Sheryl Smith v. Fresno Community Hospital and Medical Center

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SHERYL SMITH, No. 1:20-CV-01616-ADA-BAM 12 Plaintiff, ORDER GRANTING DEFENDANT FRESNO COMMUNITY HOSPITAL AND MEDICAL 13 v. CENTER’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) 14 FRESNO COMMUNITY HOSPITAL AND DISMISSING THE ENTIRE ACTION AND MEDICAL CENTER, et al., PURSUANT TO 28 U.S.C. § 1367 (c) AND 15 FED. R. CIV. P. 41(b) Defendants. 16 (ECF No. 27) [17] This matter is before the Court on Defendant Fresno Community Hospital and Medical [18] Center dba Clovis Community Medical Center’s (“Defendant” or “FCHMC dba CCMC”) motion [19] to dismiss. (ECF No. 27.) For the reasons explained below, the Court will grant Defendant’s [20] motion to dismiss and will dismiss, without prejudice, the remaining state law claims, pursuant to [21] 28 U.S.C. § 1367 (c)(3) and Rule 41(b) of the Federal Rules of Civil Procedure. [22] I. BACKGROUND [23] A. Procedural Background [24] This action arises from the alleged wrongful death of Mr. Bryson Ferguson (“decedent”), [25] caused by allegedly negligent medical treatment that failed to detect what proved to be a fatal [26] underlying condition. Decedent’s mother is Plaintiff, and she is the legal representative of his [27] estate. (ECF No. 23 at 1.) On November 13, 2020, Plaintiff filed her complaint as the successor [28] 1 in interest to the Estate of Bryson Ferguson. (ECF No. 1.) On December 7, 2020, Defendant filed 2 a motion to dismiss, and Plaintiff filed an opposition on January 5, 2021. (ECF Nos. 10, 12.) After 3 Defendant filed its reply on January 12, 2021, the Court granted Defendant’s motion to dismiss 4 with leave to amend on July 20, 2021. (ECF Nos. 15, 22.) On August 19, 2021, Plaintiff filed her 5 first amended complaint (“FAC”). (ECF No. 23.) The FAC asserts causes of action against five 6 separate defendants: FCHMC dba CCMC, Dr. Scott Ford, Chiropractic Health Center/Accident 7 Recovery Center, Reza Shakeri, and John Ferguson. (Id. at 2-3.) Plaintiff asserts claims for medical 8 negligence and wrongful death. (Id. at 8-10.) Plaintiff also brings claims for violations of the 9 Emergency Medical Treatment and Active Labor Act (“EMTALA”) and California Health and 10 Safety Code § 1317. (Id. at 10-12.) 11 On September 2, 2021, FCHMC filed a motion to dismiss Plaintiff’s EMTALA claim 12 pursuant to Rule 12(b)(6) and argued that, in the absence of that claim, this Court should decline to 13 exercise supplemental jurisdiction over Plaintiff’s state law claims brought against FCHMC. (ECF 14 No. 27-1 at 1-2.) On September 21, 2021, Plaintiff filed an opposition, and Defendant filed a reply 15 on September 7, 2021. (ECF Nos. 31, 32.) 16 B. Factual Background 17 The following facts are discernable from Plaintiff’s FAC. (ECF No. 23.) Defendant 18 FCHMC owns CCMC. (Id. at ¶ 4.) On October 26, 2019, decedent was in a car accident which 19 resulted in injuries to his left shoulder, arm, side, ankle, and the right side of his head. (Id. at ¶ 10.) 20 He lost consciousness after the collision for some time and was in an altered mental state when he 21 regained consciousness. (Id. at ¶ 14.) CCMC had knowledge of the decedent’s medical history of 22 epilepsy and seizures. (Id.) The decedent complained to the nurses and doctors of a headache and 23 pain on the right side of his face. (Id.) 24 Dr. Ford treated the decedent while at CCMC but failed to take proper precautions to 25 evaluate decedent’s neurological condition. (Id. at ¶¶ 16, 17.) Medical research and literature, 26 which Dr. Ford should have been aware of, documents the heightened risks that epileptics are prone 27 to suffer following a head injury, yet no special attention was given to decedent’s complaints. (Id. 28 at ¶ 16.) Decedent was discharged from the hospital later that day on October 26, 2019, when Dr. 1 Ford considered him to be stable and instructed him to consult a doctor if any symptoms developed 2 following his discharge from the hospital. (Id.at ¶ 18.) Decedent followed up twice with a medical 3 provider after the accident. (Id. at ¶ 20.) On November 21, 2019, decedent died due to a 4 breakthrough seizure. (Id. at ¶¶ 3, 22.) Plaintiff alleges the decedent received inappropriate 5 medical emergency screening compared to what similarly situated patients in his position have 6 received and had he received the medically appropriate screening, the decedent’s life would not 7 have ended when it did. (Id. at ¶ 24.) 8 II. LEGAL STANDARD 9 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency 10 of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 11 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient 12 facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 , 13 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the claim 14 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) does not 15 require detailed factual allegations, a plaintiff is required to allege “enough facts to state a claim 16 for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); 17 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “A claim has facial plausibility when the plaintiff 18 pleads factual content that allows the court to draw the reasonable inference that the defendant is 19 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . In determining whether a complaint 20 states a claim on which relief may be granted, the court accepts as true the allegations in the 21 complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King 22 & Spalding, 467 U.S. 69, 73 (1984). It is inappropriate to assume that the plaintiff “can prove facts 23 that it has not alleged or that the defendants have violated the . . . laws in ways that have not been 24 alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 25 519, 526 (1983). 26 III. DISCUSSION 27 1. Plaintiff fails to allege a plausible failure to screen claim under EMTALA. 28 To state a claim that Defendant failed to properly screen a patient under requirements of 1 EMTALA, Plaintiff must allege that: “(1) the patient had an emergency medical condition; and (2) 2 the hospital did not screen the patient in the same way it screens other patients presenting with 3 similar symptoms.” McClure v. Parvis, 294 F.Supp.3d 318, 324 (E.D Pa. 2018). The screening is 4 meant to determine “whether or not an emergency medical condition . . . exists.” Jackson v. East 5 Bay Hosp., 246 F.3d 1248 , 1254 (9th Cir. 2001). EMTALA defines an emergency medical 6 condition as follows: A medical condition manifesting itself by acute symptoms (including severe [7] pain) such that the absence of immediate medical attention could reasonably be 8 expected to result in (i) placing the health of the individual . . . in serious jeopardy, (ii) serious impairment of bodily functions, or (iii) serious dysfunction 9 of any bodily organ or part . . . . 10 42 U.S.C. § 1395dd. 11 In FCHMC dba CCMC’s second motion to dismiss, Defendant argues that Plaintiff cannot 12 establish a plausible EMTALA failure to screen claim. (ECF No. 27 at 5.) Defendant concludes 13 that the FAC insufficiently shows that decedent had an “emergency medical condition” under 14 EMTALA, highlighting the following allegations concerning decedent’s hospitalization: 15 “[Decedent] did not receive a screening examination that addressed his probable post-collision 16 neurological symptoms as compared to pertinent emergency policies and protocols in effect at the 17 time . . . . [Decedent] was also exhibiting symptoms clearly suggestive of a life-threatening 18 neurological condition.” (ECF No. 23 at ¶ ¶ 38, 40 (emphasis added).) Defendant further notes 19 that no facts establish that decedent was suffering from an emergency medical condition in the 20 hospital between the time of his discharge and his death. (ECF No. 27 at 6.) Rather, the facts 21 indicate that decedent had a non-serious, non-emergency diagnosis at the time of discharge from 22 Defendant. (Id.) 23 Defendant largely relies on Eberhardt v. City of Los Angeles, 62 F.3d 1253 (9th Cir. 1995), 24 to argue that Plaintiff fails to allege an emergency medical condition under EMTALA. There, the 25 court held that the hospital did not violate EMTALA when a police officer fatally shot the patient 26 thirty hours after discharge because the time lapse suggests that the patient’s possible suicidal 27 condition developed after release. Id. at 1258 . Even though the hospital had knowledge of the 28 patient’s psychological history, suggesting a suicidal disposition, the patient had reduced the 1 likelihood of any emergency medical condition when he signed the patient instruction sheet, which 2 indicated his agreement to seek follow-up care at a treatment center. Id. The court reasoned that 3 “EMTALA does not require physicians to detect medical conditions that are not manifested by 4 acute and severe symptoms, nor those that do not require immediate medical attention to prevent 5 serious bodily injury.” Id. at 1257 . The court stated that the hospital’s failure to detect the 6 decedent’s alleged suicidal tendency may be actionable under state medical malpractice law, but 7 not under EMTALA. Id. at 1258 . 8 Similarly, decedent’s alleged neurological condition related to the breakthrough seizure that 9 caused his death appears to not have been an emergency medical condition that required immediate 10 medical attention while under Defendant’s care, given the time lapse between his discharge from 11 Defendant and his death around 25 days later. The time lapse suggests that decedent’s alleged 12 neurological condition arose well after he had been discharged, and that he did not require 13 immediate treatment for the condition while he was in the hospital. Decedent’s attending physician 14 instructed him to follow up with a physician or return to CCMC if symptoms developed like the 15 physician in the Eberhardt case. (ECF No. 23 at ¶ 18.) Therefore, the Court finds that Plaintiff 16 fails to allege adequately an emergency medical condition for his EMTALA failure to screen claim. 17 Defendant further argues that aftercare instructions and follow-up policies are not screening 18 policies under EMTALA. (ECF No. 27 at 9.) The court in Guzman v. Memorial Hermann Hospital 19 System, 637 F.Supp.2d 464 (S.D. Tex. 2009), held that aftercare and follow-up policy is not an 20 EMTALA screening policy. Id. at 497 . The court reasoned that aftercare and follow-up policy is 21 not used to determine the existence of an emergency medical condition during the screening 22 process. Id. at 498 . Rather, the policy exists to help physicians meet the standard of care, which is 23 an element of a state malpractice claim, not an EMTALA claim. Id. Therefore, Defendant contends 24 that aftercare instructions and follow-up policies are not screening policies under EMTALA, 25 undermining Plaintiff’s argument that Defendant failing to provide concussion aftercare 26 instructions constitutes a failure to screen. 27 In response, Plaintiff argues that inappropriate medical care of an emergency patient may 28 constitute both a medical malpractice and an EMTALA claim. (ECF No. 31 at 8. (citing Gatewood 1 v. Wash. Healthcare Corp., 933 F.2d 1037 , 1041 (D.C. Cir. 1991))). Plaintiff also argues that a 2 mere cursory screening does not comply with EMTALA’s appropriate screening requirement, 3 citing to Correa v. Hospital San Francisco, 69 F.3d 1184, 1194-1196 (1st Cir. 1995). (ECF No. 4 31 at 10.) Plaintiff contends that an appropriate screening examination under EMTALA must be 5 tailored to detect whether a patient’s presenting symptoms indicate an emergency. (Id. (citing to 6 Jackson v. E. Bay Hosp., 246 F.3d 1248 , 1254-56 (9th Cir. 2001))). 7 In Gatewood, the court held that the malpractice or negligence standard cannot be 8 incorporated into 28 U.S.C. § 1395dd, the statutory authority for EMTALA actions. Gatewood, 9 933 F.2d at 1041. The court reasoned that although there may be some areas of overlap between 10 federal and state causes of action, “most questions related to the adequacy of a hospital’s standard 11 screening and diagnostic procedures must remain the exclusive province of local negligence law.” 12 Id. (emphasis added). 13 Like Gatewood, the Court finds that Plaintiff’s EMTALA allegations overlap with her state 14 causes of actions, and Plaintiff’s allegations more adequately address state causes of actions than 15 the EMTALA cause of action. Plaintiff alleges that despite decedent’s documented epilepsy, 16 history of seizures, severity of the accident, and his loss of consciousness, “Defendant failed to 17 examine, diagnose, and treat [decedent’s] head and brain trauma post-collision.” (ECF No. 23 at ¶ 18 16.) Plaintiff further alleges that, in violation of “the applicable standards of care,” “[Decedent’s] 19 staff health care providers should have consulted a neurology specialist regarding [decedent’s] 20 symptoms, and they also should have ordered . . . imaging studies that would have enabled them to 21 ascertain the post-traumatic condition of his brain.” (Id. at ¶ 17.) These allegations are not 22 attributable to Plaintiff’s failure to screen claim because Defendant, based on the factual 23 allegations, did, in fact, screen decedent. It appears, instead, that Plaintiff takes issue with the 24 adequacy and standard of the screening, which is governed by state law, not EMTALA. 25 In Correa, the court held that EMTALA does not create a cause of action for medical 26 malpractice. Correa, 69 F.3d at 1192 . “[A] refusal to follow regular screening procedures in a 27 particular instance contravenes the statute, . . . , but faulty screening, in a particular case, as opposed 28 to disparate screening or refusing to screen at all, does not contravene the statute.” Id. at 1192-93 . 1 In Jackson, the court held that providing medically inadequate screening examinations and failing 2 to order additional tests does not violate EMTALA’s screening requirements. Jackson, 246 F.3d 3 at 1255. The court held that a hospital only must provide a screening examination that is 4 comparable to that offered to other patients with similar symptoms. Id. (citing Marshall v. E. 5 Carroll Parish Hosp. Serv., 134 F.3d 319, 323-24 (5th Cir. 1998) (“[A] treating physician’s failure 6 to appreciate the extent of the patient’s injury or illness . . . may constitute negligence or 7 malpractice, but cannot support an EMTALA claim for inappropriate screening . . . .”); Summers 8 v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1139 (8th Cir. 1996) (holding that instances of 9 negligence in the EMTALA screening or diagnostic process, or of mere faulty screening, are not 10 actionable under EMTALA)). The Jackson court recognized that EMTALA does not require a 11 hospital to ensure medically adequate examinations and that, instead, the act’s purpose was to limit 12 hospitals from refusing to treat patients who were not covered by insurance or who could not 13 otherwise pay for medical services. Jackson, 246 F.3d at 1256; see also Lopez v. Contra Costa 14 Reg’l Med. Ctr., 903 F.Supp.2d 835, 838 (N.D. Cal. 2012) (“Congress passed EMTALA, also 15 known as the ‘Patient Anti-Dumping Act,’ to prohibit hospital emergency rooms from refusing to 16 treat indigent and uninsured patients or transferring patients to other hospitals without first 17 stabilizing their condition.”). 18 Similar to Correa and Jackson, the Court finds that Plaintiff alleges a faulty screening claim, 19 rather than a refusal to follow EMTALA screening procedure claim. As noted above, a faulty 20 screening claim does not contravene EMTALA. The decedent was ultimately discharged with non21 serious diagnoses, prescribed pain relievers, and instructed to follow up with a physician or return 22 to Defendant if symptoms developed. (ECF No. 23 at ¶ 18.) Plaintiff does not plead that Defendant 23 failed to screen decedent under EMTALA. Instead, Plaintiff pleads that the screening was 24 inadequate, which does not violate EMTALA according to Ninth Circuit precedent. See Jackson, 25 246 F.3d at 1255. The decedent, under Defendant’s instruction, even followed up with a medical 26 provider twice after the motor vehicle accident. (Id. at ¶ 19.) The Court finds that Defendant did 27 not refuse to treat and screen decedent, which aligns with the purpose of EMTALA. As Plaintiff 28 pleads, the Court finds no plausible EMTALA claim based on failure to screen. 1 2. Plaintiff fails to allege a plausible disparate treatment claim under EMTALA. 2 In the previous order granting Defendant’s first motion to dismiss, the Court separately 3 addressed Plaintiff’s disparate treatment claim under EMTALA. (ECF No. 22 at 10.) The Court 4 found that Plaintiff’s allegations were conclusory and did not provide any facts supporting or 5 explaining in what way decedent received different treatment from other similarly situated patients. 6 (Id.) Based on Plaintiff’s original complaint, Plaintiff simply alleged no facts which if proven 7 would demonstrate that another patient in decedent’s situation or presenting his symptoms would 8 have received different treatment or that the hospital violated its own screening procedures in 9 connection with his treatment. (Id.) 10 In the second motion to dismiss, Defendant argues that Plaintiff’s allegations still fail to 11 establish a claim for disparate screening. (ECF No. 27 at 7.) Plaintiff alleges that CCMC had an 12 emergency protocol for patients who had a history of a motor vehicle accident that resulted in a 13 loss of consciousness, which requires all patients to receive a neurological assessment including 14 brain imaging. (ECF No. 23 at ¶ 19.) Plaintiff also alleges that similarly situated patients are 15 supposed to receive concussion aftercare instructions and instructions to follow-up with another 16 provider promptly if symptoms worsen or persist. (Id.) Defendant argues that Plaintiff conflates 17 the decedent’s history of a motor vehicle accident with a loss of consciousness at the scene of the 18 accident and his history of seizures with “symptoms” under EMTALA. (ECF No. 27 at 8.) In other 19 words, Defendant argues that decedent’s injuries and medical history are not symptoms for 20 purposes of EMTALA. (Id. (citing to Reynolds v. Maine General Health, 218 F.3d 78, 81-82 (1st 21 Cir 2000))). 22 In Reynolds, the court held that the meaning of “symptom,” does not include one’s family 23 history of a certain medical condition, because the statutory text or purpose of EMTALA and case 24 law do not support such a meaning of “symptom.” Reynolds¸ 218 F.3d at 81 . The symptoms must 25 be acute such that the absence of immediate medical attention could result in danger to the health 26 of the patient. 42 U.S.C. § 1395dd (emphasis added). The decedent was in a car crash, and he was 27 admitted to the defendant hospital to address various injuries, including several fractures of bones. 28 Reynolds, 218 F.3d at 79 . The defendant hospital’s physicians determined that the decedent 1 required surgery and conducted multiple surgeries on the decedent. Id. at 80 . Almost two weeks 2 later, after his discharge, the decedent had died of a massive pulmonary embolism that emanated 3 from deep veinous thrombosis (“DVT”) at the fracture site of his right leg, which had not been an 4 acute symptom at the time of the initial screening after the car accident. Id. The plaintiff argued 5 that the defendant failed to screen for DVT and failed to stabilize the decedent for DVT prior to 6 discharge, violating EMTALA. Id. The court disagreed with the plaintiff because the court found 7 that the decedent receiving treatment is a prima facie showing that EMTALA was satisfied. Id. at 8 83. The court further argues that to interpret EMTALA to encompass non-acute symptoms that do 9 not require immediate medical attention is the plaintiff’s attempt to bring a malpractice standard 10 into the interpretation and application of the statute. Id. at 84 . Therefore, Defendant argues that 11 “symptoms,” for the purposes of the screening procedure for an emergency medical condition, does 12 not include one’s family history of a certain medical condition or other similar histories that may 13 be aggravated by the emergency medical condition. 14 Similarly, the Court finds that Defendant did not need to consider decedent’s history to 15 screen for an emergency medical condition during his hospitalization because medical histories are 16 not acute symptoms that require immediate medical attention. As a result, Plaintiff does not allege 17 that Defendant disparately treated Plaintiff in comparison to other similarly situated patients. 18 Plaintiff’s opposition is also silent on the issue of disparate treatment like her opposition to the first 19 motion to dismiss. (See ECF Nos. 12, 31.) Therefore, the Court finds that Plaintiff fails to allege 20 a plausible disparate treatment claim, warranting dismissal of the EMTALA claim. 21 3. Plaintiff fails to allege a plausible failure to stabilize claim under EMTALA. 22 In this Court’s order granting Defendant’s first motion to dismiss, the Court held that 23 Plaintiff had not alleged sufficient facts to show that Defendant failed to stabilize decedent’s 24 emergency. (ECF No. 22 at 8.) The Court found that Plaintiff provided no factual allegations 25 explaining why or how the screening examination of decedent was cursory and not in line with 26 pertinent emergency policies. (Id.) Furthermore, the Court noted that even if Defendant failed to 27 properly diagnose decedent, it would not alone provide grounds for finding a violation of 28 EMTALA. (Id. (citing Jackson, 246 F.3d at 1257)). 1 In its second motion to dismiss, Defendant argues that because Plaintiff still fails to allege 2 decedent’s emergency medical condition under EMTALA, she also fails to trigger the duty to 3 stabilize decedent. (ECF No. 27 at 10.) A hospital’s duty to stabilize a patient pursuant to 4 EMTALA arises only once the hospital detects an emergency medical condition. Jackson, 246 5 F.3d at 1254-55. Defendant emphasizes that Plaintiff must show that an emergency medical 6 condition existed at the time of decedent’s discharge. (ECF No. 27 at 10. (citing to Reynolds v. 7 MaineGeneral Health, 218 F.3d 78, 85 (1st Cir. 2000))). Defendant notes that Plaintiff alleges that 8 the hospital screened decedent and released him once he was deemed stable, suggesting no failure 9 to stabilize on part of Defendant. (Id. (citing to ECF No. 23 at ¶ 18)). Defendant further argues 10 that Plaintiff’s contention that Defendant should have taken steps beyond what is required under 11 EMTALA is a medical negligence claim, not a claim under EMTALA. (Id.) 12 In her opposition, Plaintiff states that “nowhere in either the original or First Amended 13 Complaint is a stabilization claim even alleged,” which suggests that Defendant did not fail to 14 stabilize decedent. (See ECF No. 31 at 7 n.4.) Plaintiff further contends that the same reason for 15 decedent’s hospitalization does not need to be present at the time of the EMTALA violation. (Id. 16 at 11.) Plaintiff argues that many cases have involved screening violations that led to the non17 detection of a condition that led to other conditions that caused injury or death, citing to only one 18 case’s fact pattern and not the court’s analysis. (Id. (citing Hoffman v. Tonnemacher, 593 F.3d 908 , 19 910 (9th Cir. 2010))). In Hoffman, however, the court did not hold that the defendant hospital 20 committed a screening violation under EMTALA. Hoffman, 593 F.3d at 909 . Rather, the court 21 held that the district court did not abuse its discretion when it entertained successive motions for 22 summary judgment following a mistrial concerning an EMTALA claim. Id. In fact, Plaintiff fails 23 to cite to any legal authority would support faulting Defendant with failing to screen or stabilize 24 decedent’s alleged emergency medical condition that led to his death 25 days after discharge from 25 the hospital. Therefore, the Court dismisses Plaintiff’s failure to stabilize claim. 26 4. Plaintiff fails to allege plausible causation to establish liability under EMTALA. 27 “Any individual who suffers personal harm as a direct result of a participating hospital’s 28 violation of a requirement of this section may, in a civil action against the participating hospital, 1 obtain those damages available for personal injury . . . .” 42 U.S.C. § 1395dd(d)(2)(A) (emphasis 2 added). In other words, Plaintiff must allege plausible causation between Defendant’s alleged 3 EMTALA violations and decedent’s personal harm or death. 4 In the second motion to dismiss, Defendant argues that Plaintiff fails to allege that 5 decedent’s death or further injuries after the motor vehicle accident was a direct result of 6 Defendant’s failure to screen or stabilize before discharge. (ECF No. 27 at 11.) Furthermore, 7 Defendant highlights that decedent’s death certificate indicates that the cause of death is a “probable 8 breakthrough seizure [sic],” but does not indicate that it occurred while decedent was in 9 Defendant’s emergency department following the motor vehicle accident on October 26, 2019.1 10 (Id.) Overall, Defendant contends that decedent’s fatal seizure did not occur until 25 days after 11 discharge, which suggests that he did not need immediate treatment under EMTALA and his 12 probable breakthrough seizure is not a direct result from Defendant’s alleged EMTALA violations. 13 (Id.) 14 In response, Plaintiff argues that the Court may not determine whether the FAC adequately 15 alleges causation because the parties have not had the benefit of any discovery or expert testimony. 16 Plaintiff relies on In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1057 (9th Cir. 2008). In re 17 Gilead concerns a securities fraud action, where “loss causation” is an element of the claim therein. 18 In re Gilead, 536 F.3d at 1055 . However, “loss causation” is not the same as causation in the 19 context of an EMTALA claim. To establish loss causation in a securities fraud action, the plaintiff 20 must demonstrate a causal connection between the deceptive acts that form the basis for the 21 securities fraud claim and the injury suffered by the plaintiff. Id. at 1055 . For EMTALA claims, 22 Plaintiff must demonstrate that the decedent’s alleged personal harm or death must be a direct result [23] 24 1 Along with its motion to dismiss, Defendant files a request for judicial notice of decedent’s death certificate. (See ECF No. 27-2.) Rule 201 of the Federal Rules of Evidence provides that the Court [25] “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined [26] from sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b). A death 27 certificate is a public record of which a court may take judicial notice. People v. Terry, 38 Cal.App.3d 432, 439 (1974) (citing Ellenberger v. City of Oakland, 76 Cal.App.2d 828 (1964)). 28 The Court takes judicial notice of the decedent’s death certificate. 1 of Defendant’s violation of EMTALA. Therefore, the Court declines to apply the rationale in In re 2 Gilead to this case. 3 Plaintiff further argues that an EMTALA screening violation occurs when Defendant fails 4 to screen for an emergency condition that “may indicate an immediate and acute threat to life,” 5 rather than a harm that is, in fact, immediate at the time of hospitalization. (ECF No. 31 at 11. 6 (citing to Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 652 (E.D. Pa. 2010) (citing Correa, 69 7 F.3d at 1193))). In Byrne, the court found that lengthy emergency room delays give rise to an 8 EMTALA screening claim because so delayed or paltry screenings can constitute a denial of an 9 appropriate medical screening examination. Byrne, 684 F.Supp.2d at 652 . Here, there is no 10 indication that Defendant was significantly delayed in attending to decedent because the motor 11 vehicle accident occurred at or around 6:00 a.m. on October 26, 2019, and Defendant admitted 12 decedent at approximately 7:11 a.m. (ECF No. 23 at ¶¶ 10-13.) As Plaintiff acknowledges in her 13 FAC, decedent was in a stable condition when Defendant discharged him from the emergency 14 department because he was not seizing at the time of discharge and decedent followed up with a 15 medical provider twice after the incident. (Id. at ¶¶ 18, 20.) The decedent’s breakthrough seizure 16 did not occur until November 21, 2019, which was 25 days after his discharge from Defendant. 17 (Id. at ¶ 3.) The Court finds that Plaintiff’s allegations demonstrate that decedent’s alleged 18 neurological condition arose after he had been discharged. Consequently, Plaintiff pleads that 19 decedent did not require immediate treatment for the alleged emergency medical condition while 20 he was at the hospital. Therefore, the Court finds that Plaintiff fails to allege an EMTALA claim 21 due to lack of causation. 22 5. The Court denies Plaintiff leave to amend her complaint. 23 Generally, “[c]ourts are free to grant a party leave to amend whenever ‘justice so requires,’ 24 and requests for leave should be granted with ‘extreme liberality.’” Moss v. U.S. Secret Serv., 572 25 F.3d 962, 972 (9th Cir. 2009). There are several factors a district court considers when deciding 26 whether to grant leave to amend, including undue delay, the movant’s bad faith or dilatory motive, 27 repeated failure to cure deficiencies by previously allowed amendments, undue prejudice to the 28 opposing party, and futility. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) 1 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Of the Foman factors, the court should 2 particularly consider prejudice to the opposing party. Id.; Eminence Cap., LLC v. Aspeon, Inc., 316 3 F.3d 1048, 1052 (9th Cir. 2003). “[L]eave to amend should be denied when the plaintiff could not 4 amend the complaint to state a viable claim without contradicting the complaint’s original 5 allegations.” B&G Foods N. Am., Inc. v. Embry, 2:20-cv-00526-KJM-DB, 2022 WL 16702141 , at 6 *8 (E.D. Cal. Nov. 3, 2022) (citing Garmon v. Cnty. of L.A., 828 F.3d 837, 846 (9th Cir. 2016)). 7 Here, the Court finds that even if Plaintiff were to add more specificity to the factual allegations, 8 the EMTALA claim could not be cured by amendment. 9 Applying the third and fifth Foman factors to this case, the Court finds that it would be 10 futile to grant Plaintiff leave to amend her FAC. The Court granted Plaintiff leave to amend the 11 original complaint, following the order granting Defendant’s first motion to dismiss, and Plaintiff 12 subsequently filed her FAC. Plaintiff submitted two substantially similar complaints alleging 13 substantially similar theories and introducing no new theories, which suggests that Plaintiff had 14 two chances to cure pre-existing deficiencies. See Eminence Capital, LLC, 316 F.3d at 1053. If 15 granted leave to amend, the Court finds that Plaintiff may not add factual allegations to plead 16 sufficiently her EMTALA claim. The Court highlights three specific findings, among others in this 17 order, to demonstrate the futility of granting leave to amend. First, Plaintiff fails to allege an 18 emergency medical condition, which is one of the essential elements of an EMTALA claim. The 19 time lapse between decedent’s discharge from Defendant on October 26, 2019, to his death on 20 November 21, 2019, undermines the plausibility of direct causation between the alleged EMTALA 21 violations and decedent’s death and the plausibility an emergency medical condition based on acute 22 symptoms. Plaintiff’s alleged symptoms that decedent suffered, particularly his history of epilepsy 23 and seizures, do not constitute acute or severe symptoms that attribute to an emergency medical 24 condition. Second, the time lapse also indicates that if there was an emergency medical condition 25 at the time of decedent’s discharge, Defendant had stabilized such condition prior to discharge.2 [26] 2 In her opposition to the second motion to dismiss, Plaintiff fails to address a multitude of 27 Defendant’s arguments, including the failure to stabilize claim, and lacks citations to legal authority to support the plausibility of her claims, further supporting the futility of granting leave to amend. 28 (See ECF No. 31.) 1 Based on the aftercare instructions provided to decedent at discharge, decedent consulted with 2 medical providers twice after discharge, further attenuating the plausibility of an emergency 3 medical condition or an EMTALA violation. Third, Plaintiff’s allegations of inadequacy or 4 standard of care violations during Defendant’s screening procedures of decedent presents a medical 5 negligence claim, not an EMTALA claim. Even if Plaintiff were granted leave to amend, any 6 additional allegations are likely to contradict the FAC. 7 Finally, considering the first and fourth Foman factors, the Court recognizes that this matter 8 was filed more than two years ago, and that Defendant filed its second motion to dismiss in 2021. 9 The substantial delay in this case has likely prejudiced both parties, but that delay is attributable to 10 the Court alone. However, granting leave to amend would be futile given that Plaintiff cannot cure 11 the deficiencies with respect to her EMTALA claim. Therefore, the Court denies Plaintiff leave to 12 amend. 13 6. The Court dismisses, without prejudice, the remaining state law claims. 14 The Court may decline to exercise supplemental jurisdiction over a claim if “(1) the claim 15 raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim 16 or claims over which the district court has original jurisdiction, (3) the district court has dismissed 17 all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are 18 other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367 (c) (emphasis added). A 19 court may decline to exercise supplemental jurisdiction over the remaining state law claims when 20 the federal claim has been disposed of on the merits. Baker v. Adventist Health, Inc., 260 F.3d 987 , 21 997 (9th Cir. 2001) (holding that the district court did not abuse its discretion when it dismissed the 22 remaining state law claims after deciding the federal EMTALA claim on its merits). According to 23 Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails . . . to comply with these 24 rules . . . , a defendant may move to dismiss the action or any claim against it. Unless the dismissal 25 order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule— 26 except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19— 27 operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). 28 Here, the Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining 1 | state law claims because the Court dismisses Plaintiff's EMTALA claim, which is the only claim 2 | over which it has original jurisdiction. Because Defendant moves for dismissal, the Court 3 | dismisses, without prejudice, the remaining state law claims based on 28 U.S.C. § 1367 and Rule 4 41(b). 5 IV. CONCLUSION AND ORDER 6 Accordingly, 7 1. Defendant’s motion to dismiss Claim 3, (ECF No. 27), is GRANTED; 8 2. Plaintiff is DENIED leave to amend her complaint; 9 3. The Court DISMISSES, without prejudice, the remaining state law claims; and 10 4. The Court of the Clerk is directed to close the case. [12] 13 | □□ □□ SO ORDERED. 14 Dated: _ March 7, 2023 5 UNITED f£TATES DISTRICT JUDGE