Full opinion text
MEMORANDUM OPINION AND ORDER ON DEFENDANTS’ POST-TRIAL MOTIONS PAUL A. ZOSS, United States Magistrate Judge. /. BACKGROUND........................................................;..894 II. DESCRIPTION OF ISSUES RAISED IN THE MOTIONS.....................896 III. STANDARDS FOR CONSIDERING POST-TRIAL MOTIONS.................897 A. Motions for Judgment as a Matter of Law................................897 B. Motions for New Trial..................................................898 C. Motions to Amend Judgment............................................899 TV. ANALYSIS OF ISSUES RAISED IN THE MOTIONS.........................900 A. Does a Physician’s Certification Absolve a Hospital from Liability under EMTALA for Transferring a Patient to Another Hospital?.....900 1. Was Ms. Heimlicher’s emergency medical condition stabilized before she was transferred to Sioux Valley Hospital?................903 2. Did Ms. Heimlicher make a written request to be transferred to Sioux Valley Hospital? ...........................................904 3. Did Dr. Steele properly certify that the benefits from the transfer outweighed the risks?............................................905 B. Did the Court Err in Placing the Burden of Proof on the Certification Defense on Lakes Hospital? ..........................................909 C. Did the Court Err in Instructing the Jury on Dr. Steele’s Negligence?.....910 D. Did the Court Err in Instructing the Jury on Lakes Hospital’s Negligence?.........................................................911 E. Were the State-Law Negligence Claims against Lakes Hospital Preempted by EMTALA?.............................................912 F. Did the Court Err in Refusing to Submit Ms. Heimlicher’s Comparative Fault to the Jury?.......................................915 G. Did the Court Mislead the Jury into Assigning Lakes Hospital Double Liability?...........................................................918 II. Did the Court Err in Allowing Plaintiffs’ Counsel to Ask Expert Witnesses Questions Based on the Jury Instructions?...................920 I. Did the Court Err in Permitting the Jury to Treat Dr. Low as an Agent of Lakes Hospital?.............................................921 J. Did the Court Erroneously Allow Evidence of Grief into The Record?.....922 K. Did the Court Err in Allowing Photographs of the Fétus into Evidence?...........................................................927 L. Did the Court Err in Allowing Dr. Leavg to Testify to Matters Outside of His Expert Witness Designation?...................................928 M. Did the Plaintiffs Waive Their EMTALA Claim by Not Submitting to the Court Timely Requested Jury Instructions on the Claim?............931 N. Did the Court Err in Submitting Revised Damages Instructions to the Jury?...............................................................931 O. Did the Court Err in Reading the Instructions to the Jury Before Any Evidence Was Received?.............................................932 P. Did the Court Err in Not Granting the Various Motions for Mistrial Asserted by the Defendants Throughout the Trial?......................933 Q. Was the Verdict Irrational, Arbitrary, Excessive, or Unjust?...............937 V. CONCLUSION............................................................942 APPENDIX....................................................................942 DEFENDANTS’ JOINT EXHIBIT H.............................................943 PLAINTIFFS’ EXHIBIT 5.......................................................944 JOINT EXHIBIT 50, PAGE 15...................................................945 INSTRUCTION NO. 13..........................................................946 INSTRUCTION NO. 15..........................................................946 INSTRUCTION NO. 16..........................................................946 INSTRUCTION NO. 17..........................................................947 INSTRUCTION NO. 18..........................................................947 INSTRUCTION NO. 19..........................................................948 INSTRUCTION NO. 20..........................................................949 INSTRUCTION NO. 22..........................................................949 I. BACKGROUND The plaintiffs in this case are Laura A. Heimlicher and Lawrence W. Heimlicher. The defendants are Dickinson County Memorial Hospital, a hospital in Spirit Lake, Iowa (“Lakes Hospital” or “the Hospital”); and James 0. Steele, M.D., a specialist in emergency medicine working at Lakes Hospital. On February 11, 2004, Ms. Heimlicher began experiencing vaginal bleeding, pain in her abdomen, and contractions. Joint Ex. 50, pp. 1-3. She was 34 weeks pregnant. She called “911” from her home, and was taken by ambulance to the Lakes Hospital emergency room, where she was examined by Dr. Steele. Id., p. 6. He conducted a vaginal examination, and then ordered an ultrasound. Id., p. 8. The ultrasound was performed by Tracy Evans, an ultrasound technician employed by Lakes Hospital. As Ms. Evans was performing the ultrasound examination, she described to Dr. Steele what she was seeing. Based on Ms. Evans’s comments, Dr. Steele wrote in his notes that the ultrasound examination ruled out the possibility of a “placental abruption,” a serious condition where the placental lining separates from the uterine wall. Id., pp. 7-9. Dr. Steele made this notation even though he was not qualified to read ultrasound images, and he knew Ms. Evans was not qualified to read ultrasound images. He also knew that an ultrasound examination could never rule out a placental abruption. No radiologist was available at Lakes Hospital to read the ultrasound images, so Ms. Evans transmitted the images electronically to “Dr. Low,” a radiologist in Minnesota who was on call that night. Dr. Low and Ms. Evans then spoke on the telephone, and he told her his diagnosis was “mass vs. hemorrhage vs. fibroid.” See Def. Joint Ex. H, the “ultrasound worksheet,” a copy of which is attached to this ruling. Ms. Evans testified that she relayed this information to Dr. Steele. Dr. Steele testified he did not recall receiving this information, and he did not even know a radiologist had looked at the ultrasound images that evening. In fact, he testified he was not aware that Lakes Hospital had the capability of electronically sending ultrasound images to a radiologist for review. Dr. Steele testified that if he had been advised the images showed “mass vs. hemorrhage vs. fibroid,” he would have ordered an immediate C — section. Dr. Steele consulted by telephone with Dr. Michael M. Fiegen, an obstetrician in Sioux Falls, South Dakota, about Ms. Heimlicher’s care and about transferring her to Dr. Fiegen’s care at Sioux Valley Hospital in Sioux Falls. Sioux Valley Hospital is a larger hospital, with better facilities and a more specialized staff, about 100 miles away. Dr. Steele confirmed to Dr. Fiegen that Ms. Heimlicher’s placenta was not abrupting and her uterus was not ruptured, and told him her condition was stable. Based on these representations, Dr. Fiegen agreed to accept the transfer. Dr. Fiegen had Dr. Steele administer medication to Ms. Heimlicher to slow her contractions. The plaintiffs offered evidence that Dr. Steele failed to perform a proper differential diagnosis of Ms. Heimlicher’s condition, and if he had done so, he would have diagnosed an abrupting placenta. There is no dispute that if Dr. Steele had known Ms. Heimlicher’s placenta was abrupting, the applicable standard of care would have required him to order an immediate C— section. There also is no dispute that the Lakes Hospital staff was capable of performing C — sections, and could have performed one that evening. Inclement weather did not permit the use of a helicopter or an airplane, so Ms. Heimlicher was placed in a ground ambulance for transport to Sioux Valley Hospital. She was accompanied in the ambulance by Jennifer Helle, the nurse who had been caring for her at Lakes Hospital. After leaving Lakes Hospital in the ambulance, Ms. Heimlicher almost immediately began experiencing too-rapid contractions, profuse vaginal bleeding, and severe pain in her abdomen. At the same time, a fetal monitor was showing that the baby was in distress. Joint Ex. 50, p. 12. These symptoms were strong evidence of an abrupting placenta or a rupturing uterus. Nevertheless, Nurse Helle did not report the symptoms to Dr. Steele, or to anyone else, and the ambulance proceeded to Sioux Falls. Although there were hospitals capable of performing a C — section along the route to Sioux Falls, those options were not explored. As the ambulance traveled to Sioux Falls, the baby’s condition deteriorated significantly, and by the time the ambulance reached its destination, the baby’s heartbeat was almost nonexistent. Dr. Fiegen determined that Ms. Heimlicher was in “severe pain and clearly abrupting her placenta or rupturing the uterus.” An immediate C — section was performed, but the baby was stillborn. There is no dispute that the cause of death was a placental abruption, or that the baby likely could have been delivered without complications if a C — section had been performed at Lakes Hospital. The plaintiffs claim the defendants were negligent in failing to recognize Ms. Heimlicher’s need for an emergency delivery, and in transferring her to the Sioux Valley Hospital without first determining that her medical condition and the medical condition of the unborn child were not likely to deteriorate materially during the transfer. The plaintiffs also claim Lakes Hospital was liable under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, because Dr. Steele ordered Ms. Heimlicher’s transfer to Sioux Valley Hospital even though he knew she had an emergency medical condition that was not stabilized. Trial commenced before a jury on March 2, 2009, and after eight days of trial, the case was submitted. The jury returned a verdict in favor of the plaintiffs and against both defendants on the plaintiffs’ negligence claim, and against Lakes Hospital on the plaintiffs’ EMTALA claims. The jury found Dr. Steele to be 30% at fault, and Lakes Hospital to be 70% at fault. The jury awarded Ms. Heimlicher damages of $307,800 against Dr. Steele and $718,200 against Lakes Hospital, and awarded Mr. Heimlicher damages of $205,200 against Dr. Steele and $478,800 against Lakes Hospital. The total amount of damages awarded to the plaintiffs was $1,710,000. The defendants have filed five post-trial motions. Dr. Steele filed a motion for new trial and renewed motion for judgment as a matter of law, Doc. No. 136, and a motion to amend judgment, Doc. No. 139. Lakes Hospital filed a renewed motion for judgment as a matter of law, Doc. No. 132; a motion for new trial, Doc. No. 133, § XIII, joining in Dr. Steele’s motion for new trial, and a motion to amend judgment, Doc. No. 134. Dr. Steele joined in Lakes Hospital’s motion to amend judgment, Doc. No. 137. All of the defendants’ motions have been resisted by the plaintiffs. Doc. Nos. 142, 149, 150, 154, & 155. The defendants filed reply briefs. Doc. Nos. 156, 158. The court held telephonic arguments on the motions on May 13, 2009, and the motions are now fully submitted. II. DESCRIPTION OF ISSUES RAISED IN THE MOTIONS The defendants have raised a number of interrelated arguments in their various motions, and each defendant has joined in certain arguments raised by the other defendant. To address these arguments in an orderly manner, the court will break down the issues as follows: (A) Does a physician’s certification under EMTALA absolve a hospital from liability under EMTALA for transferring a patient to another hospital? (Doc. No. 132, § II; Doc. No. 133, §§ I & III; Doc. No. 133-2, pp. 3-4; Doc. No. 158, pp. 2-4); (B) Did the court err in placing the burden of proof on the certification defense on Lakes Hospital? (Doc. No. 133-2, p. 4); (C) Did the court err in instructing the jury that Dr. Steele could be found negligent for transferring Ms. Heimlicher? (Doc. No. 136, § I, ¶2; Doc. No. 136-2, p. 5); (D) Did Lakes Hospital have a right or duty to diagnose or treat Ms. Heimlicher? (Doc. No. 133, § VI; Doc. No. 133-2, p. 3; Doc. No. 158, pp. 1-2); (E) Are common law claims against a hospital based on negligent transfer preempted by EMTALA? (Doc. No. 132, § III; Doc. No. 133, § II; Doc. No. 133-2, p. 4; Doc. No. 158, pp. 4-5); (F) Did the court err in not submitting Ms. Heimlicher’s comparative fault to the jury? (Doc. No. 133, § IX(D); Doc. No. 133-2, p. 7; Doc. No. 136, § I, ¶ 3; Doc. No. 136-2, pp. 3-4; Doc. No. 156, ¶¶ 2-3); (G) Did the court, in giving Jury Instruction No. 17, mislead the jury into assigning Lakes Hospital double liability? (Doc. No. 158, pp. 1-2); (H) Did the court err in allowing plaintiffs’ counsel to ask expert witnesses questions based on the jury instructions? (Doc. No. 133, § VIII; Doc. No. 133-2, pp. 5-6; Doc. No. 136, § I, ¶1); (I) Did the court err in permitting the jury to treat Dr. Low as an agent of Lakes Hospital? (Doc. No. 133, § V); (J) Did the court erroneously allow evidence of grief to be presented to the jury? (Doc. No. 133, § IX(A); Doc. No. 133-2, p. 6; Doc. No. 136, § I, ¶ 1; Doc. No. 136-2, pp. 6-7); (K) Did the court err in allowing photographs of the fetus to be presented to the jury? (Doc. No. 133, § IX(B); Doc. No. 133-2, pp. 6-7; Doc. No. 136, § I, ¶ 1; Doc. No. 136-2, pp. 4-5); (L) Did the court err in allowing Dr. Leavy to testify to matters outside the designation of his testimony? (Doc. No. 133, § IX(C); Doc. No. 136, § I, ¶1); (M) Did the plaintiffs waive their EMTALA claim by not submitting to the court timely requested jury instructions on the claim? (Doc. No. 133, § IV); (N) Did the court err in submitting re-, vised damages instructions to the jury? (Doc. No. 133, § VII; Doc. No. 136, § I, ¶ 1); (O) Did the court err in reading the instructions to the jury before any evidence was received? (Doc. No. 133-2, pp. 2-3); (P) Did the court err in failing to grant the various motions for mistrial asserted by the defendants throughout the trial? (Doc. No. 136, § I, ¶ 4; Doc. No. 133, § XIII); and (Q) Was the verdict irrational, arbitrary, excessive, or unjust? (Doc. No. 133, §§ X, XI, & XII; Doc. No. 134; Doc. No. 136, § I, ¶ 1; Doc. No. 136-2, pp. 1-3; Doc. No. 139). III. STANDARDS FOR CONSIDERING POST-TRIAL MOTIONS A. Motions for Judgment as a Matter of Law The defendants’ renewed motions for judgment as a matter of law were filed under Federal Rule of Civil Procedure 50, which provides: (a) Judgment as a-Matter of Law. (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment — or if the motion addresses a jury issue not decided by a verdict, no later than 10 days after the jury was discharged — the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. Fed.R.Civ.P. 50(a) & (b). In considering a motion or renewed motion for judgment as a matter of law filed under Rule 50, the court must “decide the record contains evidence sufficient to support the jury’s verdict.” Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 863 (8th Cir.2004). In doing so, the court “ ‘must examine the sufficiency of the evidence in the light most favorable to [the prevailing parties] and view all inferences in [their] favor.’ ” Id. (quoting Racicky v. Farmland Indus., Inc., 328 F.3d 389, 393 (8th Cir.2003)). “Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining [the prevailing party’s] position.” Id. See Foster v. Time Warner Ent. Co., 250 F.3d 1189, 1194 (8th Cir.2001) (“Judgment as a matter of law is proper only when there is a complete absence of probative facts to support the conclusion reached so that no reasonable juror could have found for the nonmoving party.” Internal quotation marks, citation omitted.); Stevenson v. Union Pacific R. Co., 354 F.3d 739, 744 (8th Cir.2004) (same). B. Motions for New Trial The defendants’ motions for new trial were filed under Federal Rule of Civil Procedure 59(a), which provides, “The court may, on motion, grant a new trial on all or some of the issues — and to any party ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). Rule 59(a) has been explained as follows: In evaluating a motion for a new trial pursuant to Rule 59(a), “[t]he key question is whether a new trial should [be] granted to avoid a miscarriage of justice.” McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir.1994). A new trial is appropriate when the trial, through a verdict against the weight of the evidence or legal errors at trial, resulted in a miscarriage of justice. White v. Pence, 961 F.2d 776, 780 (8th Cir.1992). However, legal errors must adversely and substantially impact the moving party’s substantial rights to warrant relief. Fed.R.Civ.P. 61. Consistent with the plain language of Rule 59(a), the court may grant a partial new trial solely on the issue of damages. Fed.R.Civ.P. 59(a)(1)(A); see, e.g., Powell v. TPI Petro., Inc., 510 F.3d 818, 824-25 (8th Cir.2007) (remanding for partial new trial on damages). For example, a partial new trial on the issue of damages is appropriate when the jury’s verdict is so grossly inadequate as to shock the conscience or to constitute a plain injustice. Taylor v. Howe, 280 F.3d 1210, 1211 (8th Cir.2002); First State Bank of Floodwood v. Jubie, 86 F.3d 755, 759 (8th Cir.1996). “Each case must be reviewed within the framework of its distinctive facts.” Wilmington v. J.I. Case Co., 793 F.2d 909, 922 (8th Cir.1986) (citing Hollins v. Powell, 773 F.2d 191, 197 (8th Cir.1985)). “In determining whether or not to grant a new trial, a district judge is not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” King v. Davis, 980 F.2d 1236, 1237 (8th Cir.1992) (citing White, 961 F.2d at 780). “[T]he ‘trial judge may not usurp the function of a jury ... [which] weighs the evidence and credibility of witnesses.’” White, 961 F.2d at 780 (quoting McGee v. S. Pemiscot Sch. Dist., 712 F.2d 339, 344 (8th Cir.1983)). “Instead, a district judge must carefully weigh and balance the evidence and articulate reasons supporting the judge’s view that a miscarriage of justice has occurred.” King, 980 F.2d at 1237. “The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). On the issue of damages, the propriety of the amount of a verdict “is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of witnesses and which knows the community and its standards....’” Wilmington, 793 F.2d at 922 (quoting Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.1961)). “[T]he assessment of damages is especially within the jury’s sound discretion when the jury must determine how to compensate an individual for an injury not easily calculable in economic terms.” Stafford [v. Neurological Med., Inc.], 811 F.2d [470,] 475 [(8th Cir.1987) ]; see also EEOC v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790, 798 (8th Cir.2007) (same). McCabe v. Mais, 602 F.Supp.2d 1025, 1029-30 (N.D.Iowa 2008) (Reade, C.J.). C. Motions to Amend Judgment The defendants’ motions to amend judgment were filed under Federal Rule of Civil Procedure 59(e), which provides simply that a party may file a motion to alter or amend a judgment not later than ten days after the entry of judgment. Rule 59(e) has been explained as follows: The Eighth Circuit Court of Appeals has filled out this rather vague authorization for a new trial by explaining that “ ‘[t]he key question is whether a new trial should [be] granted to avoid a miscarriage of justice.’ ” Belk [v. City of Eldon], 228 F.3d [872,] 878 [(8th Cir.2000) ] (quoting McKnight ex rel Ludwig v. Johnson Controls, 36 F.3d 1396, 1400 (8th Cir.1994)). Thus, “[a] new trial is appropriate where the verdict is against the clear weight of the evidence, clearly excessive, or the result of passion or prejudice.” MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 930 (8th Cir.2004) (citing Ouachita Nat'l Bank v. Tosco Corp., 686 F.2d 1291, 1294 (8th Cir.1982)). In White v. Pence, 961 F.2d 776 (8th Cir.1992), the Eighth Circuit observed: With respect to motions for new trial on the question of whether the verdict is against the weight of the evidence, we have stated: “In determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence — it can ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain a verdict.’ ” Ryan v. McDonough Power Equip., 734 F.2d 385, 387 (8th Cir.1984) (citation omitted)____ These cases establish the fundamental process or methodology to be applied by the district court in considering new trial motions and are in contrast to those procedures governing motions for judgment as a matter of law. Id. at 780. Thus, the court in Pence concluded the district court may grant a new trial on the basis that the verdict is against the weight of the evidence, if the first trial results in a miscarriage of justice. Id.; see also Ogden [v. Wax Works, Inc.], 214 F.3d [999,] 1010 [ (8th Cir.2000) ] (stating that a motion for new trial should only be granted if the jury’s verdict was against the great weight of the evidence so as to constitute a miscarriage of justice) (citation omitted); Shaffer v. Wilkes, 65 F.3d 115, 117 (8th Cir.1995) (citing Pence for this standard); Nelson [v. Boatmen’s Bancshares, Inc.], 26 F.3d [796,] 800 [ (8th Cir.1994) ] (stating “[a] motion for new trial should be granted if, after weighing the evidence, a district court concludes that the jury’s verdict amounts to a miscarriage of justice.”); Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.1994) (observing that the correct standard for new trial is the conclusion that “the [jury’s] verdict was against the ‘great weight’ of the evidence, so that granting a new trial would prevent a miscarriage of justice.”). While a ruling on a motion for judgment as a matter of law is reviewed de novo, a motion for new trial is reviewed for “clear abuse of discretion.” See Belk, 228 F.3d at 878. Indeed, “ ‘[w]hen the basis of the motion for a new trial is that the jury’s verdict is against the weight of the evidence, the district court’s denial of the motion is virtually unassailable on appeal.’ ” Children’s Broad. Corp. [v. Walt Disney Co.], 357 F.3d [860,] 867 [(8th Cir.2004) ] (quoting Jones v. Swanson, 341 F.3d 723, 732 (8th Cir.2003) (internal quotations omitted)). Lopez v. Aramark Uniform & Career Apparel, Inc., 426 F.Supp.2d 914, 973-74 (N.D.Iowa 2006) (Bennett, J.). TV. ANALYSIS OF ISSUES RAISED IN THE MOTIONS A. Does a Physician’s Certification Absolve a Hospital from Liability under EMTALA for Transferring a Patient to Another Hospital? In both its renewed motion for judgment as a matter of law and its motion for new trial, Lakes Hospital argues that because Dr. Steele signed a “Consent for Transfer” form authorizing Lakes Hospital to transfer Ms. Heimlicher to Sioux Valley Hospital, Lakes Hospital cannot be held liable under EMTALA. See Joint Ex. 50, p. 15, a copy of which is attached to this ruling. The court addressed this issue preliminarily in its ruling on Lakes Hospital’s second motion for summary judgment (see Heimlicher v. Steele, 2007 WL 2384374 at *8-10 (N.D.Iowa, Aug.17, 2007)), but will revisit the issue now that the case has been fully tried. Lakes Hospital raises this issue in both its Rule 50 motion and its Rule 59(a) motion, so the court will consider the issue under the standards applicable to both rules. The court will decide whether the record contains sufficient evidence to support the jury’s verdict, examining the sufficiency of the evidence in the light most favorable to the plaintiffs and viewing all inferences in their favor. The court also will examine the record to determine whether there has been a miscarriage of justice, although the court will not reweigh the evidence or otherwise usurp the function of the jury. EMTALA (“the Act”), 42 U.S.C. § 1395dd (commonly known as the “Anti-Patient Dumping” Act), was enacted into law in 1985. “[T]he purpose of the statute was to address a distinct and rather narrow problem — the ‘dumping’ of uninsured, underinsured, or indigent patients by hospitals who did not want to treat them.” Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1136 (8th Cir.1996) (en banc). “A patient is ‘dumped’ when he or she is shunted off by one hospital to another, the second one being, for example, a so-called ‘charity institution.’ ” Id. Despite this “purpose,” the statute applies to any individual, whether insured or not, and the fact that a hospital’s motivation in a particular case was not to dump an uninsured or indigent patient does not defeat a claim under EMTALA. Id., 91 F.3d at 1137. Section (a) of EMTALA provides: In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists. Under this provision, if an individual comes to a hospital emergency room for examination or treatment, the hospital must provide an appropriate medical screening examination, within the hospital’s capabilities, to determine “whether or not an emergency medical condition ... exists.” However, EMTALA does not guarantee a proper diagnosis or provide a federal remedy for medical negligence. Summers, 91 F.3d at 1137. “EMTALA is not a federal malpractice statute and it does not set a national emergency health care standard; claims of misdiagnosis or inadequate treatment are left to the state malpractice arena.” Id. An “inappropriate” screening examination “is one that has a disparate impact on the plaintiff.” Id., 91 F.3d at 1138. As the Summers court explained: Patients are entitled under EMTALA, not to correct or non-negligent treatment in all circumstances, but to be treated as other similarly situated patients are treated, within the hospital’s capabilities. It is up to the hospital itself to determine what its screening procedures will be. Having done so, it must apply them alike to all patients. Id. A faulty screening, as opposed to disparate screening or refusing to screen at all, does not contravene the statute. Id., 91 F.3d at 1139. If, after screening a patient, a hospital determines that the patient has an “emergency medical condition,” the hospital must either (A) provide treatment “to stabilize” the medical condition, or (B) transfer the individual to another hospital. See EMTALA §§ (b)(1)(A) & (B). For a pregnant woman, an “emergency medical condition” is either (A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the woman or her unborn child in serious jeopardy; or (B) if she is having contractions, where there is inadequate time to effect her safe transfer to another hospital before delivery, or where that transfer may pose a threat to the health or safety of the woman or the unborn child. See EMTALA §§ (e)(1)(A) & (B). The term “to stabilize” means, “with respect to an emergency medical condition described in paragraph [ (e) ](1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph [ (e) ](1)(B), to deliver (including the placenta).” See EMTALA § (e)(3)(A). A hospital has the duty to stabilize a patient or effect a proper transfer only if the hospital has actual knowledge that the patient has an emergency medical condition. Summers, 91 F.3d at 1140; Baber v. Hospital Corp. of America, 977 F.2d 872, 883 (4th Cir.1992) (“[T]he plain language of the statute dictates a standard requiring actual knowledge of the emergency medical condition by the hospital staff’); see Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir.1996) (EMTALA’s stabilization and transfer requirements apply after the hospital determines that the patient has an emergency medical condition); Urban v. King, 43 F.3d 523, 526 (10th Cir.1994) (same). It is not enough that the hospital “should have known” the patient was suffering from an emergency medical condition; the hospital has to have actual knowledge. Baber, 977 F.2d at 883; see also Sauve v. Methodist Hosp., 33 Fed.Appx. 248, 248 (8th Cir.2002). “A reasonableness standard does not apply.” Bryant v. Adventist Health System/West, 289 F.3d 1162, 1166 (9th Cir.2002). “The Act does not hold hospitals accountable for failing to stabilize conditions of which they are not aware, or even conditions of which they should have been aware.” Baber, 977 F.2d at 883. If a hospital performs an appropriate screening of a patient and does not discover an emergency medical condition, then EMTALA would not forbid or regulate the transfer of the patient to another hospital. If a hospital does discover an emergency medical condition during screening, then the hospital can transfer the patient to another hospital after the condition has been stabilized. See EMTALA § (c)(1). Even if the emergency medical condition has not been stabilized, the hospital can transfer the patient to another hospital if either (i) the individual “in writing requests transfer to another medical facility”; or (ii) a physician signs a certification “that based upon the information available at the time of transfer, the medical benefits reasonably expected from appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer.” EMTALA § (c)(1)(A)® & (ii); see Jury Instruction No. 18. As the court held in Baber. EMTALA’s transfer requirements do not apply unless the hospital actually determines that the patient suffers from an emergency medical condition.... Accordingly, to recover for violations of EMTALA’s transfer provisions, the plaintiff must present evidence that (1) the patient had an emergency medical condition; (2) the hospital actually knew of that condition; (3) the patient was not stabilized before being transferred; and (4) prior to transfer of an unstable patient, the transferring hospital did not obtain the proper consent or follow the appropriate certification and transfer procedures. Baber, 977 F.2d at 883. Applying these principles to this case, for the Heimlichers to prove their EMTALA claims against Lakes Hospital, they first had to prove all of the following: (1) Ms. Heimlicher came to Lakes Hospital and requested examination or treatment for a medical condition; (2) she had an emergency medical condition; and (3) Lakes Hospital had actual knowledge that she had an emergency medical condition. None of these matters was seriously disputed at trial. Ms. Heimlicher was brought to Lakes Hospital by ambulance for examination and treatment of vaginal bleeding, pain in her abdomen, and premature uterine contractions, all serious symptoms in a woman who is 34 weeks pregnant. It was obvious that her condition fell within the definition of an “emergency medical condition” under either subsection (e)(1)(A) or subsection (e)(1)(B) of the Act. In section I, paragraph B of Dr. Steele’s “Consent For Transfer” form, he checked the box stating that Ms. Heimlicher was a “patient with an emergency medical condition ” See Joint Ex. 50, p. 15 (emphasis added). Because Dr. Steele signed the form, and Jennifer Helle, the Lakes Hospital nurse who was attending Ms. Heimlich-er, witnessed the form (see Id., § H.D.2.), they both obviously had actual knowledge that Ms. Heimlicher had an emergency medical condition. As discussed in Section IV.D. of this ruling, infra, their knowledge was imputed to Lakes Hospital. See Jury Instruction No. 17. Under these circumstances, Lakes Hospital was prohibited by the Act from transferring Ms. Heimlicher to another hospital absent at least one of the following three justifications: (1) her emergency medical condition was stabilized (EMTALA § (c)(1)); (2) her emergency medical condition was not stabilized, but she requested transfer to another hospital (EMTALA § (c)(Z )(A)(i)); or (3) her emergency medical condition was not stabilized, but a physician signed a certification that the medical benefits reasonably expected from medical treatment at another hospital outweighed the increased risks to her and her unborn child from the transfer (EMTALA § (c)(i)(A)(ii)). The court will examine each of these possible justifications for Ms. Heimlicher’s transfer in light of the evidence in this case. 1. Was Ms. Heimlicher’s emergency medical condition stabilized before she was transferred to Sioux Valley Hospital? The first possible justification for transferring Ms. Heimlicher was that her emergency medical condition had been stabilized before the transfer. The evidence does not support such a conclusion. While in the care of Lakes Hospital and its agents, Ms. Heimlicher was having contractions and was suffering from acute symptoms, including profuse vaginal bleeding and severe pain. The absence of immediate medical attention reasonably could have been expected to place her health and the health of her unborn child in serious jeopardy, and subjecting her to a 100-mile ambulance ride through a snow storm posed a clear threat to the health and safety of the mother and the fetus. Under these circumstances, Ms. Heimlicher’s condition could have been stabilized in only one of two ways. First, Lakes Hospital could have provided the medical treatment necessary to assure, within reasonable medical probability, that no material deterioration of her condition was likely to result from, or occur during, the transfer. This did not happen. The only treatment given to Ms. Heimlicher was medication to stop her contractions, which did not address the possible causes of her pain or vaginal bleeding, such as an abrupting placenta or a ruptured uterus. The treatment provided no assurances that her condition would not deteriorate during the ambulance ride. Second, Lakes Hospital could have delivered the child. See EMTALA § (e)(3)(A). The second option was not even considered. On the “Consent For Transfer” form, Dr. Steele marked the following box to certify that Ms. Heimlicher’s condition had been stabilized: “This patient with an emergency medical condition has been stabilized such that, within a reasonable degree of medical certainty, no material deterioration of this patient’s emergency medical condition is likely to result from or occur during transfer.” See Joint Ex. 50, p. 15, § I, ¶ B. The certification is both curious and troublesome. While at Lakes Hospital, Ms. Heimlicher continued to have contractions, pain, and vaginal bleeding. Dr. Steele knew these symptoms were continuing, and he knew that likely explanations for the symptoms were an abrupting placenta or a ruptured uterus, both of which posed a serious risk of material deterioration in Ms. Heimlicher’s condition during transfer, and the possibility of death to the mother and the fetus. Ms. Heimlicher’s condition dramatically worsened within a few minutes after she was placed in the ambulance. At that time, she had not yet been transferred to Sioux Valley Hospital, and she was still in the care of Lakes Hospital and its agents. The medical records establish that throughout the ambulance ride, it was increasingly apparent that her health and the health of her unborn child were in serious jeopardy, and that immediate medical treatment was necessary to address the deteriorating condition. Before the ambulance was more than a few miles from Lakes Hospital, it should have been obvious to Nurse Helle that Ms. Heimlich-er was far from stable. EMTALA’s requirement that the patient be stabilized before transfer did not disappear simply because the ambulance had started on its journey. The only way to stabilize Ms. Heimlicher’s condition was to deliver the baby, and this was not done. Dr. Steele marked the box on the form for certifying that Ms. Heimlicher’s emergency medical condition “has been stabilized,” and did not mark the box on the form for certifying that the patient’s emergency medical condition “has not been stabilized.” See Joint Ex. 50, p. 15, § I, ¶ C. Significantly, he then completed the part of the form for justifying the transfer of an unstabilized patient. See EMTALA § (c)(Z )(A)(ii). If Dr. Steele thought Ms. Heimlicher’s condition had, in fact, been stabilized, this part of the form should have been left blank. The fact that Dr. Steele completed this part of the form suggests that when he signed the form, he knew her condition had not, in reality, been stabilized. The jury found that Ms. Heimlicher’s emergency medical condition had not been stabilized at the time of transfer, and the evidence fully supports this finding. Therefore, the plaintiffs proved that the first possible justification for transferring her to another hospital did not exist. 2. Did Ms. Heimlicher make a written request to be transfeired to Sioux Valley Hospital? The second possible justification for transfer under EMTALA was that Ms. Heimlicher’s emergency medical condition had not been stabilized, but she requested, in writing, a transfer to another medical facility. The record establishes that she did not make such a request, although she did sign the “Consent For Transfer” form. In fact, Ms. Heimlicher signed the form in blank and on the wrong line — where a person would sign the form on behalf of a patient, not where the patient would sign. Later, someone placed an arrow from her signature to the correct line on the form, and checked the box “consent to transfer.” Ms. Heimlicher had the option of marking a box on the form to request a transfer, but she did not do so. Compare Joint Ex. 50, p. 15, with PI. Ex. 5. Under subsection (c)(l)(A)(i) of the Act, a written request for transfer authorizes a hospital to transfer a patient with an emergency medical condition that has not been stabilized to another hospital. A consent to transfer does not give a hospital this authority. Ms. Heimlicher never requested transfer from Lakes Hospital, so the second possible justification for transferring her to another hospital did not exist. 3. Did Dr. Steele properly certify that the beneñts from the transfer outweighed the risks? The third possible justification for transfer under EMTALA was that Ms. Heimlicher’s emergency medical condition had not been stabilized, but a physician signed a proper certification authorizing the transfer. Lakes Hospital states it “may transfer an unstabilized patient without incurring liability where a physician certifies that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risk to the individual, and in the case of labor, to the unborn child, from effecting the transfer.” Doc. No. 132-2, p. 2 (citing EMTALA § (c)G)(A)(ii)). The Hospital notes that Dr. Steele provided such a certification when he signed the “Consent For Transfer” form (Joint Ex. 50, p. 15). According to the Hospital, it “did not have an independent duty to determine the patient’s medical condition because it was entitled to rely on the certification of a physician.” The Hospital maintains that the jury should not have been permitted to look beyond the certification form itself, and argues the court erred in instructing the jury otherwise. Doc. No. 133-2, pp. 4-5; see Jury Instruction No. 19, ¶ 3 (requiring the certification to be “reasonable”). The Hospital argues the form provides it with a complete defense to the plaintiffs’ EMTALA claim. The plaintiffs respond by arguing that the “Consent For Transfer” form signed by Dr. Steele was seriously deficient, and therefore does not absolve Lakes Hospital from liability under EMTALA. The question presented to the jury at trial was whether, prior to Ms. Heimlicher’s transfer, Lakes Hospital “follow[ed] the appropriate certification ... procedure.” Baber, 977 F.2d at 883. The elements of the “certification” defense were described to the jury in Jury Instruction No. 20. To prove this defense, Lakes Hospital was required to prove (1) a physician who was acting as its agent or employee signed a certification that the medical benefits reasonably expected from the transfer of Ms. Heimlicher to the Sioux Valley Hospital outweighed the increased risks from the transfer to her and the unborn child, and (2) before signing the certification, the physician deliberated and weighed the medical risks and benefits of the transfer, and made a reasonable determination, based on the information available to him at the time, that the medical benefits reasonably expected from the transfer outweighed the increased risks from the transfer to Ms. Heimlicher and the unborn child. There is no dispute that Dr. Steele signed a “Consent For Transfer” form. On the form, he certified as follows: “Based on the expected benefits of delivery on G — section of premature fetus Si weeks and foreseeable risks of more bleeding, painful contractions to this patient, and based upon the information available to me at the time of this patient’s transfer, I believe the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risks to the patient’s (and/or fetus’) medical condition from effecting transfer.” Joint Ex. 50, p. 15 (emphasis in original). There is, however, some question about whether or not a defense based on Dr. Steele’s certification of “benefits versus risks” is even available to Lakes Hospital. On the Consent For Transfer form, Dr. Steele marked the box to certify that Ms. Heimlicher had been stabilized, and left unmarked the box that would have certified Ms. . Heimlicher’s emergency medical condition had not been stabilized. Compare § I, ¶6 with § I, ¶ C, on Joint Ex. 50. The certification of “benefits versus risks” under EMTALA subsection (c)(l )(A)(ii) applies to unstabilized patients, not to stabilized ones. Nevertheless, because the evidence establishes that Ms. Heimlicher was not, in fact, stabilized, the court will address Lakes Hospital’s argument on this issue. Lakes Hospital cites Lopez-Soto v. Hawayek, 175 F.3d 170, 175-176 (1st Cir.1999), in support of its position. In Lopez-Soto, the First Circuit Court of Appeals held that under EMTALA, the screening requirement is limited to emergency departments, but the stabilization requirement “unambiguously imposes certain duties on covered hospitals vis-a-vis any victim of a detected medical emergency, regardless of how that person enters the institution or where within the walls he may be when the hospital identifies the problem.” Id., 175 F.3d at 173. On pages 175 to 176 of Lopez-Soto, the pages specifically cited in Lakes Hospital’s brief (see Doc. No. 132-2, p. 2), the court made a passing reference to the certification process, but did not address any of the issues currently before this court. See Lopez-Soto, 175 F.3d at 176 (“Subsection (c) generally prohibits transfers of unstabilized patients unless ... a physician has certified that the medical benefits of an appropriate transfer outweigh the attendant risks, see [42 U.S.C.] § 1395dd(c)(Z )(A)(ii).”). The case is not helpful. Lakes Hospital also relies on Burditt v. United States Department of Health and Human Services, 934 F.2d 1362, 1371 (5th Cir.1991). The court in Burditt does provide some helpful analysis on this issue. The court held as follows: A hospital may violate [the certification] provision in four ways. First, before transfer, the hospital might fail to secure the required signature from the appropriate medical personnel on a certification form. But the statute requires more than a signature; it requires a signed certification. Thus, the hospital also violates the statute if the signer has not actually deliberated and weighed the medical risks and the medical benefits of transfer before executing the certification. / Likewise, the hospital fails to make the certification required by 42 U.S.C. § 1395dd(c)(l)(A)(ii) if the signer makes an improper consideration a significant factor in the certification decision. [Footnote omitted.] Finally, a hospital violates the statute if the signer actually concludes in the weighing process that the medical risks outweigh the medical benefits of transfer, yet signs a certification that the opposite is true. / Id., 934 F.2d at 1371. The court will review the record to see if a reasonable jury could have found that Lakes Hospital violated the certification provision of EMTALA in any of the ways identified in Burditt. There is no question that Dr. Steele signed the Consent for Transfer form, so the first potential violation identified in Burditt did not occur. There also is no evidence that he signed the form after reaching a conclusion that the medical risks actually outweighed the medical benefits of transfer. However, the evidence does suggest that Dr. Steele signed the form without actually deliberating and weighing the medical risks and benefits of the transfer, and he gave improper consideration to significant factors in the certification decision. On the form, Dr. Steele listed the expected benefits from the proposed transfer as “delivery on C — section of premature fetus 34 weeks.” He listed the foreseeable risks as “more bleeding, painful contractions.” The evidence establishes that these were not the true potential benefits and risks of transfer, and Dr. Steele was aware of this fact. The supposed benefit of “delivery on C — section” was not a benefit at all. C— sections were routinely performed at Lakes Hospital. There was no benefit from transferring Ms. Heimlicher to a hospital 100 miles away for a procedure that could have been performed without a transfer. The supposed expected benefit of better treatment for a premature baby delivered at 34 weeks also was not a true benefit. Although Sioux Valley Hospital had an advanced neonatal unit and Lakes Hospital did not, the fetus was beyond the age where complications from prematurity were likely. Lakes Hospital was completely capable of caring for a baby at 34 weeks or, if necessary, preparing the baby for transport to another hospital, such as Sioux Valley Hospital, after delivery. Thus, both of the “expected benefits” listed on the form were available at Lakes Hospital without the transfer. A reasonable jury could have found that Dr. Steele knew any expected benefits from the transfer were minimal. Dr. Steele listed the foreseeable risks of transfer as “more bleeding and painful contractions.” Both of these “risks” were present regardless of whether or not Ms. Heimlicher was transferred. Dr. Steele was well aware of other serious increased risks of the transfer that he did not list on the form. His records show that when he was evaluating Ms. Heimlicher, he considered diagnoses of a ruptured uterus, placenta previa, and placenta abruptio, all serious, life-threatening conditions, and he specifically discussed these possibilities with Dr. Fiegen before the transfer. He knew that transferring a patient with any of these conditions presented a risk of death to the mother and fetus. He also knew that any of these diagnoses would have precluded any consideration of transfer, and would have required an immediate C — section. Although he had not ruled out a ruptured uterus or an abrupted placenta, neither of these risks was listed on the form. In Vargas v. Del Puerto Hospital, 98 F.3d 1202 (9th Cir.1996), the Ninth Circuit Court of Appeals considered an appeal from a bench trial of an EMTALA claim. The plaintiff in that case, as here, argued that the certification was deficient because the certifying doctor failed to include an accurate summary of the benefits and risks. The court held as follows: The certification requirement is part of a statutory scheme with an overarching purpose of ensuring that patients ... receive adequate emergency medical care. Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255 (9th Cir.1995) (citing H.R.Rep. No. 241, 99th Cong., 1st Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 726-27). The purpose of the certification requirement in particular is to ensure that a signatory physician adequately deliberates and weighs the medical risks and medical benefits of transfer before effecting such a transfer. Congress surely did not intend to limit the inquiry as to whether this deliberation process in fact occurred to an examination of the transfer certifícate itself. While such a contemporaneous record may be the best evidence of what a physician was thinking at the time, we cannot accept the proposition that the only logical inference to be drawn from the absence of a written summary of the risks is that the risks were not considered in the transfer decision. Other factors might account for the absence of such a summary, such as the time-pressure inherent in emergency room decision-making. Although a contemporaneous record is certainly preferable, we believe it would undermine congressional intent to foreclose consideration of other evidence surrounding the transfer decision. See Romo v. Union Memorial Hosp., Inc., 878 F.Supp. 837, 844 (W.D.N.C.1995) (absence of summary of risk and benefits on transfer certifícate does not create EMTALA liability as a matter of law, but creates a jury question as to whether risk/benefit analysis was properly made by physician). Vargas, 98 F.3d at 1205. The Vargas court held the hospital was not entitled to prevail simply because a doctor signed a certificate, and the fact-finder was not limited to consideration of only the transfer certificate, but could consider other factors as well. The court held that the ultimate question as to whether a proper risk/benefit analysis was made was an issue for the fact-finder at trial. Id.; see also Romo v. Union Memorial Hosp., Inc., 878 F.Supp. 837, 844 (W.D.N.C.1995) (absence of summary of risks and benefits on transfer certificate does not create EMTALA liability as a matter of law, but creates a jury question as to whether risk/benefit analysis was properly made by physician); cf. Cherukuri v. Shalala, 175 F.3d 446, 450 (6th Cir.1999) (question is whether doctor was “negligent” in transferring a patient when, under the circumstances, the doctor knew or should have known the benefits of transfer did not outweigh the risks). This court agrees with the Burditt holding that a doctor’s certification “requires more than a signature.” Burditt, 934 F.2d at 1371. A hospital is not entitled to the benefit of the certification defense under section (e)(l)(A)(ii) of the Act “if the signer has not actually deliberated and weighed the medical risks and the medical benefits of transfer before executing the certification,” or “if the signer makes an improper consideration a significant factor in the certification decision.” Id. The evidence establishes that Dr. Steele did not deliberate and weigh the medical risks and benefits of the transfer, and he did not make a reasonable determination, based on the information available to him at the time, that the medical benefits reasonably expected from the transfer outweighed the foreseeable risks from the transfer to Ms. Heimlicher and her unborn child. See Jury Instruction No. 20, ¶ 2. By justifying the transfer with nonexistent “benefits” and “risks,” and ignoring the true foreseeable risks of the transfer, Dr. Steele gave improper consideration to significant factors in the certification decision. See EMTALA § (c)(l)(A)(ii). He over-valued minimal or insignificant expected benefits, and he ignored serious foreseeable risks. This invalidated his certification. Thus, the third possible justification for transferring Ms. Heimlicher to another hospital did not exist. To the extent Lakes Hospital is arguing it is not responsible for the acts or omissions of a doctor who signs an EMTALA certification form, the argument does not apply here. This is not a case where the doctor signing the form was an independent contractor, with no agency or employment relationship with the Hospital. Here, the doctor was an agent of Lakes Hospital, and the Hospital acted through him. In this circumstance, Lakes Hospital is liable for his acts and omissions. See discussion in Section IV.D. of this ruling, infra; see also Jury Instruction No. 17. Lakes Hospital’s renewed motion for judgment as a matter of law and its motion for new trial on this ground are denied. B. Did the Court Err in Placing the Burden of Proof on the Certification Defense on Lakes Hospital? Lakes Hospital argues, “Instruction No. 20 relating to the certification defense, was legally erroneous because it placed the burden of proof upon the hospital to prove that the medical judgment of the physician who certified that the benefits of transfer exceeded the risk, was reasonable when the hospital had no such duty under EMTALA as the hospital was entitled to rely upon the medical judgment of a physician.” Doc. No. 133-2, p. 4. Lakes Hospital cites no authorities in support of this argument. Generally, as explained in Jury Instruction No. 5, “The obligation to prove a fact, or ‘the burden of proof,’ is upon the party whose claim depends upon that fact.” See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1293 (8th Cir.1997) (“It is fundamental that a party pleading a claim or defense has the burden of proof to establish that claim or defense”) (citing Fed.R.Civ.P. 8 & 9). Because Lakes Hospital asserted the certification defense, it had the burden of proving the defense. Whatever the merits of this argument, it was not raised at trial, so it has been waived. See Fed.R.Civ.P. 51(d)(1)(A) (party may assert “error in an instruction actually given, if that party properly objected”) (emphasis added); Doyne v. Union Electric Co., 953 F.2d 447, 450 (8th Cir.1992) (Rule 51 requires litigants to raise timely objections to instructions to afford trial court an opportunity to cure a defective instruction and to prevent litigants from covertly relying on the error in order to ensure a new trial in the event of an adverse verdict); see also Dupre v. Fru-Con Eng’g, Inc., 112 F.3d 329, 334 (8th Cir.1997) (making objections “on the record” entails not only stating the objection, but also stating the specific grounds for that objection); Cincinnati Ins. Co. v. Bluewood, Inc., 560 F.3d 798, 805 (8th Cir.2009) (same). In any event, the evidence discussed in Section IV. A. of this ruling, supra, firmly establishes that the certification signed by Dr. Steele was inappropriate, so any error in the instruction was harmless. Rush v. Smith, 56 F.3d 918, 922 (8th Cir.1995) (verdict should be reversed only if error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected). Lakes Hospital’s motion for new trial on this ground is denied. C. Did the Court Err in Instructing the Jury on Dr. Steele’s Negligence? Dr. Steele argues the court erred in allowing the jury to find him negligent in ordering Ms. Heimlicher’s transfer from Lakes Hospital to Sioux Valley Hospital. Doc. No. 136, § I, ¶ 2. He states the following in his brief: In Jury Instruction No. 15, the court instructed the jury that it could find Dr. Steele was negligent in “transferring Ms. Heimlicher to Sioux Valley Hospital without first determining that her medical condition and the medical condition of the unborn child were not likely to materially deteriorate during the transfer.” The language utilized in this instruction appears to have been drawn from the definitions of the terms “to stabilize” and “stabilized” in EMTALA, 42 U.S.C. § 1395dd(e)(3)(A) and (B). The use of this language improperly injected an inapplicable statutory standard into the common law negligence equation. Doc. No. 136-2, p. 5. Dr. Steele argues that because a claim cannot be brought against a doctor under EMTALA, the cause of action described in Jury Instruction No. 15 also cannot be brought against him. This argument assumes that because there is a potential cause of action under EMTALA against Lakes Hospital, a common law claim of negligence arising out of the same facts cannot be pursued against Dr. Steele. Dr. Steele has cited no authorities to support this argument. A doctor commits malpractice if he commits an affirmative act of negligence or if his actions demonstrate either a lack of skill or care, or failure to give careful and proper attention to his patient. Lagerpusch v. Lindley, 253 Iowa 1033, 1037, 115 N.W.2d 207, 210 (1962); see Jury Instruction No. 13. To establish a prima facie case of medical malpractice, a plaintiff must produce evidence: (1) establishing the applicable standard of care, (2) demonstrating a violation of this standard, and (3) developing a causal relationship between the violation and the injury sustained. Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). As the Iowa Supreme Court held in Peppmeier v. Murphy, 708 N.W.2d 57 (Iowa 2005), To establish a prima facie case of medical malpractice, the plaintiff must submit evidence that shows the applicable standard of care, the violation of the standard of care, and a causal relationship between the violation and the harm allegedly e