ZELDA TRAHAN, Estate of P.G., deceased minor v. Clayton Dublier & Rice;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZELDA TRAHAN, Estate of P.G., deceased
minor,
Plaintiff-Appellant,
v.
CLAYTON DUBLIER & RICE; et al.,
Defendants-Appellees.
No. 14-35366
D.C. No. 2:13-cv-02111-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted July 13, 2018
Seattle, Washington
Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,** District
Judge.
Zelda Trahan filed suit against Defendants Clayton Dublier & Rice,
American Medical Response, Emergency Medical Services Corporation, Envision
Healthcare Corporation, King County of Washington State, Medic 8 of King
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
FILED
JUL 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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County Medic One, and Harborview Medical Center of Washington. Ms. Trahan
alleges that her daughter, Purpose Goldsmith, while in a medical crisis, was
transported to Harborview Medical Center instead of the hospital closest to her
home in violation of 42 U.S.C. § 1395dd, the Emergency Medical Treatment and
Active Labor Act (EMTALA) and 42 U.S.C. § 1983.
The district court sua sponte dismissed Ms. Trahan’s complaint pursuant to
28 U.S.C. § 1915(e)(2)(B), finding that she had failed to state a claim under the
EMTALA, her EMTALA claims were untimely under the Act’s two-year statute of
limitations, and that the EMTALA could not be pursued under § 1983. Ms. Trahan
timely appealed. We review de novo the district court’s decision to dismiss Ms.
Trahan’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim upon which relief may be granted. See Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998).
To determine whether a statute may be enforced via § 1983, the Supreme
Court has delineated that the “crucial consideration is what Congress intended.”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252 (2009) (citation omitted).
Thus, the “critical question, then, is whether Congress meant the judicial remedy
expressly authorized by [the statute] to coexist with an alternative remedy available
in a § 1983 action.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120-21
(2005).

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Here, “the provision of an express, private means of redress” in the
EMTALA is “an indication that Congress did not intend to leave open a more
expansive remedy under § 1983.” See id. at 121 (“Thus, the existence of a more
restrictive private remedy for statutory violations has been the dividing line
between those cases in which we have held that an action would lie under § 1983
and those in which we have held that it would not.”). Furthermore, allowing a
plaintiff to employ § 1983 as a vehicle to circumvent the EMTALA’s two-year
statute of limitations “would be inconsistent with Congress’ carefully tailored
scheme.” Smith v. Robinson, 468 U.S. 992, 1012-13 (1984), superseded by statute
on other grounds as stated in Fry v. Napoleon Comm. Schs., 137 S. Ct. 743, 746
(2017). Thus, we conclude that the EMTALA’s comprehensive enforcement
scheme demonstrates Congress’ intent that the EMTALA be the exclusive means
for remedying discrimination in emergency medical treatment.
Nevertheless, even if we had agreed with Ms. Trahan on this issue, Ms.
Trahan has no viable claim under the EMTALA. The EMTALA clearly states that
if an individual seeks emergency care from a hospital with an emergency room and
if that hospital participates in the Medicare program, then “the hospital must
provide for an appropriate medical screening examination within the capability of
the hospital’s emergency department . . . to determine whether or not an
emergency medical condition . . . exists.” 42 U.S.C. § 1395dd(a). Thus, as the

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EMTALA only provides a form of redress against a participating hospital, the only
proper Defendant in this matter is Harborview Medical Center.
Ms. Trahan argues in her Reply Brief that Defendant Medic One is a
“participating hospital” for EMTALA purposes. However, as this argument was
first raised in her Reply Brief, it is waived. Eberle v. City of Anaheim, 901 F.2d
814, 818 (9th Cir. 1990). Furthermore, we find this argument meritless as Medic
One is an ambulance transport company and the EMTALA is clear that it only
applies to participating hospitals with an emergency department. See Eberhardt v.
City of Los Angeles, 62 F.3d 1253, 1255 (9th Cir. 1995) (highlighting that the
EMTALA was enacted to address the issue of hospitals “dumping” patients who
were unable to pay by refusing to provide them emergency medical treatment or
transferring them before their medical condition is stabilized).
As to Harborview, Ms. Trahan’s complaint does not adequately allege that
Harborview provided her daughter a substandard medical screening examination.
See Jackson v. East Bay Hosp., 246 F.3d 1248, 1256 (9th Cir. 2001) (explaining
that a medical screening is appropriate “if it provides a patient with an examination
comparable to the one offered to other patients presenting similar symptoms[.]”)
(citation omitted); see also Vargas v. Del Puerto Hosp., 98 F.3d 1202, 1205 (9th
Cir. 1996) (explaining that a merely slight or de minimis deviation from a
hospital’s screening policy is insufficient to establish a violation of the EMTALA).

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Moreover, Ms. Trahan does not allege that Harborview directed Medic 8 to
another hospital. See Arrington v. Wong, 237 F.3d 1066, 1072 (9th Cir. 2001)
(finding that a defendant hospital could have violated the EMTALA by diverting
the plaintiff in a non-hospital owned ambulance to a more distant facility when it
was not alleged that it was in diversionary status). Furthermore, any allegations
revolving around Medic 8's decision to transport Ms. Trahan’s daughter to
Harborview, instead of to a closer facility, are outside the scope of the EMTALA
as 42 C.F.R. § 489.24(b)(4) requires Ms. Trahan’s daughter to be on hospital
property for the EMTALA to be triggered. Accordingly, there are no allegations
that would make Harborview liable under the EMTALA and we find any
amendment to be futile.
As there is no remaining viable federal claim, we find the district court did
not err in declining to take supplemental jurisdiction over Ms. Trahan’s state law
causes of action. 28 U.S.C. §1367(c)(3).
AFFIRMED.

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