SARAH D. WILLIAMS, Administratrix of the Estate of Berlie White, Deceased v. United States of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 SARAH D. WILLIAMS, Administratrix
of the Estate of Berlie White,
Deceased,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
No. 00-1118  and
LENORA NATIONS; STEPHANIE
LASSITER; MADGE OWLE,
Defendants.
AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION,
INCORPORATED,
Amicus Curiae. 
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CA-99-17-2-T)
Argued: December 5, 2000
Decided: March 2, 2001
Before WILKINS and NIEMEYER, Circuit Judges, and
Terrence W. BOYLE, Chief United States District Judge for the
Eastern District of North Carolina, sitting by designation.

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Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkins joined. Chief Judge Boyle wrote an opinion
concurring in part and concurring in the result.
COUNSEL
ARGUED: Norman Barrett Smith, SMITH, JAMES, ROWLETT &
COHEN, L.L.P., Greensboro, North Carolina, for Appellant. John
Samuel Koppel, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: David W. Ogden, Acting Assistant Attorney General, Mark
T. Calloway, United States Attorney, Mark B. Stern, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. Marshall L. Dayan, UNTI, LUMS-
DEN & SMITH, Raleigh, North Carolina; Seth Jaffe, Staff Attorney,
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA,
Raleigh, North Carolina, for Amicus Curiae.
OPINION
NIEMEYER, Circuit Judge:
We are presented with the question of whether the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, waives the United
States’ sovereign immunity with respect to a claim that an Indian hos-
pital operated by the United States on the Cherokee Reservation in
North Carolina wrongfully refused emergency medical treatment of a
non-Indian person, causing his death. Because the decedent’s estate
can direct us to no duty under the "law of the place" where the alleged
tort occurred that would require a "private [hospital] under like cir-
cumstances" to treat the decedent, 28 U.S.C. §§ 1346(b), 2674, we
affirm the district court’s judgment dismissing the claim for lack of
subject matter jurisdiction.
I
The revised amended complaint in this case alleges that in October
1997, Berlie White, while at a restaurant in Cherokee, North Carolina,
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became short of breath, developing "various signs of respiratory dis-
tress." Asserting that he was suffering from a medical emergency,
White presented himself at about 7:00 p.m. to the emergency room of
the nearby Cherokee Indian Hospital, an Indian hospital operated on
the Cherokee Reservation by the United States Public Health Service.
Federal employees operating the hospital refused to treat White or to
refill his oxygen tank because he was not Indian. They referred him
to the Swain County Hospital in Bryson City, North Carolina, approx-
imately 10 miles away. When White arrived at the Swain County
Hospital, he was in extreme respiratory distress, and he died the next
day. The complaint alleges that White’s death was caused by the
Cherokee Indian Hospital’s "refusal to provide any treatment or assis-
tance" and "the delay of his access to medical care."
As administratrix of the estate of Berlie White, Sarah D. Williams
commenced this action against the United States under the Federal
Tort Claim Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, alleging
(1) that the United States violated the Emergency Medical Treatment
and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, by refusing
to provide emergency medical care for White and by failing to stabi-
lize his condition; (2) that the United States denied White equal pro-
tection of the laws and due process in violation of the Fifth
Amendment; and (3) that the United States acted "intentionally to
deprive [White], by reason of his non-Indian race and ethnicity, the
services that would have been readily provided to an Indian," in viola-
tion of North Carolina law.
The United States filed a motion to dismiss, based on the conten-
tion that the FTCA did not waive the United States’ immunity for the
claims asserted and therefore that the court lacked subject-matter
jurisdiction. The district court agreed, dismissing the action. In doing
so, it held that "the FTCA does not create liability for the federal gov-
ernment based upon violations of federal law" and that North Caro-
lina has no law creating a duty in favor of a private person to provide
medical treatment or to recover for a discriminatory refusal to provide
medical treatment.
This appeal followed.
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II
The viability of Williams’ action against the United States depends
on the scope of the FTCA. Although the first count of her complaint
was ambivalent about whether it was a direct action against the
United States for violation of EMTALA, 42 U.S.C. § 1395dd, or
whether it is based on a federal claim for which sovereign immunity
was waived by the FTCA, she now acknowledges that because
EMTALA does not contain a waiver of sovereign immunity, her
claim is based on 28 U.S.C. § 2674, which makes the United States
liable for tort claims "in the same manner and to the same extent as
a private individual under like circumstances." Through the gateway
of that provision, Williams argues that EMTALA "creates standards
of conduct" that are covered by the FTCA. Likewise, she argues that
the United States’ immunity for claims based on the Fifth Amend-
ment are waived by the FTCA. Alternatively, she argues that North
Carolina law provides the applicable duty. She asserts that, in North
Carolina, hospitals are prohibited "from denying emergency treatment
on the basis of race."
It is well established that the United States may not be sued without
its consent and that its consent must be unequivocably manifested in
the text of a statute. Lane v. Pena, 518 U.S. 187, 192 (1996). "More-
over, a waiver of the Government’s sovereign immunity will be
strictly construed, in terms of scope, in favor of the sovereign." Id.
These principles govern our approach in construing the FTCA. This
Act provides:
The United States shall be liable, respecting the provisions
of this Title relating to tort claims, in the same manner and
to the same extent as a private individual under like circum-
stances . . . .
28 U.S.C. § 2674. And § 1346(b) of Title 28 vests jurisdiction over
FTCA claims in federal district courts, but only "under circumstances
where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or
omission occurred." Id. § 1346(b)(1). This statutory waiver includes
numerous limitations, and specifically, as relevant here, § 2680(a)
provides that the government is not liable on a claim "based upon an
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act or omission of an employee of the Government . . . based upon
the exercise or performance or failure to exercise or perform a discre-
tionary function or duty . . . whether or not the discretion involved be
abused."
III
As to her federal claims, Williams contends that the "law of the
place" governing the definition of torts for which the United States is
liable includes federal law, particularly the law supporting her claims
based on EMTALA and on Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
First, the FTCA was not intended to constitute a waiver for federal
claims. The FTCA waives immunity only for torts grounded in the
law of "the place where the act or omission occurred." While the "law
of the place" may be understood in the abstract to include all law,
both federal and state, in the context of a federal enactment, "the law
of the place" suggests a more localized law than the national law.
Congress surely would not have used that language if it intended to
waive its immunity from tort liability nationally for claims under
every federal enactment. Moreover, if the FTCA were to be a general
waiver of federal governmental immunity from suit, there would be
no need for Congress and the courts to consider in connection with
each enactment whether such a waiver is manifested by explicit lan-
guage. See, e.g., Lane, 518 U.S. at 192-200 (focusing on the language
of the Rehabilitation Act).
This conclusion that the FTCA does not waive the United States’
immunity against liability for violation of its own statutes, absent spe-
cific language in the substantive federal statute allegedly giving rise
to the duty, comports with the universally accepted position that "law
of the place," as used in the FTCA, refers to state and local law, not
federal law. As the Supreme Court stated in FDIC v. Meyer, 510 U.S.
471, 478 (1994), "Indeed, we have consistently held that § 1346(b)’s
reference to the ‘law of the place’ means the law of the State — the
source of substantive liability under the FTCA." See also United
States v. Agronics Inc., 164 F.3d 1343, 1346 (10th Cir. 1999) ("The
underlying principle is that the FTCA’s waiver of sovereign immunity
is limited to conduct for which a private person could be held liable
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under state tort law," not federal statutory law); Sea Air Shuttle Corp.
v. United States, 112 F.3d 532, 536 (1st Cir. 1997) ("It is virtually
axiomatic that the FTCA does not apply ‘where the claimed negli-
gence arises out of the failure of the United States to carry out a [fed-
eral] statutory duty in the conduct of its own affairs’"); id. (holding
that "violation of a federal statute by governmental actors does not
create liability unless state law would impose liability on a ‘private
individual under like circumstances’"); Dorking Genetics v. United
States, 76 F.3d 1261, 1266 (2d Cir. 1996) ("The test established by
the Tort Claims Act for determining the United States’ liability is
whether a private person would be responsible for similar negligence
under the laws of the State where the acts occurred"); Johnson v. Saw-
yer, 47 F.3d 716, 727-28 (5th Cir. 1995) (en banc) ("While as a matter
of abstract linguistics the phrase ‘law of the place’ . . . might be
thought to include generally applicable federal law, it does not").
But even assuming, as Williams contends, that the law of the place
includes the duties imposed by EMTALA, those duties are not appli-
cable here.
EMTALA imposes on participating hospitals1 duties (1) to provide
to persons presented for treatment "an appropriate medical screening
. . . to determine whether or not an emergency medical condition
. . . exists," and (2) to stabilize the condition or, if medically war-
ranted, to transfer such persons to other facilities. 42 U.S.C.
§ 1395dd(a)-(c); see also Brooks v. Md. Gen. Hosp., Inc., 996 F.2d
708, 710 (4th Cir. 1993). The Act, passed by Congress in response to
a growing concern that hospitals were "dumping" patients who were
unable to pay, requires hospitals to perform these duties uniformly,
regardless of whether the persons arriving in the emergency rooms are
insured or are able to pay. Id. at 711 n.4. As we stated in Brooks,
Congress expressed concern that hospitals were abandoning
the longstanding practice of providing emergency care to all
due to increasing pressures to lower costs and maximize
efficiency. Under traditional state tort law, hospitals are
under no legal duty to provide this care. Accordingly, Con-
1The United States has conceded that the Cherokee Indian Hospital
receives Medicare funding and therefore is a "participating" hospital.
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gress enacted EMTALA to require hospitals to continue to
provide it.
Id. at 710; see also Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856
(4th Cir. 1994); Baber v. Hosp. Corp. of Am., 977 F.2d 872, 880 (4th
Cir. 1992). Thus, Williams alleges that the United States is liable
under EMTALA in denying White emergency medical treatment.
It is true that EMTALA imposes a duty on any participating hospi-
tal to provide emergency medical care generally. Nevertheless, this
duty is restricted in the case of Indian hospitals operating under the
Indian Health Care Improvement Act, 25 U.S.C. § 1601 et seq., by the
express terms of that Act.
The Indian Health Care Improvement Act was enacted to "fulfill[ ]
. . . [the Nation’s] special responsibilities and legal obligation to the
American Indian people, to meet the national goal of providing the
highest possible health status to Indians and to provide existing Indian
health services with all resources necessary to effect that policy." 25
U.S.C. § 1602(a). In particular, having found that "the unmet health
needs of the American Indian people are severe and the health status
of the Indians is far below that of the general population of the United
States," id. § 1601(d), Congress enacted many provisions with the
intention of attempting to achieve "parity" between Indian and non-
Indians with respect to health care, id. § 1621(g). This goal of achiev-
ing parity between the opportunities of Indians and non-Indians per-
meates the Indian Health Care Improvement Act, extending, for
example, even to the granting of preferences for Indian- and tribal-
owned construction companies in contracts to build Indian health ser-
vice facilities. See, e.g., id. § 1633(a).
To achieve its purpose of elevating the health status of Indians to
the level of the general population, 25 U.S.C. §§ 1601(d), 1602(a),
Congress directed that funds expended under the Act be spent only on
projects having specified purposes, such as the "eliminati[on] [of] the
deficiencies in health status . . . of all Indian tribes," id. § 1621(a)(1).
Moreover, because the purpose of the Act is to eliminate existing dis-
parities between the overall health of Indians and non-Indians, the
limited funds allocated to the programs under the Act may be used
only to this end, that is, only to aid Indians designated as beneficiaries
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of the Act. See id. §§ 13, 1603, 1621. Thus, by the Act’s express
terms, hospitals, such as the Cherokee Indian Hospital, are prohibited,
with stated exceptions, from treating non-Indians, even in cases that
would, in the absence of the Act’s explicit prohibition, be covered by
EMTALA.
One exception, relevant here, permits Indian hospitals to provide
emergency medical treatment to non-Indians. But unlike the
EMTALA provision prohibiting discrimination, the Indian Health
Care Improvement Act permits, but does not mandate, the provision
of emergency medical treatment to non-Indians. Section 1680c states
that the Indian Health Service "may provide health services [to non-
Indians] in order to achieve stability in a medical emergency." 25
U.S.C. § 1680c(c)(1) (emphasis added).
Thus, even if federal statutory duties were thought to be included
in the claims for which the United States waived immunity in the
FTCA, the Cherokee Indian Hospital in this case would have no duty
to treat a non-Indian person presenting himself for emergency treat-
ment. At most, Williams could argue that the hospital was authorized
to treat non-Indians and was negligent in failing to exercise that dis-
cretion in a manner that was appropriate to the circumstances, but this
form of tort based on an abuse of discretion is excepted from the
waiver of the FTCA.
Under the FTCA, when employees of the United States fail "to
exercise or perform a discretionary function or duty . . . whether or
not the discretion involved be abused," their conduct, if grounded in
governmental policy, may not form the basis of a suit against the
United States. 28 U.S.C. § 2680(a); see also United States v. Gaubert,
499 U.S. 315, 324 (1991) (observing that "if a regulation allows the
employee discretion, the very existence of the regulation creates a
strong presumption that a discretionary act authorized by the regula-
tion involves consideration of the same policies which led to the pro-
mulgation of the regulations"); United States v. Varig Airlines, 467
U.S. 797, 813-14 (1984) (pointing out that the FTCA does not waive
sovereign immunity for the permissible exercise of judgment affect-
ing governmental policy). Because the Indian Health Care Improve-
ment Act, which provides generally for the medical care of only
Indians, permits, but does not mandate, the provision of emergency
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medical treatment to non-Indians, the decision of whether to provide
such emergency medical treatment is at the hospital’s discretion. The
exercise of that discretion by the hospital and its personnel, even if
it amounts to an abuse, falls within the discretionary-function excep-
tion because it affects a policy of the United States, i.e., the policy of
providing health facilities for Indians in furtherance of the Indian
Health Care Improvement Act. Decisions of this kind have routinely
been found to fall within the discretionary-function exception of the
FTCA. See Sutton v. Earles, 26 F.3d 903, 908 (9th Cir. 1994) (hold-
ing that the discretionary-function exception is applicable to decisions
whether to enforce boating regulations); Kiehn v. United States, 984
F.2d 1100, 1108 (10th Cir. 1993) (holding the exception applicable
to failures to warn of unstable rock conditions and negligence in gov-
ernmental rescue efforts); Galvin v. OSHA, 860 F.2d 181, 184 (5th
Cir. 1988) (finding the exception applicable to failure to conduct
OSHA inspection when statute and regulations authorize, but do not
require, such inspections); Begay v. United States, 768 F.2d 1059 (9th
Cir. 1985) (applying the exception to failure to warn uranium miners
of dangers in uranium mining).
Williams also contends that the FTCA waives federal immunity for
her Bivens claim. But this claim fares no better than her EMTALA
claim. The Supreme Court’s holding in FDIC v. Meyer, 510 U.S. at
477-78, explicitly forecloses Williams’ argument. The Meyer court
explained that because the "law of the place" encompasses state law,
but not federal law, a federal constitutional tort cannot provide the
source of law under the FTCA. "By definition, federal law, not state
law, provides the source of liability for a claim alleging the depriva-
tion of a federal constitutional right. To use the terminology of Rich-
ards [v. United States, 369 U.S. 1, 7-8 (1962)], the United States
simply has not rendered itself liable under § 1346(b) for constitutional
tort claims." Id. at 478.
IV
Turning to Williams’ alternative contention that state law creates
a duty to provide emergency medical treatment or a duty not to dis-
criminate in refusing to provide emergency medical treatment, the
common law of North Carolina provides Williams with no support to
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bring a claim against the Cherokee Indian Hospital.2 We can consider
this question, however, only if we assume that the hospital person-
nel’s conduct did not fall within the discretionary-function exception
of 28 U.S.C. § 2680(a).
The North Carolina Supreme Court has held that a physician has
no duty to render services to every person seeking them. See Childers
v. Frye, 158 S.E. 744 (N.C. 1931). The Childers court based its deci-
sion on a contract theory, concluding that a physician’s decision of
whether to treat a person amounts to a decision of whether to enter
into a contractual relationship. In the case of an unconscious patient,
where a traditional contract relationship could not be formed, the
court explained that liability would then be established only if "the
physician actually accepted an injured person as a patient and under-
took to treat him." Id. at 746. Holding that the common law does not
limit a medical provider’s discretion to turn away potential patients,
the court found it unobjectionable that the doctor had refused to treat
the patient because he mistakenly believed the patient was drunk. See
id.
Despite the holding in Childers, Williams advances four theories
as to why a healthcare provider in North Carolina has a duty not to
discriminate in the provision of emergency medical care. First, she
argues that N.C.G.S. § 58-65-85, which prohibits nonprofit hospitals
from discriminating on the basis of race, color, and national origin,
would provide her with a cause of action against a private hospital.
This provision, however, is part of North Carolina’s Insurance Code
2Although the Cherokee Indian Hospital is located on the Cherokee
Reservation, suggesting that the law of the Eastern Band of Cherokees
might be applicable as the "law of the place," see 25 C.F.R. § 11.500, the
parties agree that there is no tribal law applicable to the provision of
emergency medical treatment and that any tribal resolution would look,
in these circumstances, to applicable federal and North Carolina law.
Therefore, we need not determine whether tribal law, rather than state
law, constitutes the applicable law of the place. Compare Cheromiah v.
United States, 55 F. Supp. 2d 295, 1302-05 (D.N.M. 1999) (holding that
tribal law, not state law, is the law of the place for a tort committed in
a federally-owned hospital on an Indian reservation), with Louis v.
United States, 54 F. Supp. 2d 1207, 1209-10 (D.N.M. 1999) (reaching
the opposite conclusion).
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and applies only to nonprofit hospitals seeking reimbursement from
the North Carolina Department of Insurance. Moreover, the statute
does not apply to every private hospital. Most importantly, we have
been unable to find any North Carolina case that interprets this statute
to give rise to a private cause of action.
Second, Williams directs us to N.C.G.S. § 131A-8, a statute per-
taining to hospitals receiving state financing, which states, "All health
care facilities shall be operated to serve and benefit the public and
there shall be no discrimination against any person based on race,
creed, color or national origin." Again, this statute does not provide
a private enforcement mechanism. Arguably, the North Carolina
Medical Care Commission is authorized to enforce this nondiscrimi-
nation rule under § 131A-4(B) (allowing the Commission to sue and
be sued). While § 131A-15 permits "[a]ny holder of bonds or notes
issued under the provisions of this Chapter" to bring suit to enforce
his contractual rights under the bond, this provision does not autho-
rize a private enforcement action against a hospital that has discrimi-
nated in violation of § 131A-8.
Third, Williams relies on the Patients’ Bill of Rights, § 3C.4103,
a state agency rule promulgated pursuant to the Hospital Licensure
Act, N.C.G.S. § 131E-75. Again, however, the legislature provided
for enforcement of this Act only by the North Carolina Department
of Health and Human Services. See N.C.G.S. § 131E-79(b).
Finally, Williams, relying on a Georgia case, asserts a common law
duty based on her theory that a hospital emergency room is a "public
utility." See Williams v. Hosp. Auth., 168 S.E.2d 336, 337 (Ga. Ct.
App. 1969) ("To say that a public institution which has assumed this
duty and held itself out as giving such aid can arbitrarily refuse to
give emergency treatment to a member of the public who presents
himself with ‘a broken arm and in a state of traumatic injury, suffer-
ing mental and physical pain visible and obvious to the hospital
employees’ is repugnant to our entire system of government"). In Wil-
liams, however, the court "express[ed] no opinion on the [existence
of a] duty of a private hospital in Georgia." Id. (emphasis added). And
under the FTCA, Williams would have to show that the Cherokee
Indian Hospital was liable as a "private individual," not as a public
utility. But more relevant to this case, there is no indication that North
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Carolina recognizes such a public utility theory. Indeed, the reason
Congress enacted EMTALA in large part was because states gener-
ally had not made tort remedies available for the refusal to provide
emergency care. See Bryan v. Univ. of Va., 95 F.3d 349, 351 (4th Cir.
1996) ("Under traditional state tort law, hospitals are under no legal
duty to provide [emergency medical] care" (quoting Brooks, 996 F.2d
at 710)).
V
The scope of duties imposed by positive law is necessarily nar-
rower than the reach of moral command, and this case presents a
tragic circumstance, if the allegations of the complaint are true, that
could have been avoided by simple obedience to a moral command.
That individuals at the Cherokee Indian Hospital would deny Berlie
White the most meager of medical assistance — that of refilling his
oxygen tank when it had run out — at a time of extreme need is
incomprehensible, particularly when these individuals were not pro-
hibited by law from providing White with this assistance. If they did
deny White this minimal care, the burden of their moral failure will
surely remain with them. But the positive law of the United States
does not, in our judgment, authorize a suit for damages against the
United States for refusing to provide medical assistance, as we have
explained herein.
AFFIRMED
BOYLE, Chief District Judge, concurring in part and concurring in
the result:
While I concur in the result reached and the basic reasoning of the
majority opinion, I write separately in order to note a portion of the
opinion with which I disagree.
As discussed in the majority opinion, the unfortunate outcome in
this case is mandated by the doctrine of sovereign immunity. Under
such doctrine, the Federal Government is immune from suits for dam-
ages, except to the extent that it has made an unequivocal, express
waiver of its immunity. See Lane v. Pena, 518 U.S. 187, 192 (1996).
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While the Federal Government has made a limited waiver of sover-
eign immunity, under the FTCA, it has done so only for those cases
in which a private person would be liable under the "law of the place"
in which the claim arose. See 28 U.S.C. § 1346(b)(1).
In this case, the "law of the place" is the law of the state of North
Carolina. Because EMTALA is a federal statute, it does not qualify
as the "law of the place" for purposes of the FTCA. Moreover, as its
text plainly shows, EMTALA itself makes no mention of the United
States government and contains no "unequivocally expressed" waiver
of sovereign immunity. Therefore, the United States has not waived
its immunity from suits brought under EMTALA and Williams must
state her claim, as required by the FTCA, under North Carolina law.
Though unjustly so, a private person or hospital may not be held lia-
ble, under the laws of North Carolina, for denying emergency care,
on the basis of race, to a person in need of such care. For this reason
alone, the United States may not be held liable for denying emergency
treatment to Williams’ deceased.
While this initial reasoning is sufficient basis upon which to affirm,
the majority goes beyond this reasoning to discuss why, even if it
were not immune from suits brought under EMTALA, the United
States could not be held liable thereunder, in this case, because the
Cherokee Indian Hospital is governed by the Indian Health Care
Improvement Act ("IHCIA"). I do not agree with this reasoning,
because there is no language, in the IHCIA or elsewhere, that exempts
an Indian hospital that is also a "participating hospital"1 under
EMTALA from the emergency-care duties imposed upon it by
EMTALA.
EMTALA requires that, in emergency situations, participating hos-
pitals must provide stabilizing treatment or necessary transfer services
to "any individual . . . [that] comes to a hospital" and is determined
to be in need of emergency care. See 42 U.S.C. § 1395dd(b)(1)
1A hospital is a "participating hospital" under EMTALA if it receives
Medicare funding. See 42 U.S.C. § 1395dd(e)(2). In this case, as noted
in the majority opinion, the United States concedes that the Cherokee
Indian Hospital receives Medicare funding and is therefore a "participat-
ing hospital" under EMTALA.
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(emphasis added). While the IHCIA bars Indian hospitals from pro-
viding medical care to non-Indian individuals as a general matter, this
exclusion is expressly limited, by the terms of the IHCIA, to non-
emergency situations. Specifically, the IHCIA provides that, notwith-
standing limitations imposed elsewhere in the Statute, Indian hospi-
tals "may provide health services under this subsection to . . .
[otherwise ineligible] individuals . . . in order to . . . achieve stability
in a medical emergency . . . ." 25 U.S.C. § 1680c(c)(1) (emphasis
added).
In this case, the Cherokee Indian Hospital receives Medicare fund-
ing and is therefore a "participating hospital" under EMTALA. As a
participating hospital under EMTALA, the Cherokee Indian Hospital
has an absolute duty to provide medical or transport services to any
individual, Indian or non-Indian, in need of emergency care. The
Cherokee Indian Hospital is also an administrative entity within the
Indian Health Service, and is therefore governed by the Indian Health
Care Improvement Act. As a hospital governed by the IHCIA, the
Cherokee Indian Hospital has an absolute right to provide services to
a non-Indian individual, so long as the individual is in need of emer-
gency care. Because EMTALA requires it to do so and the IHCIA
allows it to do so, these Statutes, together, place the Cherokee Indian
Hospital under a duty to provide care in emergency situations to all
individuals in need of stabilizing care, irrespective of race. Moreover,
this duty to provide emergency medical care is not a matter of discre-
tion, because it is clearly mandated by EMTALA.
Had the Federal Government chosen to waive its immunity from
suit under EMTALA, the United States could have been held liable
for the breach of duty that was alleged to have occurred in this case.
Unfortunately for Williams, the Government has not waived its
immunity from suit under EMTALA. Therefore, at least in the state
of North Carolina,2 such a breach of statutory duty on the part of a
2As discussed, the duty to provide emergency care to all persons in
need, irrespective of race, may not be enforced under the FTCA as
against any federally-run hospital in North Carolina, because, in the state
of North Carolina, no state-law basis exists upon which to bring such a
claim. If the common or statutory law of a state did, however, recognize
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federal hospital, however morally repugnant, remains beyond
reproach in the courts.
For these reasons, I am not able to join the majority’s reasoning
that hospitals governed both by EMTALA and the IHCIA are under
no duty to provide emergency medical care to non-eligible patients.
However, I concur in the balance of the majority opinion, as well as
in the result.
a cause of action against a private person or hospital for a breach of duty
to provide medical care in an emergency situation, a person aggrieved by
a federal entity for breach of that duty could bring a suit against the fed-
eral entity in that state. In such a case, the Government would have
waived its immunity from such a suit under the FTCA.
15 WILLIAMS v. UNITED STATES

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