Richard Thomas , individually and as Special Administrator of the Estate of Chyrl Thomas v. Christ Hospital and Medical Center

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3373
R ICHARD T HOMAS , individually
and as Special Administrator of
the Estate of Chyrl Thomas,
Plaintiff-Appellant,
v.
C HRIST H OSPITAL AND M EDICAL C ENTER ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 700—James B. Zagel, Judge.
____________
A RGUED F EBRUARY 25, 2003—D ECIDED A PRIL 25, 2003
____________
Before P OSNER , C OFFEY , and W ILLIAMS , Circuit Judges.
C OFFEY , Circuit Judge. Plaintiff-Appellant Richard
Thomas (“Thomas”) sued Defendant-Appellee Christ Hos-
pital and Medical Center (the “Hospital”), alleging that
the Hospital had failed to fulfill its duty to stabilize his
wife, Chyrl Thomas (“Chyrl”), before releasing her, as re-
quired by the Emergency Medical Treatment and Active
Labor Act (“EMTALA”). The district court granted the Hos-
pital’s motion for summary judgment, and Thomas ap-
peals. We reverse.

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2 No. 02-3373
I. FACTUAL BACKGROUND
On Friday evening, July 9, 1999, Richard Thomas brought
his wife, Chyrl, to the Hospital’s emergency room. Richard
explained to the Hospital’s staff that Chyrl had been
exhibiting strange behavior recently, including crying
profusely, driving recklessly, and talking rapidly and
incoherently. After the staff obtained medical histories
and performed independent evaluations of Richard and
Chyrl, it was determined that Chyrl was in need of fur-
ther psychiatric evaluation.
Chyrl was assessed by several members of the Hospital
staff. Initially, Chyrl was evaluated by Leonard Kemp,
a licensed clinical staff social worker specializing in psychi-
atric assessments with some thirty years experience. Kemp
was charged with assessing and making recommendations
of psychiatric referrals, where appropriate, for emergency
room patients.
Kemp noted that Chyrl showed manic-like symptoms,
was deeply agitated, and was “extremely paranoid towards
her husband” (i.e., she had refused to go to sleep for the
previous four days because she thought her husband
was going to kill her). (R. 96-2 at 51, 60.) He observed
that Chyrl was uncooperative, guarded, and belligerent.
(R. 96-2 at 102.) She exhibited psychomotor agitation by
pacing, refusing to stay on the cart, and leaving the exami-
nation room. (R. 96-2 at 105.) Kemp also noted that Chyrl
could not stay on one subject and was emotionally labile.
(R. 96-2 at 51-52, 62.) He recorded the fact that Chyrl had
started ingesting a steroid (prednisone) for the treatment
of respiratory distress within the previous two weeks and
was presently taking such medication. Based on his obser-
vations and knowledge, Kemp concluded that Chyrl suffered
from a steroid-induced psychosis. (R. 96-2 at 52.)
Kemp noted that Chyrl required treatment for her erra-
tic and unpredictable behavior, and that there was a pos-

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No. 02-3373 3
sibility that Chyrl might “act out” against her husband.
(R. 96-2 at 59.) Using a scale of 1 to 10 (1-no need for
hospitalization, 10-hospitalization absolutely required),
Kemp rated Chyrl at 5.5, meaning that he slightly favored
hospitalization. (R. 96-2 at 60.) After determining that the
Hospital’s psychiatric ward presently had no beds available,
Kemp recommended that Chyrl either be admitted in a
different part of the hospital or be transferred to another
facility. (R. 96-2 at 54, 64.) When he left work a short time
after he evaluated Chyrl, Kemp was under the impression
that Chyrl would either be admitted medically or trans-
ferred to a psychiatric hospital, having made such a
recommendation to the emergency room resident, Dr.
Belden: “[S]ee if you can get a medical admit with a psych
consult. . . . If that doesn’t work, she needs to be transferred
to a psych hospital.” (R. 96-2 at 48, 50.)
Chyrl was next evaluated by Dr. Eleanor Levine, an
attending emergency room physician. Dr. Levine concurred
with Kemp’s diagnosis of steroid-induced psychosis, but
opined that Chyrl did not pose a threat of harm to herself
or others. Despite Dr. Levine’s conclusion that Chyrl did
not pose a threat of harm to herself or others, the Hospital
offered Chyrl voluntary commitment into the hospital,
which Chyrl declined. Chyrl was instructed by Dr. Levine
to immediately discontinue the use of the prednisone and
to make an appointment as soon as possible with Dr.
Palmer (Chyrl’s personal physician, who had initially
prescribed the prednisone). Levine also advised Chyrl to
return to the emergency room if her condition worsened.
After relaying these instructions to Chyrl’s family, the
Hospital staff discharged Chyrl around midnight Friday,
July 9, 1999.
On Monday, July 12, Chyrl went to see Dr. Palmer, again
accompanied by her husband, Richard. After evaluating
Chyrl, Dr. Palmer formulated a treatment plan including
a sedative medication and instructed Chyrl not to drive.

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4 No. 02-3373
That evening, Chyrl and Richard went to dinner and a
movie. While sitting in the theatre before the movie began,
Chyrl got up from her seat and, without saying anything
to Richard, exited the theatre. Richard was under the
impression Chyrl had simply gone to the restroom. Unfortu-
nately, however, Chyrl had actually left the building and
was in the process of driving northbound on Chicago’s
Michigan Avenue reaching speeds in excess of eighty
miles per hour. At 91st Street, a “T” intersection requiring
traffic north on Michigan Avenue to make a left or right
turn, Chyrl continued straight ahead. She was fatally
injured when her car struck a light pole and a building. She
was pronounced dead shortly after she arrived at Christ
Hospital late Monday night (around 11:00 p.m.), July 12.
On February 4, 2000, Richard Thomas, individually
and as Special Administrator of Chyrl’s estate, filed a
complaint in district court. After multiple amendments and
dismissals, only Count I against Christ Hospital, based
on violations of the Emergency Medical Treatment and
Active Labor Act (“EMTALA”), survives and is under re-
view by this Court. On April 10, 2002, the Hospital filed
a motion for summary judgment requesting dismissal of
Count I, alleging that there was no genuine issue of mate-
rial fact as to whether Christ Hospital discharged Chyrl
Thomas with an unstable emergency medical condition. The
district court granted summary judgment in the Hos-
pital’s favor on September 3, 2002. Thomas filed a timely
notice of appeal in September, 2002.
II. ANALYSIS
Summary judgment should be granted only if there is “no
genuine issue as to any material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). We review a grant of
summary judgment de novo, construing all the facts in the
light most favorable to the nonmoving party. Harley-

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No. 02-3373 5
1 The Hospital does not dispute that it falls under EMTALA’s
ambit.
Davidson Motor Co., Inc. v. PowerSports, Inc., 319 F.3d 973,
980 (7th Cir. 2003). Conclusory allegations alone cannot
defeat a motion for summary judgment. Lujan v. Nat’l
Wildlife Federation, 497 U.S. 871, 888-89 (1990).
The EMTALA imposes two primary obligations on certain
federally funded hospitals. 1 First, when an individual
seeks treatment from an emergency room, the hospital
must provide for an “appropriate medical screening exami-
nation . . . to determine whether or not an emergency
medical condition . . . exists.” 42 U.S.C. § 1395dd(a). Second,
if the hospital determines that the individual has an
emergency medical condition, then the hospital must ei-
ther “stabilize” the medical condition or must arrange
for the transfer of the individual to another medical facility.
42 U.S.C. § 1395dd(b)(1).
“Emergency medical condition” means a medical condi-
tion manifesting itself by acute symptoms of sufficient
severity that the absence of immediate medical attention
could reasonably result in “imminent danger of death or
serious disability.” 42 U.S.C. § 1395dd(e)(1); Thorton v.
Southwest Detroit Hosp., 895 F.2d 1131, 1134 (6th Cir.
1990). The Federal Regulations promulgated by the Health
Care Financing Administration, Department of Health
and Human Services (“HCFA”) further define an “emer-
gency medical condition” as a medical condition of suffi-
cient severity as to include not only severe pain, but also
a psychiatric disturbance and/or symptoms of substance
abuse. 42 C.F.R. § 489.24(b)(i). Under the HCFA Inter-
pretive Guidelines § 489.24(c)(1), if “it is determined that
the patient has reached the point where his/her continued
care, including diagnostic workup and/or treatment, could
be reasonably performed as an outpatient or later as an

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6 No. 02-3373
inpatient, provided the patient is given a plan for appro-
priate follow-care with the discharge instructions,” a patient
will be considered stabilized for discharge.
Christ Hospital does not dispute that Chyrl had an
“emergency medical condition” under EMTALA. Rather, the
Hospital argues that Chyrl’s condition was stable at the
time she was discharged, and thus the requirements of
EMTALA were met. The EMTALA defines “stabilized” as
a state in which “no material deterioration of the condition
is likely, within reasonable medical probability, to result.”
§ 1395dd(e)(3)(B). The HCFA’s Interpretive Guidelines,
which the Hospital admits define “stability” as far as Chyrl
was concerned, provide that a psychiatric patient is con-
sidered to be “stable when he/she is no longer considered
to be a threat to him/herself or to others.”
In assessing the physical stability of a patient, courts
have generally focused on the EMTALA requirement
that “no material deterioration” of the condition is likely.
See, e.g., St. Anthony Hosp. v. United States Dep’t of Health
and Human Services, 309 F.3d 680, 697 (10th Cir. 2002);
Harry v. Marchant, 291 F.3d 767, 771 (11th Cir. 2002);
Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1167
(9th Cir. 2002). Several Circuit Courts have also addressed
the applicability of EMTALA to psychiatric, not physical,
conditions. See, e.g., Eberhardt v. City of Los Angeles, 62
F.3d 1253 (9th Cir. 1995); Power v. Arlington Hospital
Ass’n, 42 F.3d 851 (4th Cir. 1994). However, these psychiat-
ric EMTALA cases deal principally with the EMTALA-
imposed screening requirements that a hospital must
employ to detect emergency medical conditions, not the
EMTALA stabilization requirement. See Eberhardt, 62
F.3d at 1257; Power, 42 F.3d at 859. The adequacy of the
Hospital’s screening procedure is not at issue here. Rather,
the question is whether, during the screening, the Hos-
pital became aware that Chyrl was unstable and never-
theless released her. Once an emergency medical condition

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No. 02-3373 7
is detected, the hospital must act to stabilize the condi-
tion—whether physical or psychiatric—before the patient
can be transferred or released. 42 U.S.C. § 1395dd.
Thomas argues that an issue of material fact exists as
to whether Chyrl was psychiatrically “stabilized” under
the EMTALA when released. First, he contends that the
medical expert testimony presented during pre-trial dis-
covery established a genuine issue as to Chyrl’s stability
and was a danger to others or herself. Second, he avers
that the deposition testimony of Leonard Kemp, the hos-
pital staff social worker, created a genuine issue as to
Chyrl’s stability.
Thomas retained two expert witnesses who testified as
to the propriety of Chyrl’s discharge. Dr. Thomas Zane
reported that “a diagnosis of psychosis with documented
paranoia, impaired judgment and thinking process repre-
sents an unstable condition,” and that “a diagnosis of
psychosis indicates that a patient has an inability to
distinguish reality from non-reality.” In reaching his
conclusion that Chyrl “should have been transferred to a
facility with . . . resources for patients with acute psycho-
sis,” Dr. Zane stated that Chyrl “could not have taken
responsibility for her own actions and could not have
signed as the responsible person for her own discharge
and was, by definition, a danger to herself regardless of
assurances to the contrary.” He also testified that al-
though he may not have foreseen that Chyrl Thomas
would have been killed while operating a motor vehicle,
he would have anticipated that Chyrl might very well have
done something unreasonable and would have been a
significant danger to herself or others.
Dr. Leonard Elkun, a psychiatrist, also testified that
Chyrl should not have been discharged. Rather, if the
Hospital was unwilling to admit Chyrl, at the very least
she should have been prescribed anti-psychotic medica-

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8 No. 02-3373
tion to combat the symptoms of steroid-induced psychosis.
She should have been directed to follow up with a psychia-
trist—if not immediately, as soon as practically possi-
ble—rather than to merely follow up with her internist,
Dr. Emeric Palmer, who had prescribed her the prednisone.
Thomas’ first argument, standing alone, is not convinc-
ing. Despite the fact that he presented the testimony of
two medical experts (Drs. Zane and Elkun), it is clear that
conclusory assertions, unsupported by specific facts made
in affidavits opposing a motion for summary judgment,
are not sufficient to defeat a motion for summary judgment.
See Lujan v. National Wildlife Federation, 497 U.S. 871,
888 (1990) (citations omitted). Rule 56(e) of the Federal
Rules of Civil Procedure specifically prohibits a party from
relying upon his allegations to contest entry of summary
judgment. Neither Zane nor Elkun set forth any specific
facts to support their respective opinions that Chyrl
Thomas was discharged in an unstable medical condition
(prednisone-induced psychosis) or left with the same un-
stable condition.
Thomas’ second argument, however, carries more weight.
The testimony of the Hospital’s staff social worker, Kemp,
lends factual support to the expert opinions. Kemp, who
was the one primarily responsible for psychiatric intake
screening at the Hospital on the night in question, (R. 96-2
at 34), stated that he slightly favored hospitalizing Chyrl
because he feared that Chyrl would “act out” against her
husband because of her unstable mental condition. In other
words, Kemp considered Chyrl to be a threat to her hus-
band and thought that she should be either admitted or
transferred to another hospital. As noted supra, however,
Kemp was the hospital employee who recorded his profes-
sional observations that Chyrl showed manic-like symp-
toms and had refused to go to sleep for the previous four
days because she thought her husband was going to kill her.
He also observed that Chyrl was uncooperative, guarded,

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No. 02-3373 9
2 The Guidelines state in relevant part: “For purposes of dis-
charging a patient (other than for the purpose of transfer from one
facility to a second facility), for psychiatric conditions, the patient
is considered to be stable when he/she is no longer considered
to be a threat to him/herself or to others.” § 489.24(c)(1).
and belligerent; that she refused to stay on the examina-
tion cart, was constantly pacing, and attempted to leave
the examination room. It was on the basis of these observa-
tions that he recommended Chyrl either be admitted or
transferred to a psychiatric hospital.
Under the HCFA Guidelines § 489.24(c)(1), which the
Hospital admits applies to this case, a psychiatric patient
has been stabilized only if he is no longer a threat to
himself or others. The Hospital dismisses Kemp’s opinion
that Chyrl was not stable because she was a threat to her
husband because Kemp expressly stated that he did not
feel that Chyrl was suicidal or homicidal. The same reason-
ing was adopted by the district court. In reaching this
conclusion, the Hospital and the district court have ap-
parently inserted the modifying phrase “suicidal or homi-
cidal” before the word “threat” in HCFA Guideline
§ 489.24(c)(1). The HCFA Guidelines do not state that an
individual can only be a “threat to him/herself or others”
if he is suicidal or homicidal. 2 One can imagine many
situations in which an individual with a psychiatric impair-
ment poses a “threat” to others without being suicidal or
homicidal. Such an individual might cause great destruc-
tion without intending to do so, simply because he or she
is not aware of or cannot control his or her own actions.
The cases cited by the Hospital are inapposite. In Green
v. Touro Infirmary, 992 F.2d 537, (5th Cir. 1993), the Fifth
Circuit affirmed summary judgment for the hospital only
because the plaintiff had presented no evidence in contra-
diction to the defendant infirmary’s position; not, as the
Hospital here suggests, simply because the plaintiff had

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10 No. 02-3373
no signs or symptoms of acute distress. Green, 992 F.2d at
539-40. The Hospital also relies on Cleland v. Bronson
Healthcare Group, Inc., 917 F.2d 266 (6th Cir. 1990). In
Cleland, the Sixth Circuit affirmed a grant of summary
judgment for the defendant health care institution, but
only because the plaintiff’s “failure to stabilize” claim
was based solely on a negative outcome; there was no evi-
dence indicating that the patient was unstable at dis-
charge. Cleland, 917 F.2d at 269. Tellingly, the court
specifically stated that there was no allegation of “any facts
known to the doctors at the time to state that the patient
was not stabilized.” Id. (emphasis added). Such is not
the case here. Kemp’s testimony renders this case dis-
tinguishable from both Green and Cleland, in that in
this case there is evidence of facts known and recognized
by the Hospital staff at the time of discharge indicating
that the patient may very well have been unstable.
Here, we believe a number of important questions of
fact remain to be decided beyond the question of whether
Chyrl’s status at discharge; for example, whether steroid-
induced psychosis can be adequately addressed simply
by directing the patient to immediately cease taking the
steroid, the extent of the efforts, if any, that were made by
the hospital in an effort to transfer Chyrl to a psychiatric
hospital, and whether the hospital’s actions (or lack there-
of) were causally related to Chyrl’s death. We are not
inferring what the outcome of the case will be; we are
simply raising only a few of the important questions—there
may be others—that must be decided before one can
find that there are no genuine issues of material fact re-
maining.

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No. 02-3373 11
III. CONCLUSION
Thus, there is a dispute of material fact over whether
Chyrl was stabilized at the time of her discharge. Constru-
ing the testimony in the light most favorable to the
nonmovant, this conflicting testimony alone creates a
genuine issue of material fact as to whether Chyrl was a
threat to herself or to her husband, and hence whether
she had been “stabilized” under the EMTALA.
We hold that the district court’s decision to grant sum-
mary judgment was not proper. The district court’s order
is R EVERSED and ordered R EMANDED to the district court
for further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-25-03

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