Brady v. Weeks Medical Center et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darren Brady
v. 	Case No. 19-cv-00655-SM
Weeks Medical Center and John Ford, M.D.
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Darren Brady’s
Complaint (Doc. No. 1), raising claims under 42 U.S.C. § 1983;
the Emergency Medical Treatment and Active Labor Act (“EMTALA”),
42 U.S.C. § 1395dd; Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000d; the Stark Act, 42 U.S.C. § 1395nn; the “Human Rights
Act of 1998”; New Hampshire’s “Law against Discrimination,” N.H.
Rev. Stat. Ann. (“RSA”) ch. 354-A; and state tort law. 	The
Complaint is before this magistrate judge for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Background
Plaintiff alleges that on June 2, 2018, defendant Dr. John
Ford, identified as an ER doctor,1 and defendant Weeks Medical
Center (“WMC”) refused to treat him in the WMC emergency room
for “sciatica nerve problems” and called the police to remove
1See Compl., Brady v. Weeks Medical Center, No. 214-2018-CV-
00094 (N.H. Super. Ct., Coos Cty., filed Aug. 29, 2018) (Doc.
No. 1-1 at 19).
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him from the hospital. 	Plaintiff asserts that his daughter took
a video of him lying on the ground in pain. 	A police officer
can be heard in that video, plaintiff asserts, telling him to
get up and stop faking. 	Plaintiff alleges further that a friend
drove him to another hospital’s emergency room, where he was
diagnosed and treated for his sciatica pain. 	Defendants billed
him, according to plaintiff, for treatment he did not receive.
Plaintiff seeks $150,000 for his “illegal detention by the
police for almost an hour, [and] pain and suffering,” and for
the hospital’s refusal to help him while still charging him. 	He
also seeks reimbursement for court fees.
The attachments to the Complaint indicate plaintiff filed
claims in state court arising from the same incident against the
same defendants. 	The Superior Court dismissed that action
because plaintiff failed to serve the defendants. 	See Brady v.
Weeks Medical Center, No. 214-2018-CV-00094 (N.H. Super. Ct.,
Coos Cnty., Feb. 21, 2019) (Doc. No. 1-1 at 5). 	An exhibit
attached to the Complaint here is a copy of a notice of appeal,
dated May 1, 2019, which appears to have been prepared for
filing in the New Hampshire Supreme Court (“NHSC”). 	See Doc.
No. 1-1, at 1, 2. 	This court’s inquiry into the docket in Brady
v. Weeks Medical Center, No. 2018-0692 (N.H.), indicates
plaintiff filed his last pleading in that case on March 4, 2019,
and the NHSC took no action on the pleading because it was not
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filed in a timely manner. 	The NHSC has closed that case.
Preliminary Review Standard
The court reviews complaints filed by plaintiffs who are
proceeding in forma pauperis to determine, among other things,
whether the plaintiff has asserted any claim upon which relief
might be granted. 	See 28 U.S.C. § 1915(e)(2), LR 4.3(d)(2). 	In
determining whether a pro se pleading states a claim, the court
construes the pleading liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted). 	Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a claim to relief. 	Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citations omitted). 	The court
may dismiss an action on preliminary review based on an
affirmative defense, if the facts alleged in the complaint, or
matters susceptible of judicial notice, conclusively establish
the elements of the affirmative defense. 	See Gray v. Evercore
Restructuring LLC, 544 F.3d 320, 324 (1st Cir. 2008).
Claims
Plaintiff claims that the defendants violated his federal
rights, giving rise to liability under 42 U.S.C. § 1983; EMTALA;
Title VI of the Civil Rights Act of 1964; and the Stark Act, by:
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• 	Refusing him medical treatment in the ER;
• 	Calling the police to have him removed from the ER;
and
• 	Billing him for treatment the defendants did not
provide.
Plaintiff also claims the defendants violated his rights under
the “Human Rights Act of 1998” and state law, by:
• 	Allowing him to sign in and admitting him to the ER,
but then refusing him medical treatment;
• 	Calling the police to have him removed from the ER;
• 	Billing him for treatment the defendants did not
provide; and
• 	Breaching their duty of care.
Discussion
I. 	42 U.S.C. § 1983
The Civil Rights Act, 42 U.S.C. § 1983, “provides a cause
of action for state deprivations of federal rights,” Nieves v.
Bartlett, No. 17-1174, 2019 U.S. LEXIS 3556, at *10, 2019 WL
2257157, at *4 (U.S. May 28, 2019). 	“To state a claim under
that statute, a plaintiff must assert two allegations: (1) that
some person deprived her of a federal right, and (2) that such
person acted under color of state or territorial law.”
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Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 31 (1st Cir.
2014) (citations and internal quotations omitted).
“Significantly, § 1983 does not apply to merely private conduct,
no matter how discriminatory or wrongful.” 	Id.
Plaintiff does not allege any facts demonstrating, or from
which it could be reasonably inferred, that the doctor and
hospital named as defendants are state actors subject to suit
under § 1983. 	Accordingly, Plaintiff has failed to state a
claim for relief under § 1983, and the district judge should
dismiss the § 1983 claims asserted against both defendants.
II. 	The Stark Act
Broadly stated, the Stark Act, 42 U.S.C. § 1395nn, “forbids
hospitals to bill Medicare for certain services when the
hospital has a financial relationship with the doctor who asked
for those services, unless an exception applies.” 	United States
ex rel. Bookwalter v. UPMC, 938 F.3d 397, 402 (3d Cir. 2019).
The Stark Act does not create a private right to sue for
violations of the statute. 	See id. at 406; Ameritox, Ltd. v.
Millennium Labs., Inc., 803 F.3d 518, 522 (11th Cir. 2015); U.S.
ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394,
396 (4th Cir. 2012) (“[T]he Stark Law does not create its own
right of action[.]”). 	The district judge should dismiss the
Stark Act claims asserted against both defendants for failure to
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state a claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2).
III. Human Rights Act of 1998
Plaintiff cites a law he calls the “Human Rights Act of
1998” as grounds for relief in this case. 	A law in effect in
the United Kingdom bears that title. 	See Human Rights Act 1998,
ch. 42, http://www.legislation.gov.uk/ukpga/1998/42/contents.
That law does not provide plaintiff with a cause of action
against the defendants here, arising from events occurring in
New Hampshire. 	Accordingly, the district judge should dismiss
the “Human Rights Act of 1998” claims.
IV. 	Defendant Weeks Medical Center
A. 	EMTALA Claim against WMC
EMTALA “is designed to prevent hospital emergency rooms
from refusing to accept or treat patients with emergency
conditions if the patient does not have medical insurance.”
Alvarez-Torres v. Ryder Mem’l Hosp., Inc., 582 F.3d 47, 51 (1st
Cir. 2009) (citation and internal quote omitted). 	To this end,
EMTALA imposes duties on covered facilities to: 	“(a) provide an
appropriate medical screening examination for those who come to
an emergency room seeking treatment, and (b) provide, in certain
situations, such further medical examination and such treatment
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as may be required to stabilize the medical condition.” 	Id.
(citations omitted).
To establish an EMTALA violation, a plaintiff must prove
that:
(1) the hospital is a participating hospital, covered
by EMTALA, that operates an emergency department (or
an equivalent facility); (2) the patient arrived at
the facility seeking treatment; and (3) the hospital
either (a) did not afford the patient an appropriate
screening in order to determine if she had an
emergency medical condition, or (b) bade farewell to
the patient (whether by turning her away, discharging
her, or improvidently transferring her) without first
stabilizing the emergency medical condition.
Id. (citation omitted). 	To succeed under the EMTALA
stabilization provision, plaintiff must demonstrate that Dr.
Ford, or some other unnamed WMC staff member, determined that he
had an emergency medical condition, as that term is defined by §
1395dd(e)(1)(A). 	See Alvarez-Torres, 582 F.3d at 52.
The court assumes for the purposes of preliminary review
that WMC is a participating hospital as defined in 42 U.S.C. §§
1395cc, 1395dd(e)(2). 	Plaintiff has sufficiently alleged that
he arrived at WMC’s emergency room seeking treatment for severe,
debilitating sciatica pain. 	Plaintiff’s allegations are
sufficient to give rise to a reasonable inference that he had an
obvious, potentially emergency medical condition. 	Although
plaintiff does not allege that defendants failed to screen him,
he alleges defendants refused to treat him, refused to help him
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get to another hospital, and had law enforcement remove him
without first stabilizing his pain. 	See, e.g., Compl. (Doc. No.
1), at 2. 	Plaintiff’s claim that defendant WMC violated the
stabilization provision of EMTALA survives preliminary review.
In an Order issued this date, the court has directed service of
that EMTALA stabilization claim against WMC.
B. 	Title VI of the Civil Rights Act against WMC
Title VI of the Civil Rights Act provides that “[n]o person
in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.” 	42 U.S.C.
§ 2000d. 	Hospitals or other health care providers operating
programs that accept Medicare or Medicaid have been deemed to be
subject to federal laws prohibiting discrimination by entities
that receive “Federal financial assistance.” 	See, e.g., Lesley
v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001) (“The receipt
of Medicare or Medicaid payments qualifies as receiving ‘federal
financial assistance’ under the Rehabilitation Act. 	‘It is not
necessary that federal funds be received for care and treatment
of complaining plaintiff.’" (citations omitted)). 	The court
assumes, without deciding, that the WMC’s emergency room is a
recipient of federal funding making it subject to Title VI’s
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anti-discrimination rules.
A private individual may recover compensatory damages under
Title VI against recipients of federal funding only in instances
of intentional discrimination. 	See Alexander v. Sandoval, 532
U.S. 275, 281 (2001) (citations omitted). 	To state a claim for
intentional discrimination under Title VI, the plaintiff “must
demonstrate, inter alia, that the defendant discriminated on the
basis of race, the discrimination was intentional, and the
discrimination was a substantial or motivating factor for the
defendant’s actions.” 	Goodman v. Bowdoin Coll., 380 F.3d 33, 43
(1st Cir. 2004) (citation omitted).
Plaintiff, who is African American, has asserted that
defendants denied him treatment and ejected him from the
emergency room because of his race. 	Plaintiff has sufficiently
alleged a violation of Title VI against defendant WMC to survive
preliminary review. 	See Educadores Puertorriquenos en Accion v.
Hernandez, 367 F.3d 61, 67 (1st Cir. 2004). 	In an Order issued
this date, the court has directed service of plaintiff’s Title
VI claim against WMC.
C. 	Law against Discrimination Claim against WMC
New Hampshire’s Law Against Discrimination recognizes as a
civil right, “[t]he opportunity for every individual to have
equal access to places of public accommodation without
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discrimination because of age, sex, gender identity, race,
creed, color, marital status, physical or mental disability or
national origin.” 	RSA § 354-A:16. 	RSA § 354-A:17 states:
It shall be an unlawful discriminatory practice
for any person, being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any
place of public accommodation, because of the . . .
race . . . of any person, directly or indirectly, to
refuse, withhold from or deny to such person any of
the accommodations, advantages, facilities or
privileges thereof; or, directly or indirectly, to
publish, circulate, issue, display, post or mail any
written or printed communication, notice or
advertisement to the effect that any of the
accommodations, advantages, facilities and privileges
of any such place shall be refused, withheld from or
denied to any person on account of . . . race . . . ;
or that the patronage or custom thereat of any person
belonging to or purporting to be of any particular . .
. race . . . is unwelcome, objectionable or
acceptable, desired or solicited.
Id.
Construed liberally, the Complaint alleges that the WMC is
a place of “public accommodation,” and that plaintiff was denied
treatment and kicked out of the emergency room because he is
African American. 	Plaintiff’s allegations are sufficient to
survive preliminary review of his Law Against Discrimination
claim against the WMC. 	In an Order issued this date, the court
has directed service of that claim against WMC.
D. 	Medical Negligence against WMC
A plaintiff states a viable claim of medical negligence in
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New Hampshire by alleging that he suffered a medical injury,
proximately caused by a medical care provider’s failure to
provide care consistent with the standard of reasonable
professional practice at the time the care was rendered. 	See
Beckles v. Madden, 160 N.H. 118, 124, 993 A.2d 209, 214 (2010)
(citing RSA § 507-E:2). 	In the Complaint, plaintiff has alleged
that defendant WMC owed him a duty of treatment when he was
admitted to the emergency room, that WNC breached that duty by
denying him treatment for his sciatica pain before calling the
police to have him removed, and that the breach of that duty
caused him additional pain and suffering. 	Plaintiff has alleged
sufficient facts to survive preliminary review of his medical
negligence claim against WMC. 	In an Order issued this date, the
court has directed service of that claim against WMC.
V. 	Defendant Dr. Ford
A. 	Federal Claims against Dr. Ford
1. 	EMTALA Claims against Dr. Ford
Plaintiff seeks to sue Dr. Ford individually under EMTALA,
42 U.S.C. § 1395dd. 	EMTALA remedies are available only against
participating hospitals, however, not against individual
physicians. 	See Pujol-Alvarez v. Grupo HIMA-San Pablo, Inc.,
249 F. Supp. 3d 591, 597–98 (D.P.R. 2017) (citing 42 U.S.C. §
1395dd(d)(2)(A)); see also Eberhardt v. City of Los Angeles, 62
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F.3d 1253, 1256 (9th Cir. 1995) (“The plain text of the EMTALA
explicitly limits a private right of action to the participating
hospital.”). 	As EMTALA does not provide a remedy for the claims
against Dr. Ford, the district judge should dismiss plaintiff’s
EMTALA claim asserted against Dr. Ford, for failure to state a
claim upon which relief may be granted.
2. 	Title VI Claims against Dr. Ford
Although an individual employee of an institution that
receives federal funds cannot be held liable under Title VI, see
Shotz v. City of Plantation, 344 F.3d 1161, 1169-71 & n.11 (11th
Cir. 2003), a doctor who personally accepts Medicaid
reimbursement may be deemed to be subject to laws precluding
discrimination by recipients of Federal financial assistance,
see, e.g., Lesley, 81 F. Supp. 2d at 222. 	Liberally construed,
the complaint alleges facts suggesting that Dr. Ford may be sued
for intentional discrimination that violates Title VI, as he is
alleged to be a physician who treats Medicaid recipients like
plaintiff. 	Accordingly, in the Order issued this date, the
court directs service upon Dr. Ford, with respect to plaintiff’s
Title VI claim.
B. 	State Law Claims against Dr. Ford
Plaintiff seeks to sue Dr. Ford for medical negligence and
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for violating New Hampshire’s “Law Against Discrimination,” RSA
ch. 354-A. 	Finding sufficient allegations to warrant service of
those claims within this court’s supplemental jurisdiction, the
Order issued this date directs service of those claims upon Dr.
Ford.
Conclusion
For the foregoing reasons, the district judge should
dismiss the § 1983 claims, the “Human Rights Act of 1998”
claims, and the Stark Act claims against both Weeks Medical
Center and Dr. Ford. 	In addition, the district court should
dismiss the EMTALA claim against Dr. Ford.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
November 12, 2019
cc: 	Darren Brady, pro se
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