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July 25, 1991

VERONICA DEBERRY, as mother and next friend of SHAUNTIA MARAE DEBERRY, Plaintiff,
SHERMAN HOSPITAL ASSOCIATION, an Illinois corporation, Defendant

Charles P. Kocoras, United States District Judge.

The opinion of the court was delivered by: KOCORAS


 This matter is before the court on Defendant Sherman Hospital Association's motion for summary judgment. For the reasons stated below, the motion is granted.


 This case involves the alleged medical misdiagnosis of an eight month old child, Shauntia Deberry, by a Sherman Hospital Association doctor, Douglas Jackson. On January 10, 1988 the plaintiff, Shauntia's mother, took her daughter to Sherman Hospital's emergency room, complaining that her daughter suffered from a fever, rash, stiff neck that tilted to the left, and such dispositional abnormalities as lethargy and irritability. These symptoms were recorded by one nurse. A second nurse gave the child medication and drew blood for a blood test. This nurse also recorded her own observation that the child held her head to the left, did not move when the blood was drawn, and cried with movement. Shauntia was then examined by Doctor Jackson who took a history from the mother and ordered a blood test. During the physical the doctor found Shauntia to be alert, active and in no apparent distress. He also found the child's neck to be supple but with some tenderness in the left lymph nodes. Shauntia's left ear was inflamed. The doctor saw Shauntia again once the blood test was completed, but found no change in the observed characteristics.

 Dr. Jackson considered the possibility that spinal meningitis was present but ultimately rejected that diagnosis. Based on the results of the physical examination and blood test, Dr. Jackson determined that Shauntia was suffering from nothing worse than an acute ear infection. After prescribing some medicine to treat the believed affliction, Dr. Jackson sent the Deberrys home. Two days later Shauntia was admitted to the hospital, diagnosed as having spinal meningitis.

 Based on these allegations, the plaintiff argues that the treatment Shauntia received at Sherman Hospital on January 10, 1988 fell short of the "appropriate medical screening examination" required by COBRA 42 U.S.C. § 1395dd, as amended by the federal Emergency Medical Treatment and Active Labor Act (hereinafter "§ 1395dd" or "the anti-dumping act"). *fn1" In addition, the Deberry complaint asserts a pendant state medical malpractice claim.

(1) went to the defendant's emergency room (2) with an emergency medical condition, and that the hospital either (3) did not adequately screen him to determine whether he had such a condition, or (4) discharged or transferred him before the emergency condition had been stabilized."

 Id. at 1305. As the Deberry complaint contained these requisite elements, this court denied the defendant's motion to dismiss on June 15, 1990.

 Presumably with this decision in mind, the parties have engaged in several months of discovery. The discovery depositions indicate that Ms. Deberry told the triage nurse that Shauntia had a stiffness in her neck, was not drinking her formula, and was sensitive to the touch. They further indicate that Dr. Jackson took a history, examined the child, considered a diagnosis of meningitis, ordered a blood test but not a spinal tap, determined Shauntia suffered from otitis media, prescribed an antibiotic and sent the Deberrys home. Although the testimony of the deponents does not agree on the symptoms exhibited on January 10, 1988, the record does indicate that the doctor himself did not observe signs of lethargy, unusual sensitivity, or stiffness in the neck.

 Citing Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990) the defendant now moves for summary judgment on the grounds that § 1395dd does not provide a civil remedy for mere negligence or misdiagnosis. In support of this motion, the defendant argues that any disputed facts remaining in this case are immaterial since (1) the plaintiff received the same treatment that the hospital would have offered to any other paying patient and (2) any emergency medical condition that existed on January 10, 1988 was not known to the hospital staff.

 The plaintiff attacks the motion procedurally as a back-door effort to obtain reconsideration of this court's June 15, 1990 ruling. In addition, Ms. Deberry asserts that negligent treatment is essentially a denial of appropriate care which can lead to an actionable violation of § 1395dd. Finally, the plaintiff states that material issues of fact persist on the questions of whether the hospital failed to perform an appropriate medical screening examination, whether Shauntia had ...

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