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Joshua Beller, A Minor, By His Next Friend and Mother, Melissa Welch, et al v. Health and Hospital Corp. of

December 20, 2012


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:03-cv-00889-TWP-TAB--Tanya Walton Pratt, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.


Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

The plaintiffs brought suit alleging that the defendant, Health and Hospital Corpora- tion of Marion County, Indiana d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service ("Wishard") violated the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, by failing to stabilize Melissa Welch and her minor son, Joshua Beller, during an emergency medical situation. The district court granted summary judgment for Wishard, and the plaintiffs appeal.

On June 14, 2001, Melissa Welch called 911 and a Wishard ambulance was dispatched to her home. Welch was 34 weeks pregnant, and the paramedics ascertained that her water broke and she had a prolapsed umbilical cord. The paramedics tried to relieve pressure on the cord, and after consulting with the nurse at Welch's obstetrician's office, agreed that Welch needed to be transported to the nearest hospital. They then contacted the St. Francis Beech Grove ("Beech Grove") emergency room and transported her there. Beech Grove did not have an obstetrics facility. Rather than delivering the baby there, the physician at Beech Grove examined Welch and then sent her in the Wishard ambulance to St. Francis Hospital South. There, Joshua Beller was delivered by Caesarean section, but he had suffered hypoxia resulting in severe brain damage. The plaintiffs allege that Wishard violated the EMTALA by trans- ferring Joshua to Beech Grove instead of stabilizing him by delivering him, and that the failure resulted in his permanent injuries.

The EMTALA was enacted to address the problem of patient "dumping," in which hospitals would not provide the same treatment to uninsured patients as to paying patients, either by refusing care to the uninsured patients or by transferring them to other facilities. Johnson v. Univ. of Chicago Hospitals, 982 F.2d 230, 233 n. 7 (7th Cir. 1993); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C. Cir. 1991). EMTALA imposes two duties on hospitals with respect to patients who come to their emergency rooms: first, to provide medical screening for any emergency condition; and second, as to any emergency condition, to stabilize the patient prior to any transfer to another facility. 42 U.S.C. § 1395dd.

The issue in this case is whether the plaintiffs had "come to the emergency room" of Wishard Memorial Hospital when they were transported in the Wishard ambulance. The regulations to the EMTALA, promulgated by the Department of Health and Human Services' Center for Medicare and Medicaid Services ("DHHS), provide a definition of when a person is deemed to have "come to the emergency room," but the 2001 defini- tion in effect at the time of the incident was sub- sequently amended. Both parties agree that under the 2003 definition, the plaintiffs would not have "come to the emergency room" of Wishard, and therefore the claim could not proceed. The core issue, then, is which definition applies.

The 2001 regulation provides that:

Comes to the emergency department means that the individual is on the hospital property. For pur- poses of this section . . . [p]roperty . . . includes am- bulances owned and operated by the hospital even if the ambulance is not on hospital grounds.

42 C.F.R. § 489.24(b) (2001). That regulation was later amended in 2003, and although it still provided that an individual in an ambulance owned and operated by the hospital is deemed to have come to the emergency room, it also stated that such person is not considered to have come to the emergency room of that hospital if (i) (t)he ambulance is operated under communitywide emergency medical service (EMS) protocols that direct it to transport the individual to a hospital other than the hospital that owns the ambulance . . . [or] (ii) [t]he ambulance is operated at the direction of a physician who is not employed or otherwise affili- ated with the hospital that owns the ambulance.

42 C.F.R. § 489.24 (b) (2003). The Wishard ambulance was operating under EMS protocols at the time it transported the plaintiffs to Beech Grove, and therefore under the 2003 amendment the plaintiffs would not be deemed to have come to the Wishard emergency room by their presence in that ambulance.

Because the 2003 amendment occurred after the incident, the question is whether it can be applied retro- actively in determining whether the plaintiffs had come to the emergency room at Wishard under the EMTALA. In Bowen v. Georgetown University Hospital, 488 U.S. 204, 208-09 (1988), the Supreme Court held that an admin- istrative agency may not promulgate retroactive rules unless Congress has provided the agency with express authority to do so and, even if such authority is given, an agency rule will not be accorded retroactive effect unless the agency uses language in the rule expressly requiring that result. We have recognized, however, that not all rules create substantive changes. Some rules simply clarify unsettled or confusing areas of law and rather than changing the law, those rules merely restate what the law has always been according to the agency. Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001). Such a clarifying rule "can be applied to the case at hand just as a judicial determination construing a statute can be applied to the case at hand," and does not raise issues of retroactivity. Id.; Middleton v. City of Chicago, 578 F.3d 655, 633 (7th Cir. 2009). Therefore, the dispositive question is whether the 2003 amendment of the defini- tion of "comes to the emergency department" was merely a clarification of the meaning of that phrase, or whether it presented a substantive change in the definition.

The district court held that the amended definition of "comes to the emergency department" was a clarification that applied retroactively, and granted summary judg- ment in favor of the defendant. In so holding, the court gave deference to the DHHS' characterization of the 2003 amendment as a clarification, and concluded that the amendment was intended to alleviate confusion surrounding hospital-owned ambulances operating under the EMS protocols. On appeal, the plaintiffs chal- lenge both of those bases. They argue that it is not clear that the DHHS in fact considered the 2003 amendment to be a clarification. Moreover, they assert that even if the DHHS did characterize it as a clarification, the district court gave undue deference to that determina- tion and erred in failing to conduct its own analysis to ascertain whether the amendment was a substantive change or a clarification.

In determining whether a rule constitutes a change in law or a clarification of existing law, the intent of the promulgating agency must be accorded great weight. Clay, 264 F.3d at 749. We therefore will defer to an agency's expressed intent that a regulation be deemed a clarification unless the prior ...

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