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Palmer v. Shawnee Mission Medical Center, Inc.

United States District Court, D. Kansas

November 8, 2018

TERESA MARY PALMER, et al., Plaintiffs,



         On 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).

         This lawsuit arises from Ms. Palmer's unanticipated home birth. Ms. Palmer, her husband, her mother, and her father, all proceeding pro se, [1] 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.

         This 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 this lawsuit.

         After considering the parties' arguments, the court grants defendants' Motions for Summary Judgment and denies plaintiffs' Motion for Summary Judgment. The court explains why below.

         I. Admissible Summary Judgment Evidence

         Before 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. 145-5, 145-24).

         For the 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 judgment motions.

         A. CMS Documents

         Plaintiffs 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).

         Although 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”).

         And, 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 Fed.R.Evid. 803(8)).

         Also, 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).

         For all 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 Evidence.

         B. Revised Version of Patient Care Protocol No. 308

         Also, 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 argument.

         Fed. R. 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).

         Here, 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.

         II. Uncontroverted Facts

         The following facts are uncontroverted for purposes of the parties' summary judgment motions.

         On 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[2] was receiving prenatal care from Dr. Angela Piquard. SMMC staff admitted Ms. Palmer for observation and assessment under Dr. Piquard's name.

         In 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.

         Under 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.

         Also, 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.

         The 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.[3]

         Ms. 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.”[4] 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.

         Ms. 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.

         Another 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 tracing.” Id.

         From 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.

         CNM 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.

         According 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 car.

         SMMC's discharge instructions included information explaining how to recognize labor. It provided:

         Yes, 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 together.
• You have pink-colored or blood-streaked fluid from your vagina.
• Your water breaks. It may be a gush or a slow trickle of clear fluid ...

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