United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
November 5, 2014, plaintiff Teresa Mary Palmer gave birth to
a son. Several hours before the baby's birth, Ms. Palmer
began experiencing cramps and pain. So her husband, mother,
and father drove her to Shawnee Mission Medical Center
(“SMMC”). SMMC admitted Ms. Palmer to its Birth
Center, but later diagnosed her with false labor and
discharged her from the hospital. Ms. Palmer returned home,
and she continued to experience cramps and pain. Eventually,
her family called 911, and EMS responded to her home. Shortly
thereafter, EMS assisted Ms. Palmer as she gave birth to her
son on the floor of the bathroom in her home. Neither Ms.
Palmer nor her son sustained any physical injuries from the
home birth. To the contrary, Ms. Palmer testified that her
son is “normal and healthy.” Doc. 142-9 at 20-21
(Teresa Mary Palmer Dep. 76:21-77:5).
lawsuit arises from Ms. Palmer's unanticipated home
birth. Ms. Palmer, her husband, her mother, and her father,
all proceeding pro se,  assert two claims against defendants
SMMC and Mid America Physician Services, LLC. Ms. Palmer
asserts a claim against SMMC for violating the Emergency
Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd. And all four
plaintiffs assert a Kansas state law claim for intentional
infliction of emotional distress against both SMMC and MAPS.
matter comes before the court on the parties' cross
motions for summary judgment. Defendants SMMC and MAPS have
filed separate Motions for Summary Judgment. Docs. 133, 141.
Defendants' motions ask the court to grant summary
judgment against each of plaintiffs' claims. Also,
plaintiffs have filed a Motion for Summary Judgment. Doc.
145. Plaintiffs ask the court to grant summary judgment in
their favor on each claim they assert against defendants in
considering the parties' arguments, the court grants
defendants' Motions for Summary Judgment and denies
plaintiffs' Motion for Summary Judgment. The court
explains why below.
Admissible Summary Judgment Evidence
turning to the parties' summary judgment motions, the
court addresses what evidence it can consider on these
motions. Specifically, the parties dispute whether the court
can consider two pieces of evidence that plaintiffs rely on
both to support their Motion for Summary Judgment and to
controvert defendants' facts supporting their Motions for
Summary Judgment. The two pieces of evidence are: (1) a
report prepared by the Centers for Medicare & Medicaid
Services (“CMS”) (Doc. 145-1), as well as other
documents referring to Ms. Palmer's complaint to CMS
(see, e.g., Docs. 145-3, 145-18, 145-20)
(collectively “CMS documents”); and (2) a revised
version of SMMC's Patient Care Protocol No. 308, a
revision that SMMC issued after November 5, 2014 (Docs.
court to consider this evidence on summary judgment,
plaintiffs must establish that the content and substance of
the evidence is admissible. See Johnson v. Weld
Cty., 594 F.3d 1202, 1209 (10th Cir. 2010) (explaining
that it is “well settled in this circuit” that,
at summary judgment, courts can consider only admissible
evidence); see also Fed. R. Civ. P. 56(c)(2)
(“A party may object that the material cited to support
or dispute a fact [on summary judgment] cannot be presented
in a form that would be admissible in evidence.”). For
reasons explained below, the court concludes that both items
of evidence are, in present form, inadmissible, and thus the
court may not consider either one to decide the summary
ask the court to take judicial notice of the CMS documents
under Fed.R.Evid. 201(b)(2). Doc. 149-29. Fed.R.Evid.
201(b)(2) allows a court to take judicial notice of a fact
not subject to reasonable dispute because it “can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” The court declines to
take judicial notice of the CMS documents under this rule
because, as defendants correctly argue, plaintiffs have not
authenticated the documents and they contain many hearsay
statements. Thus, the CMS documents are not “from
sources whose accuracy cannot reasonably be questioned,
” as Fed.R.Evid. 201(b)(2) requires. See United
States v. Burch, 169 F.3d 666, 672 (10th Cir. 1999)
(refusing to take judicial notice of facts from photocopy of
a map and hearsay affidavit because these were not sources
“whose accuracy cannot reasonably be questioned”
as Fed.R.Evid. 201(b)(2) requires).
not cited by plaintiffs, the court has considered whether the
hearsay exception for public records found in Fed.R.Evid.
803(8) makes the CMS documents admissible. Plaintiffs have
not made any showing that the CMS documents qualify as a
public record under this Rule. See Brown v. Perez,
835 F.3d 1223, 1232 (10th Cir. 2016) (holding that a letter
was inadmissible evidence at trial because it was hearsay and
the party offering the letter failed to identify any
applicable hearsay exception); see also Woodhull v. Cty.
of Kent, No. 1:04-cv-203, 2006 WL 2228986, at *5 n.4
(W.D. Mich. Aug. 3, 2006) (refusing to consider an
investigative report on summary judgment because the party
offering the report never “provided foundational facts
establishing that the [report] falls within Fed.R.Evid.
803(8), which provides a hearsay exception for certain
‘public' records and reports”).
even if plaintiffs had asserted that the CMS documents
qualify as a public record under Rule 803(8)'s hearsay
exception, plaintiffs have not authenticated the CMS
documents properly. Although Fed.R.Evid. 902 allows for
self-authentication of public records, the CMS documents are
not self-authenticating because they contain neither seal (as
Fed.R.Evid. 902(1) requires) nor a certification (as
Fed.R.Evid. 902(2) and 902(4) require). And plaintiffs
don't authenticate the CMS documents using any of the
other means in Fed.R.Evid. 901. Thus, the court cannot
consider the CMS documents on summary judgment because they
are not authenticated. See United States v. Baker,
538 F.3d 324, 331 (5th Cir. 2008) (explaining that
“[r]egardless of whether [the evidence] falls within
the ambit of [Fed. R. Evid.] 803(8) . . . [the party offering
the evidence] did not authenticate [it], which is necessary
as a predicate for admission under” Fed.R.Evid.
803(8)); see also United States v. 478.34 Acres of
Land, 578 F.2d 156, 159 (6th Cir. 1978) (holding that a
Corp of Engineers statistical survey was inadmissible
evidence because no “effort [was] made to verify or
authenticate the data in accordance with Rule 901, ”
and the evidence thus “did not come within the
exception to the hearsay rule admitting deeds and public
records, Rule 803(8), (14), (15), or any other exception to
the hearsay rule”); In re Marshall Complex
Fire, No. CV-09-0010-RMP, 2010 WL 1416843, at *4 (E.D.
Wash. Apr. 8, 2010) (concluding that a state agency's
report was inadmissible on summary judgment because the
report was not authenticated under either Fed.R.Evid. 901 or
902, and thus did “not satisfy the threshold
requirement of authentication” for the court to
consider whether it fell within the hearsay exception of
to the extent plaintiffs ask the court to accept any legal
conclusion the CMS documents may contain, the court cannot
consider that kind of evidence on summary judgment. See
Sprint Commc'ns Co. v. Vonage Holdings Corp., 500
F.Supp.2d 1290, 1304 (D. Kan. 2007) (explaining that legal
conclusions are not “facts as would be admissible in
evidence” as Fed.R.Civ.P. 56 requires (citations and
internal quotation marks omitted)); see also Shelter
Mortg. Corp. v. Castle Mortg. Co., L.C., 117 Fed.Appx.
6, 10 (10th Cir. 2004) (holding that the district court
“correctly struck inadmissible hearsay and inadmissible
legal conclusions” on summary judgment).
these reasons, the court rules that it may not consider the
CMS documents to decide the current summary judgment motions
because they are not admissible under the Federal Rules of
Revised Version of Patient Care Protocol No. 308
the court can't consider the revised version of
SMMC's Patient Care Protocol No. 308. SMMC issued the
revised version of this policy after November 5, 2014. Thus,
the revised policy was not in effect when Ms. Palmer
presented to SMMC's Birth Center on November 5, 2014.
Defendant SMMC argues that this evidence is inadmissible
under Fed.R.Evid. 407 because it qualifies as a subsequent
remedial measure. Plaintiffs never responded to this
Evid. 407 provides that “[w]hen measures are taken that
would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures is not admissible
to prove . . . culpable conduct . . . .” The Tenth
Circuit has recognized “two primary grounds for the
exclusion of evidence under Rule 407: (1) the limited
probative value of subsequent remedial measures; and (2)
‘[the] social policy of encouraging people to take . .
. steps in furtherance of added safety.'” Stahl
v. Bd. of Cty. Comm'rs, 101 Fed.Appx. 316, 321 (10th
Cir 2004) (quoting Hull v. Chevron, U.S.A., 812 F.2d
584, 587 (10th Cir. 1987)). Thus, under Rule 407,
“courts have excluded ‘repairs, changes in
construction, installation of new safety devices . . .,
changes in rules and regulations, [and] changes in
the practice of the business.'” Id.
(quoting 23 Charles Alan Wright & Kenneth W. Graham, Jr.,
Federal Practice & Procedure § 5284 (2d ed.
1980)) (emphasis added).
plaintiffs offer the revised version of Patient Care Protocol
No. 308 as evidence to support their claims against defendant
SMMC. Thus, plaintiffs seek to use the revised policy-a
subsequent measure taken by SMMC-to prove culpable conduct.
Fed.R.Evid. 407 prohibits admitting evidence for that
purpose. And plaintiffs offer no other purpose that would
allow the court to consider this evidence on summary
judgment. See Fed. R. Evid. 407 (providing
exceptions for the court to “admit this evidence for
another purpose, such as impeachment or-if disputed-proving
ownership, control, or the feasibility of precautionary
measures”). The court concludes that the revised
version of Patient Care Protocol No. 308 is inadmissible
evidence under Fed.R.Evid. 407. Consequently, the court does
not consider the revised policy when deciding the
parties' summary judgment motions.
following facts are uncontroverted for purposes of the
parties' summary judgment motions.
November 5, 2014, plaintiff Teresa Mary Palmer was 36.2 weeks
pregnant. At 2:26 a.m., she presented to SMMC's Birth
Center, complaining that she was cramping, experiencing
vaginal bleeding, and discharging pinkish fluid. Before
coming to SMMC's Birth Center, Ms. Palmer was receiving
prenatal care from Dr. Angela Piquard. SMMC staff admitted
Ms. Palmer for observation and assessment under Dr.
November 2014, SMMC had a policy titled Patient Care Protocol
No. 308 (Medical Screening Exam (MSE), Care of the Perinatal
Patient Receiving). Patient Care Protocol No. 308 applied to
pregnant patients who presented themselves at SMMC's
Birth Center, and it implemented the medical screening exam
and stabilization requirements prescribed by EMTALA.
Patient Care Protocol No. 308, registered nurses
(“RNs”) and certified nurse midwives
(“CNMs”) constituted “qualified medical
personnel” who were authorized to perform medical
screening exams on pregnant patients presenting to SMMC's
Birth Center to determine if a patient was experiencing an
emergency medical condition. Specifically, Patient Care
Protocol No. 308 provided, among other things, that
“[a] woman is in true labor unless a physician or
qualified medical personnel certifies that, after a
reasonable amount of time, the woman is in false
labor.” Doc. 142-7 at 4. Patient Care Protocol No. 308
authorized a woman's discharge from SMMC if qualified
medical personnel found her “not to be in active
labor.” Id. at 5.
Patient Care Protocol No. 308 provided that “[i]f the
hospital applies in a non-discriminatory manner a screening
assessment that is reasonably calculated to determine whether
an emergency medical condition exists, it has met its
obligations under the Emergency Medical Treatment and Active
Labor Act (EMTALA).” Id. at 4. Patient Care
Protocol No. 308 required an assessment of a pregnant
woman's physical status based on “vital signs,
” the “frequency, duration, and intensity of
contractions, ” “fetal monitoring to establish
fetal wellbeing, ” and a “vaginal exam” to
“determine fetal presentation and station, cervical
dilatation and effacement, ” and assessment of the
“status of membranes.” Id. at 4-5. It
also included a “Plan” providing for consultation
with a “physician to determine if [an] emergency
medical condition exists and if [the] patient requires
admission, discharge, or transfer . . . .” Id.
at 5. Patient Care Protocol No. 308 did not require a
physician to examine a pregnant patient physically and in
person when the patient had received prenatal care as part of
the medical screening exam and before her discharge from
SMMC's Birth Center.
following nurses provided care to Ms. Palmer after she was
admitted to SMMC's Birth Center on November 5, 2014:
Katherine Yunghans, CNM; Brandi Leann Fernandez, RN; Lisa
Marie Nelson, RN; and Heather Kristine Hardy, RN. Each of
these individuals is a “qualified medical
personnel” under Patient Care Protocol No. 308. The
nurses caring for Ms. Palmer repeatedly took her vital signs,
performed a urinalysis, and conducted several vaginal exams
(including a speculum exam) to assess her cervix. Ms.
Palmer's medical records contain a note reading:
“Omit vaginal exam - If less than 37 weeks - or if
bleeding - or after membranes rupture.” Doc. 142-6 at
28. Also, the nurses administered Fern and Nitrazine tests to
check for the presence of amniotic fluid in the vaginal canal
and to determine whether Ms. Palmer's membranes had
ruptured. According to Ms. Palmer's medical chart, these
tests ultimately produced negative results.
Palmer's medical chart shows that she had a cervical
assessment at 2:55 a.m. The chart describes “OB Vaginal
Bleed” as “Pink tinged.” Doc. 142-15 at 2.
It also states: “10 inch diameter of pinkish fluid
present on chux following exam.” Id. Ms.
Palmer had two other cervical assessments at 4:20 a.m. and
6:00 a.m. For these two assessments, Ms. Palmer's medical
chart describes “OB Vaginal Bleed” as “Pink
tinged.” Id. Each of the three cervical exams
noted on the medical chart list “OB Effacement”
as “100.” Id.
Palmer's medical chart also includes Progress Notes. One
note describes an “Obstetric Exam” and provides
“wet pinkish discharge present on glove following exam,
perineum appears wet.” Doc. 142-6 at 25. The note also
reads: “Negative ferning. Negative nitrazine. Amnisura
deferred at this time due to presence of blood-tinged muc[
]us.” Id. The progress note also describes
“contractions” as “mild, Regular,
Irritable.” Id. And it lists “Category I
tracing” under “Baby.” Id.
progress note references a “plan” to
“[h]old in L&D triage for evaluation by Dr.
Piquard.” Id. Also, the progress note includes
the following notations: “Questionable prolonged ROM
[rupture of membranes]” and “Category I FHR
about 2:41 a.m. until 6:40 a.m., the nurses caring for Ms.
Palmer administered electronic fetal heart monitoring. The
monitoring found a “stable” and “reassuring
fetal heart rate.” Doc. 142-6 at 25. Also, the nurses
assessed Ms. Palmer's contractions. The nurses documented
in Ms. Palmer's medical records that her cervix was
dilated to fingertip width and 100% effaced, and that her
baby's head was at a -2 station in the birth canal.
According to Ms. Palmer's medical chart, over the course
of several hours of monitoring, Ms. Palmer's cervix never
dilated beyond fingertip width and her baby's head
remained at a -2 station.
Katherine Yunghans discussed Ms. Palmer's case with Dr.
Michael Magee, and Dr. Magee agreed with CNM Yunghans's
plan of care. They both diagnosed Ms. Palmer with false
labor. At the same time, CNM Yunghans noted a
“[q]uestionable prolonged” rupture of membranes.
Doc. 142-6 at 25. Also, she noted that Ms. Palmer's
“maternal condition” was “stable.”
Id. Dr. Magee recommended that Dr. Piquard evaluate
Ms. Palmer since Dr. Piquard was planning to come to the
hospital for another procedure that morning.
to Ms. Palmer's medical records, she had a pain score of
“3” at 3:18 a.m. By 6:00 a.m., Ms. Palmer's
pain score had increased to a “5.” Around 7:17
a.m., Nurse Brandi Leann Fernandez paged Dr. Piquard. Dr.
Piquard returned the page and spoke with Nurse Fernandez.
According to Ms. Palmer's medical chart, Dr. Piquard
determined that Ms. Palmer was in false labor. So, around
7:29 a.m., Dr. Piquard gave Nurse Fernandez a telephone order
to discharge Ms. Palmer from SMMC. At 7:38 a.m., SMMC
discharged Ms. Palmer (with discharge instructions) after
assessing and monitoring her for more than five hours. Ms.
Palmer used a wheelchair to leave the Birth Center. SMMC
discharged Ms. Palmer to her home, and she left by private
discharge instructions included information explaining how to
recognize labor. It provided:
Labor Has Probably Started If:
• Your contractions are getting stronger and more
painful instead of weaker. You'll probably feel them
throughout your whole uterus.
• Your contractions are more regular (you feel them
about every 5 to 10 minutes) and they are getting closer
• You have pink-colored or blood-streaked fluid from
• Your water breaks. It may be a gush or a slow trickle
of clear fluid ...