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March 20, 1990


The opinion of the court was delivered by: ROSZKOWSKI


 This action comes before the court on Defendant Dr. Douglas Kinkel's motion to dismiss Counts II and III of Plaintiff's complaint. For the reasons set forth herein, the court denies Defendant's motion to dismiss.


 Plaintiff, Barbara Sorrells, filed suit in the United States District Court for the Northern District of Illinois on June 8, 1989 alleging a personal injury/medical malpractice action against Defendants. Plaintiff and all individual Defendants are residents of the State of Illinois. Defendant Swedish American Hospital is licensed by the State of Illinois and is located in Rockford, Illinois. Defendants Warren Babcock, James Frakes, Douglas Kinkel and Mark Shiels are all licensed physicians who are practicing in the State of Illinois.

 Count II of Plaintiff's complaint alleges an action against Defendant Douglas Kinkel under 42 U.S.C. § 1395dd. This section is referred to as the COBRA Act or the Emergency Medical Treatment and Active Labor Act. The acronym "COBRA" refers to the Consolidated Omnibus Budget Reconciliation Act of 1986 of which § 1395dd is a part.

 Plaintiff's complaint states that on June 26, 1987, Plaintiff was admitted to the emergency room of Swedish American Hospital in an unstable emergency medical condition. The condition was subsequently diagnosed as gastrointestinal bleeding. Plaintiff alleges that she was discharged from the emergency room without stabilization of her signs and symptoms. Plaintiff states that at the time of her discharge she exhibited dizziness, recurrent vomiting, diffuse abdominal pain and diffuse abdominal tenderness. As a result of her discharge from the emergency room, Plaintiff contends she suffered severe complications of her gastrointestinal bleeding and gastroesophageal reflux. At the time of this incident, Defendant Kinkel had an employment contract with Defendant Swedish American Hospital. Dr. Kinkel treated Plaintiff while she was in the emergency room.

 Count III of Plaintiff's complaint alleges a pendent state law claim for medical malpractice against Defendant Kinkel. Plaintiff lists eight allegations in support of her medical malpractice action. Basically, Plaintiff contends that Defendant Kinkel carelessly and negligently breached his duty to render adequate and proper care and treatment to Plaintiff. Plaintiff states that the care and treatment rendered to her did not meet the standard of care for a patient in Plaintiff's condition.

 Defendant Kinkel has brought a motion to dismiss Counts II and III of Plaintiff's complaint for want of federal subject matter jurisdiction. Defendant Kinkel first contends that a COBRA violation cannot be pursued in a federal forum. If the court, however, finds a federal remedy exists under COBRA, Defendant Kinkel requests an evidentiary hearing in order to determine if Plaintiff left the emergency room in an unstabilized emergency medical condition. Defendant asserts that jurisdiction is heavily dependant on whether Plaintiff left the hospital in an unstabilized medical condition. Defendant Kinkel further contends that there must be a knowing and/or an intentional violation of COBRA in order for a plaintiff to seek protection from the Act. Defendant Kinkel also moves for dismissal on the basis that COBRA applies only to hospitals and not to physicians. Finally, Defendant Kinkel argues that Counts II and III must be dismissed because COBRA does not authorize any private recovery by a plaintiff.


 In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiff could prove consistent with the pleadings that would entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 96 L. Ed. 2d 381, 107 S. Ct. 2489 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hospital of Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

 COBRA was enacted to end "patient dumping". "Patient dumping" refers to the practice of a hospital that, despite being capable of providing the needed medical care, transfers patients to another institution or refuses to treat patients because the patient is unable to pay. Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. Supp. 853, 853-54 (S.D.Ind. 1989). Congress sought to end patient dumping by providing that any hospital receiving federal funds must accept any patient seeking treatment in its emergency room or risk the loss of funding. Section 1395dd(d)(3)(A) provides that an individual suffering harm as a direct result of a COBRA violation may recover damages in a civil action against the participating hospital. COBRA does not, however, specifically provide for a remedy in the United States District Courts.

 Defendant Kinkel first argues that a COBRA violation cannot be pursued in a federal forum. COBRA took effect on August 1, 1986. Due to its recent enactment, very little case law exists interpreting the Act. One case, however, is directly on point as to this issue.

 In Bryant v. Riddle Memorial Hosp., 689 F. Supp. 490 (1988), the United States District Court for the Eastern District of Pennsylvania determined, for the first time, whether COBRA provided for a private cause of action in federal court. The Bryant court first noted that Section 1395dd(d)(3)(A) of the Act clearly allows for civil enforcement ...

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