The opinion of the court was delivered by: J. PHIL GILBERT
Pending before this Court are three motions for summary judgment: one filed by the plaintiff against the defendant Cserny on the plaintiff's negligence claims (Document No. 31); one filed by the defendant Cserny concerning Counts I, II, III, and with respect to the claims for "loss of enjoyment of life" by the decedent or her next of kin as claimed in Counts I, II, III, VIII, IX and X (Document No. 38) and one filed by the defendant Ferrell Hospital, Inc. ("Hospital")(Document No. 53).
A Court may grant summary judgment only if the party seeking summary judgment demonstrates that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e); Wilson v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 841 F.2d 1347, 1354 (7th Cir. 1988). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1222 (7th Cir. 1984).
When the parties do not dispute the factual basis of a motion for summary judgment, the court's only inquiry is whether judgment should issue as a matter of law. The burden of proof on this matter rests with the moving party. Summary judgment is inappropriate, however, if the parties disagree about inferences reasonably drawn from undisputed facts. Bowyer v. United States Dep't of Air Force, 804 F.2d 428, 430 (7th Cir. 1986).
When the parties dispute the facts, the parties must produce proper documentary evidence to support their contentions. The parties cannot rest on mere allegations in the pleadings, Boruski v. United States, 803 F.2d 1421, 1428 (7th Cir. 1986), or upon conclusory allegations in affidavits. First Commodity Traders, Inc. v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir. 1985). The Court must view the evidence and any permissible inferences from the materials before it in favor of the non-moving party, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89, 89 L. Ed. 2d 538, 106 S. Ct. 1348, (1986), as long as the inferences are reasonable. Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988). The non-moving party must show that the disputed fact is material; that is, it must be outcome-determinative under the applicable law. Wainwright Bank & Trust Co. v. Railroad Fed. Sav. & Loan Ass'n, 806 F.2d 146, 149 (7th Cir. 1986).
In the first motion for summary judgment, the plaintiff asserts that summary judgment should be entered in his favor and against Dr. Cserny on the issue of negligence. In support of this motion the plaintiff provides the Court with an affidavit by Dr. Schwartz which states his opinion that Dr. Cserny violated the standard of care by failing to see Mrs. Kaufman after she presented herself to the emergency room and by failing to provide any backup medical care for Mrs. Kaufman. However, in response to this motion, Dr. Cserny presents this Court with an affidavit by Dr. J. Gregg Fozard which states that Dr. Cserny conducted himself within the standard of care applicable to a reasonably well-qualified physician in 1992.
When faced with "dueling affidavits" such as these the Court must remember the standard for a motion for summary judgment which is that a Court may grant summary judgment only if the party seeking summary judgment demonstrates that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e); Wilson v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 841 F.2d 1347, 1354 (7th Cir. 1988). Based upon a review of the evidence presented by way of affidavit in a light most favorable to Dr. Cserny, summary judgment in the plaintiff's favor must be denied.
As to the second motion for summary judgment, the first issue the Court must address is whether or not the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"), also known as the Emergency Medical Treatment and Active Labor Act ("EMTALA") found at 42 U.S.C. § 1395dd creates a civil action against an individual physician. The defendant cites to eleven cases in which the federal courts have addressed this issue and found that such a cause of action is inappropriate under EMTALA. However, the defendant also points to two decisions, one of which the plaintiff alleges is not directly on point, out of the Northern District of Illinois which do find that EMTALA creates a cause of action in this situation. See Sorrells v. Babcock, 733 F. Supp. 1189 (ND. Ill. 1990) and Thompson v. St. Anne's Hospital, 716 F. Supp. 8 (ND. Ill. 1989).
In response to this argument, the plaintiff asserts that previously in this matter, this Court held that the EMTALA did apply to the defendant Cserny in its ruling on Dr. Cserny's motion to dismiss. The plaintiff asserts that based upon this previous ruling the defendant should not be allowed to effectively overturn this ruling by this motion for summary judgment. The plaintiff, however, has misread the Court's previous ruling. In its Order of December 16, 1993, the Court stated:
The issue presented by defendant's motion to dismiss is a question of law that has not been resolved in any decision binding on this court. The Court believes, however, that, even if the EMTALA does not provide a right of action against an individual physician, the plaintiffs have also made sufficient allegations to state a claim under a theory of medical malpractice, for which there is supplemental jurisdiction under 28 U.S.C. § 1367.
Order, 12/16/93, Document No. 21, p. 5.
In a footnote to this section, the Court continued by stating that in regards to ...