1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 JAMES OLLISON, Case No. 20-cv-04944-LB

12 Plaintiff,

ORDER GRANTING ALAMEDA

13 v. HEALTH’S MOTION TO DISMISS

14 ALAMEDA HEALTH SYSTEMS, et al., Re: ECF No. 24 15 Defendants. 16 17 INTRODUCTION 18 Plaintiff James Ollison, who is representing himself and proceeding in forma pauperis, sued 19 the defendants — Alameda Health Systems (d/b/a Highland Hospital) and Paramedics Plus — for 20 their allegedly deficient medical care of his son (who died in February 2019), in violation of the 21 Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, and 22 state law.1 Alameda Health moved to dismiss the claims under Federal Rule of Civil Procedure 23 12(b)(6) in part on the grounds that the plaintiff (1) did not plausibly plead an EMTALA claim 24 because he was admitted for treatment and (2) did not timely file the lawsuit as to the state 25 claims.2 The court grants the motion. 26 1 First Amend. Compl. (“FAC”) – ECF No. 14 at 2. Citations refer to material in the Electronic Case 27 File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 STATEMENT 2 The plaintiff’s son, Akin Lamar Ollison, was an inpatient at Highland Hospital when he died 3 on February 28, 2019.3 The plaintiff alleges the following about Akin’s medical condition and 4 treatment in February 2019. 5 Akin “presented to” Highland Hospital on February 18, 2019 “because of acute respiratory 6 distress.” Highland Hospital admitted him as an “overnight” inpatient, and a physician there 7 diagnosed him with suffering an “acute asthma exacerbation” and an upper respiratory infection 8 that likely triggered the acute asthma attack. Akin also was out of his inhaler and probably needed 9 a daily steroid inhaler. The hospital determined that Akin was a member of the Health Plan of San 10 Joaquin and that “it could not receive full payment for its billed emergency services from” that 11 health plan. “As a result, the following day on February 19, 2019,” Highland discharged Akin 12 “notwithstanding the fact . . . that he was still experiencing acute respiratory distress” and “while 13 refusing to provide the decedent with the necessary and prudent medications” to address his 14 condition, including an Albuterol inhaler, an AVAR inhaler, and Prednisone. Highland discharged 15 Akin with a prescription and told him to go to San Joaquin County to fill it, “knowing that it was a 16 strong possibility that the decedent would suffer another severe respiratory attack before he could 17 return to San Joaquin County.” Akin was unable to go to San Joaquin County and was unable to 18 obtain his “needed medications” over the next few days. As a result, his condition worsened.4 19 In the late evening on February 21, 2020, Akin’s cousin called 911 because Akin (then in 20 Oakland) was suffering another episode of acute respiratory distress and was unable to get 21 adequate oxygen to his body and brain. The dispatcher told the cousin to stay on the line until the 22 paramedics arrived. During the call, the cousin told the dispatcher that Akin had taken three 23 “breathing treatments” earlier that day and was still in acute respiratory distress. The dispatcher 24 told the cousin to tell Akin to keep using the nebulizer until the paramedics arrived.5 25

26 3 FAC – ECF No. 14 at 14 (¶ 46). 27 4 Id. at 12 (¶ 37). 1 The Oakland Fire Department responded to the scene first and did not administer medical 2 treatment (because they said that they would wait for the paramedics to arrive and treat Akin).6 3 Paramedics from co-defendant Paramedics Plus arrived “as duly authorized agents” for Highland 4 Hospital and “also chose not to render emergency medical treatment to the decedent,” including 5 by not measuring or assessing his vital signs, taking his medical history, or giving him oxygen or a 6 commonly used inhaler such as Atrovent or Albuterol. Family members pleaded with the 7 Paramedics Plus emergency technicians to administer medication or render some other appropriate 8 treatment, but they put Akin into a wheelchair, rolled him to the ambulance, and transported him 9 to Highland Hospital.7 10 Akin was still alive when he was placed in the ambulance, but on the way to the hospital, he 11 became “pulseless and apneic and [was] determined to be in cardiac arrest.”8 Only then did 12 Paramedics Plus begin administering medical treatment and monitoring Akin’s acute respiratory 13 distress.9 The trip to the hospital took 10 minutes. When Akin arrived at the hospital, Paramedics 14 Plus employees were applying CPR techniques (but not giving oxygen), which meant that on 15 arrival at the hospital, Akin had been “oxygen deprived for approximately 10 minutes.”10 When 16 Akin arrived at Highland Hospital’s emergency room, he did not receive oxygen for 17 approximately 35 minutes, which means that in total, he was deprived of oxygen for 35 to 45 18 minutes. As a result, he suffered adverse medical conditions, including brain herniation, anoxic 19 brain injury, and status asthmaticus, which “contributed” to his death on February 28, 2019.11 20 Highland Hospital “refused to provide these immediately necessary emergency medical services 21 22 23

24 6 Id. at 13 (¶ 39). 25 7 Id. at 13–14 (¶ 40). 8 Id. at 14–15 (¶ 41). 26 9 Id. at 14–15 (¶¶ 41–42). 27 10 Id. at 15 (¶ 42). 1 because it knew it could not receive its customary rate for its services from ‘Health Plan of San 2 Joaquin,’ an out-of-network provider.”12 3 To lower the increased pressure in Akin’s brain, hospital employees performed an external 4 ventricular drain, but they did not follow the protocols for the appropriate dosages of the 5 medications Propofol, Mannitol, and Fentanyl, which fell below the standard of care and also 6 caused his death.13 7 The plaintiff charges both defendants with (1) two counts of violating EMTALA, (2) one 8 count for declaratory relief, (3) one count of medical malpractice, (4) breach of the implied 9 covenant of good faith and fair dealing, (5) negligent infliction of emotional distress, and (6) loss 10 of consortium.14 11 The plaintiff made a written claim under California’s Government Claims Act to Highland 12 Hospital on June 8, 2019.15 The hospital rejected the claim in a letter dated August 23, 2020 that 13 told the plaintiff that he had six months to file a state-court action.16 The plaintiff was incarcerated 14 from November 29, 2019 to March 24, 2020.17 He filed this lawsuit on July 21, 2020.18 15 The court held a hearing on December 3, 2020. All parties consented to magistrate-judge 16 jurisdiction.19 17 LEGAL STANDARD 18 A complaint must contain a “short and plain statement of the claim showing that the pleader is 19 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 20 which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A 21

22 12 Id. at 16 (¶ 46). 23 13 Id. at 23 (¶ 77). 24 14 Id. at 18–28 (¶¶ 52–92). 25 15 Claim, Ex. A to Tanimasa Decl. – ECF No. 24-1 at 4. 16 Letter, Ex. B to id. – ECF No. 241-1 at 6–7. 26 17 Ollison Supp. Decl. – ECF No. 33 at 1–2 (¶¶ 2–3). 27 18 Compl. – ECF No. 1. 1 complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 2 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 3 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 4 raise a claim for relief above the speculative level[.]” Twombly, 550 U.S. at 555 (cleaned up). 5 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which 6 when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 7 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 8 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 10 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 11 unlawfully.” Id. (citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are 12 merely consistent with a defendant’s liability, it stops short of the line between possibility and 13 plausibility of ‘entitlement to relief.’” Id. (cleaned up) (quoting Twombly, 550 U.S. at 557). 14 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 15 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 16 848 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up). 17 18 ANALYSIS 19 The court grants the motion to dismiss the EMTALA claims on the merits and the state claims 20 on procedural grounds. 21 22 1. EMTALA claims 23 “EMTALA imposes two duties on hospital emergency rooms: a duty to screen a patient for an 24 emergency medical condition, and, once an emergency condition is found, a duty to stabilize the 25 patient before transferring or discharging him.” Baker v. Adventist Health, Inc., 260 F.3d 987, 992 26 (9th Cir. 2001) (citing 42 U.S.C. § 1395dd and Jackson v. E. Bay Hosp. (Jackson II), 246 F.3d 27 1248, 1254–55 (9th Cir. 2001)). 1 EMTALA defines an “emergency medical condition” in relevant part as 2 [A] medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could 3 reasonably be expected to result in — 4 (i) placing the health of the individual . . . in serious jeopardy, (ii) serious impairment to bodily functions, or 5 (iii) serious dysfunction of any bodily organ or part[.] 6 7 42 U.S.C. § 1395dd(e)(1)(A). Under EMTALA, 8 If any individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either — 9 (A) within the staff and facilities available at the hospital, for such further medical 10 examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection 11 (c) of this section. 12 13 Id. § 1395dd(b)(1). EMTALA defines “to stabilize” in relevant part as “to provide such medical 14 treatment of the condition as may be necessary to assure, within reasonable medical probability, 15 that no material deterioration of the condition is likely to result from or occur during the transfer 16 of the individual from a facility[.]” Id. § 1395dd(e)(3)(A). 17 EMTALA further provides that “[i]f an individual at a hospital has an emergency medical 18 condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this 19 section), the hospital may not transfer the individual,” absent certain exceptions not at issue here. 20 Id. § 1395dd(c)(1). The term “transfer” includes discharging a patient from a hospital. Id. 21 § 1395dd(e)(4). 22 Congress enacted EMTALA to prevent “patient dumping,” a practice whereby hospitals 23 “dump” patients “who [a]re unable to pay, by either refusing to provide emergency medical 24 treatment or transferring patients before their conditions were stabilized.” Jackson v. E. Bay Hosp. 25 (Jackson I), 980 F. Supp. 1341, 1345 (N.D. Cal. 1997) (citing Eberhardt v. City of Los Angeles, 62 26 F.3d 1253, 1255 (9th Cir.1995)). “EMTALA’s stabilization requirement ends when an individual 27 is admitted for inpatient care.” Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1168 (9th Cir. 1 state tort law, for what amounts to failure to treat’ and not to ‘duplicate preexisting legal 2 protections.’” Id. at 1168–69 (quoting Gatewood v. Wash. Healthcare Corp., 933 F.2d 1037, 1041 3 (D.C. Cir. 1991) and citing other cases). “After an individual is admitted for inpatient care, state 4 tort law provides a remedy for negligent care.” Id. at 1169. “If EMTALA liability extended to 5 inpatient care, EMTALA would be ‘converted into a federal malpractice statute, something it was 6 never intended to be.’” Id. (cleaned up) (quoting Hussain v. Kaiser Found. Health Plan, 914 F. 7 Supp. 1331, 1335 (E.D. Va. 1996)). 8 Here, for the first visit to Highland Hospital on February 18, 2019, the plaintiff does not 9 plausibly plead that Akin was not stable when he was discharged. Baker, 260 F.3d at 992. He also 10 alleges that Akin was admitted as an inpatient, which ends liability under EMTALA. Bryant, 289 11 F.3d at 1168–69. For the second visit to Highland Hospital, Akin was admitted and treated, again 12 foreclosing any EMTALA claim. Id. The plaintiff’s remedies thus are those under state tort law. 13 Id. at 1169. 14 15 2. State Claims 16 Without a federal claim, at this stage of the case, the court generally would not exercise 17 supplemental jurisdiction over the state claims. 28 U.S.C. § 1367(a) & (c)(3); United Mine 18 Workers v. Gibbs, 383 U.S. 715, 726 (1966). But Alameda Health also contends that the lawsuit is 19 not timely because the plaintiff did not file it (1) within six months after Highland Hospital denied 20 the plaintiff’s written claim under California’s Government Claims Act, Cal. Gov’t Code § 21 945.6(a)(1), and (2) within one year under the applicable statute of limitations, Cal. Civ. Proc. 22 Code § 340.5 (enacted as part of the Medical Injury Compensation Reform Act (“MICRA”)). 23 (Liberally construed, the plaintiff’s state claims all charge medical malpractice, grounded in 24 Highland Hospital’s failure to provide appropriate medical care, which means that MICRA’s one- 25 year statute of limitations applies.20) 26 27 1 The plaintiff filed the lawsuit more than six months after Highland Hospital denied his claim, 2 which makes it untimely under the Government Claims Act. The plaintiff contends that the time to 3 file the lawsuit was extended by the time he spent in custody at Santa Rita jail.21 Cal. Civ. Proc. 4 Code § 352.1(a) (if a person is imprisoned at the time a cause of action accrues, the period of that 5 disability is “not part of the time limited for the commencement of the action, not to exceed two 6 years”). Akin died on February 28, 2019, and the plaintiff was not in custody when Highland 7 Hospital rejected his claim. In any event, § 352.1(a) does not apply to the deadline for claims 8 covered under the Government Claims Act. Id. § 352.1(b); McPherson v. Alamo, No. 15-cv- 9 03145-EMC, 2016 WL 7157634, at *5 (N.D. Cal. Dec. 8, 2016); see also Ruiz v. Ahern, No. 20- 10 cv-001089-DMR, 2020 WL 4001465, at *4–6 (N.D. Cal. July 15, 2020) (in the context of a 42 11 U.S.C. § 1983 action, which is not subject to the Government Clams Act, discussing how courts 12 are split about whether § 352.1(a) still applies to pretrial detainees; a Ninth Circuit case said it did, 13 and a subsequent California Court of Appeals decision said that it applied only to state prisoners, 14 and not to detainees (including pretrial detainees) in county jail).22 15 Even if the plaintiff had filed the lawsuit by six months after Highland Hospital’s rejection 16 letter, the filing was more than one year after his son’s death, which makes it untimely under the 17 one-year MICRA statute of limitations. “[C]ourts have held that parties must comply with both 18 Government Claims Act requirements and § 340.5. . . .” Lozano v. Cty. of Santa Clara, No. 19-cv- 19 02634-EMC, 2019 WL 6841215, at *9 (N.D. Cal. Dec. 16, 2019) (emphasis in original) (citing, 20 “e.g.,” Roberts v. Cty. of Los Angeles, 175 Cal. App. 4th 474, 381 (2009)), appealed on other 21 grounds, Opening Brief, No. 20-15992 – ECF No. 13 (Sept. 25, 2020). In Roberts, the court 22 construed the one-year MICRA statute of limitations “‘as the outer limit by which a lawsuit may 23 be filed against a public health care provider. This way, MICRA can apply to public health care 24

25 21 Opp’n – ECF No. 26 at 3–4 (citing Cal. Code Civ. P. 352.1(a)). 26 22 On this briefing, given that the plaintiff is representing himself and only one court in the Ninth Circuit has addressed the issue, the court does not reach Alameda Health’s argument that the 27 Government Claims Act’s six-month presentment also bars the EMTALA claim. Mot. – ECF No. 24 at 12–13 (citing Sanders v. Palomar Med. Ctr., No. 10-CV-0514MMA, 2010 WL 2635627, at * 4–5 1 providers without conflicting with the Government Claims Act.’” Id. (quoting Roberts, 175 Cal. 2 App. 4th at 381). 3 4 3. Other Issues 5 Alameda Health also identifies the plaintiff’s failure to comply with California’s survival 6 statute’s procedural requirements for the EMTALA and state claims.23 Cal. Civ. Proc. Code § 7 377.20; Jackson I, 980 F. Supp at 1354. Under § 377.20, “a cause of action for or against a person 8 is not lost by reason of the person’s death,” whether the loss or damage occurs simultaneously 9 with or after the death, “but survives subject to the applicable limitations period.” Cal. Civ. Proc. 10 Code § 377.20(a)–(b). The decedent’s successor in interest or personal representative may 11 prosecute the action if he satisfies the requirements of California law. Id. § 377.30; Tatum v. City 12 & Cty. of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006) (citing Cal. Code Civ. Proc. §§ 13 377.30, 377.32); Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998).24 The plaintiff must allege 14 and prove that he has standing to sue in a representative capacity or as a successor in interest. 15 Byrd, 137 F.3d at 1131. The successor in interest or personal representative must file a certified 16 copy of the death certificate and an affidavit or declaration with the following: 17 (1) The decedent’s name. (2) The date and place of the decedent’s death. 18 (3) “No proceeding is now pending in California for administration of the decedent’s 19 estate.” 20 (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest. 21 (5) Either of the following, as appropriate, with facts in support thereof: 22 (A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 23 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.” 24 25

26 23 Id. at 11–15. 27 24 The California statue defines “decedent’s successor in interest” as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the 1 (B) “The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with 2 respect to the decedent's interest in the action or proceeding.” 3 (6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.” 4 (7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of 5 the State of California that the foregoing is true and correct. 6 || Cal. Civ. Proc. Code § 377.32 (apostrophes in the quoted text); Wishum v. California, No. 14-CV- 7 01491-JST, 2014 WL 3738067, at *2 (N.D. Cal. July 28, 2014). The plaintiff did not comply with g || these requirements. 9 CONCLUSION 10 The court reiterates what it said at the hearing: Mr. Ollison did a wonderful job with his filings 11 in the case. The problem is that there is not an EMTALA claim when someone is admitted for 12 treatment, and the state claims are time barred. The court thus grants the motion to dismiss. The 5 13 court is not certain that Mr. Ollison can cure the issues but he may file an amended complaint by S 14 || January 11, 2021. 3 15 The court also extends (again) its condolences to Mr. Ollison and his family. It is a terrible a 16 || thing to lose anyone, but it is particularly sad to lose a child. It is not the natural order of things.

18 IT IS SO ORDERED. 19 Dated: December 8, 2020 LAE 20

LAUREL BEELER

21 United States Magistrate Judge 22 23 24 25 26 27 28