospital. reports to a transferee x-rays prior the transfer and that its legal Mississippi whether under Dickey’s x-rays ordinary care indicate that Mr. reasonable and records to use over one out for the first time obligation to transfer these rec were cheeked included the jury, year after he was transferred to VA. ultimately decided ords will testimony. hearing expert See Drum after Second, one at the VA she that no mond, at 268. 627 So.2d having x-rays and recall seen the BMH can indicating that no record exists

B. sup- Hospital. were received on port argument, of this relies a delineation of the “Given nurses, deposition testimony of two ER performed to be to adhere acts that needed that there was no record of who stated care, question of to the standard ceipt any x-rays, have occurred a breach of standard hospital. if received from another been inquiry focusing on factual wheth becomes a physician did the delineated acts.” er the Third, deposition points Drummond, 627 So.2d at 269. testimony of Dr. who testified not for there is no that BMH did patients would be redone on VA ward the if the from the transferor jury Consequently, if the concludes that *5 never received or if were of tal were provide reasonable and ordi BMH’s poor quality. x-rays good quality If ar- x- nary required BMH to forward the care Washington patient, a Dr. testified rived with ray report, then BMH would have breached x-rays not taken on the that new Dickey. of care to Mr. its body. part of the There is no real same x-rays good BMH dispute that the were addition, genuine conclude that a In we Thus, quality. Dickey argues, Mrs. because material fact exists as to issue of whether x-rays of the VA took new Dickey’s x-rays to the BMH forwarded Mr. upon his arrival' at the VA argues Hospital. BMH delivered VA jury reasonably Hospital, a could conclude x-rays points testimony to the of ER the x-rays the that BMH did not forward Willard, delivering nurse who recalled an Hospital. VA ray envelope hospital. Willard completed also transmission records which possi Even BMH concedes that one were sent to the VA. indicate inference to be drawn from the VA Hos ble testified, however, that she did not Willard pital’s ordering of chest is that the VA Dickey’s x-rays check to see that Mr. were x-rays. Hospital did not receive the any x- envelope whether there were or inferences must be Because reasonable addition, rays envelope. In BMH does favor, we conclude drawn Mrs. not that the records of another is a that she has demonstrated that there accidently transferred with Mr. fact as to genuine issue material Dickey. Hospi the BMH were sent to the VA Accordingly, find that response, Dickey argues tal. we district Mrs. support concluding her erred in that no issue of pieces of evidence number respect to whether position did not the x- material fact existed with that BMH forward First, rays Hospital. argues BMH breached its of care.1 she genuine "telephonic VA Dickey transfer” has been lost 1. Mrs. also that there is a Washington Hospital. fact as to whether Dr. Lamb issue of material The mere fact that Dr. Washington, Hospital's "officer told Dr. alleged phone conversa- does not remember the tion, however, day day” trans- on the itself, enough, by a is not to create ferred, questionable about the mass. In his de- genuine requires of material fact. Rule 56 issue testimony, specifically position stated Dr. Lamb summary judgment point party opposing that the questiona- that he told Dr. genuine evidence that creates a ble has no mass. Posey Skyline Corp., fact. See 702 of material conversation, present and the recollection of (7th Cir.1983). F.2d 105-06 recording Hospital's a standard form for such showing. necessary a ally to make such C. Infirmary Benevolent Palmer v. Anderson is next address whether We Ass’n, Drum (Miss.1995); 656 So.2d as to whether of material fact genuine issue mond, 627 So.2d at 270. duty proximately alleged breach of injuries. prove prox To case, caused Dickey argues Mrs. cause, some plaintiff must show imate x-rays and failure to forward the that BMH’s the defen between connection reasonable delayed of Mr. damage plain dant’s breach progressed until it had to an cancer Tabb, Burnham v. stage. support tiff has suffered. of her untreatable almost (Miss.1987). To survive deposi argument, So.2d relies plaintiff must make summary judgment, radiolo testimony Dempsey, of Dr. basis a reasonable showing that “affords gist After likely than testimony, agree it is more conclusion that we Dempsey’s for the testimony was a Dempsey’s of the defendant makes that the conduct that Dr. possibili the BMH x- the result. A mere that had he seen either in fact of clear cause Id. In a enough.” x-ray report,3 he would ty rays2 causation is not or the BMH of such probably this means that ordered additional tests malpractice have medical questionable “in mass. have revealed the produce must evidence plaintiff testimony creates a Dempsey’s further a better Dr. alleged malpractice, absence of regarding whether the likely not.” issue of fact more than probable, or result was x- Drummond, Lad revealed the BMH mass (quoting at 270 627 So.2d (Miss. ultimate rays developed into the cancer that Campbell, 515 So.2d ner v. 1987)). above, gener- ly caused Mr. death.4 expert As rays, ray report, R. at With With A: A: A: Yes. Q: A: A. Q: Q: Q: would you July, MR. DUNBAR: ray report neoplasm, films from scan was one old cian as choscopy. along 1992, you Yes. Yes. Well, Exactly Now, you If, So, Do Have How would respect well as respect you bronchoscopy, is that correct? had been do? }¡C recommended, '92, you agree 767. to this if Dr. you you [the call more I would have you x-ray? fact, done? the to BMH’s failure done and that reaches your [*] would have recommended to the failure have recommended have also seen this dictating had had hospital you way they had given this Objection, foundation. with what he x-rays] didn't. films sí! suspicious? describe that film available Dr. C.M. Jordan from Memorial testified: a CT scan this chest report made sure as follows: available to [*] recommended what did: report to forward prior [the to forward another thresh- found? [*] suspicious for x-ray report, and a bron- on that a clini- films, had come that a CT [BMH], you SR x-rays] a CT what from *6 ’92, the the 4.Dr. R. at 791-92. R. at A: A: A: Yes. A: A: A: Additional A: There is a Q: Q: Q: Q: Q: Q: whether or not from MR. scan at that 769-70. Dempsey testified: Yes. Possibly. mation. rospect, Probably. Right. Right. Right. ble mass And And Something like that. And A here? tionable mass in 1992 sumed More cer? Would Does that indicate to timeter or less? Now, Stage established DUNBAR:I high probability [BMH]? beginning you in that would be probable this I at information your opinion, you agree now that time? the one that wc call the high probability ... time you that we have all the survival bigger object than not? agree received have shown a cancer? the that this mass, to the form. introduced would that this true, regardless you larger film has was, the is that correct? that this rates for looking the chest CT was, actual cancer over of the infor- is one cen- questiona- been sub- fact, can- probably by Mrs. in ret- ques- fact, in Dick- noting questionable mass port, contends that Mrs. response, BMH along Hospital, ey’s right lung, to the VA proven causation because Dickey has not Hospi- telephone cancer should have call to the VA with BMH’s diagnosis of condition, tal, including ER notation record describing made based been mass, by Dr. Lamb to communication and the oral the location of satis-^ Dick- words, ar- Washington. other communicate all of fied BMH’s Hospital and gues negligence of VA conditions to the VA ey’s pertinent medical the true cause of its staff was Hospital, respectfully I dissent. law, how- delayed diagnosis. It is hornbook situation, was, in this BMH’s of care negli- ever, party’s subsequent another held, correctly “the the district court necessarily the chain of gence sever does [Dickey’s] pertinent all of to communicate Dickey had the burden to causation. Mrs. to the transferee medical conditions basis for the con- a reasonable demonstrate Hospital- Dickey Baptist Memorial tal”. BMH’s breach probable it is clusion that 672121, *6 Mississippi, 1996 WL North cause, cause, not the sole proximate awas (N.D.Miss.1996). emergency room re- The cancer. delayed of Mr. Hospital commu- port transferred Demp- respect, of Dr. Dickey’s pertinent medical con- all of nicated clearly sey establishes ditions, including questionable mass in the alleged failure to exists as to whether lung. report noted: “CxR [chest report proxi- forward the x-ray] Pathalogy [questionable] ? Rt. Chest — delayed diagnosis.5

mately caused Right-Radiologist’s report”. mass in V. majority correctly Additionally, as the con- cludes, genuine issue material there is no above, judg- the reasons set forth For treating as to whether Dr. court is REVERSED ment of the district fact physician at told to the district and this case is REMANDED day”, Hospital’s “officer proceedings not inconsistent court for further during telephone call questionable mass opinion. arranging for transfer REVERSED; REMANDED. BARKSDALE, RHESA HAWKINS deposition, agreed that he In his Judge, dissenting: Circuit care if he did would fall below his standard of physician about the mass on Hospital’s not tell the VA Baptist Memorial Because *7 that, (BMH) Dickey’s lung. Lamb testified emergency room re- transfer of the you? x-ray, during Stage phis run an diagnosed You would have and treated cancer diagnosed during lung you? cancer and treated versus wouldn't challenge Stage 3. did not Right. A: appeal. the district court or on before Q: And if that was run —excuse me, you x-ray didn't if the series was run and Moreover, contrary implies, what BMH 5. anything, a CT then there wouldn't be see scan, been told if he had there, done here at this Lamb was in the ER record or what Dr. what told Dr. tal? Washington, would not have he still Well, didn't have the films from down A: if I a CT made the or ordered scan: there, yes. they patient, Q: it is the If come Q: Further —let's make sure that we are clear emergency physician room of the VA of the Hospital you x-ray had run a chest here at on that —if to read the records to see what is, July history past true? man’s is that did, they you Right. just Came out like where A: results records, they pulmonary If had read this evidence of a didn’t see questionable mass, mass in have seen that he had a CT scan run? then there would be no radiologist’s right lung, according to the his you asking ignore COCKE: Are him MR. Oxford, findings in is that true? [BMH]? Right. [BMH], films from the indica- A: If I had the you have done at that And what would on them. tion for CT scan was relayed point information had been R.4 at 786-87. emergency from the room doctor Mem- with Dr. he his conversation findings in the what his

“reviewed the was,

presentation what we had found includ-

ing report. I reviewed the the chest [Dickey] I

lab work and told her that

quested and I he was admission felt stable And, if he come”.

for transfer wanted to

when asked “did inform Dr. mass on the situation?”, Dr.

well as the cardiac added.) “I did

replied, (Emphasis ”.

Accordingly, communicated medical pertinent conditions to the Therefore, as a matter summary

no breach of occurred and

judgment for BMH should affirmed. I

respectfully dissent. America,

UNITED STATES of

Plaintiff-Appellee, POLLANI,

James Andrew

Defendant-Appellant.

No. 97-40621. Appeals,

United States Court of

Fifth Circuit.