Full opinion text
MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. This case arises out of medical care provided to a child in a hospital emergency room in February 2006. Wendy Guzman, individually and on behalf of her son, “T,” sued Memorial Hermann Hospital System, d.b.a. Memorial Hermann Southeast Hospital (“Memorial Hermann”) in November 2007. Guzman filed this suit in Texas state court, asserting a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (“EMTALA”), and Memorial Hermann timely removed on the basis of federal-question jurisdiction. Guzman amended her complaint to add state-law negligence claims against Memorial Hermann, Philip Haynes, M.D., Ph.D., Memorial Southeast Emergency Physicians, LLP (“MSEP”), and Emergency Consultants, Inc. (“ECI”). Dr. Haynes was the emergency-room physician who saw T. at Memorial Hermann. Dr. Haynes was a partner in MSEP, a limited liability partnership of emergency-room physicians. MSEP is a Michigan LLP registered to do business in Texas. MSEP had a contract with Memorial Hermann to provide emergency-physician staffing to the hospital. ECI, a Michigan corporation with its principal place of business in Michigan, had an administrative services agreement with MSEP to provide administrative and support services. On December 17, 2008, this court granted ECI’s motion to dismiss for lack of personal jurisdiction. (Docket Entry No. 53). Memorial Hermann has moved for summary judgment on Guzman’s EMTALA claims. (Docket Entry No. 95). Guzman responded, (Docket Entry No. 100), and moved for a continuance to conduct discovery under Rule 56(f). (Docket Entry No. 99). Memorial Hermann replied, (Docket Entry No. 103), Guzman filed a surreply, (Docket Entry No. 106), and Memorial Hermann filed a supplemental reply, (Docket Entry No. 108). Memorial Hermann also moved to strike the affidavit of Guzman’s expert witness, Dr. Stephen Hayden, M.D., (Docket Entry No. 104), and Guzman responded, (Docket Entry No. 107). After this court heard oral argument on the parties’ motions on May 28, 2009, Guzman filed a supplemental response, (Docket Entry No. 110), and Memorial Hermann filed a supplemental reply, (Docket Entry No. 113). Based on a careful review of the motions, responses, and replies, the parties’ submissions, the arguments of counsel, and the applicable law, this court grants Memorial Hermann’s motion for partial summary judgment and grants in part and denies in part Memorial Hermann’s motion to strike. Guzman’s Rule 56(f) motion is denied. The reasons for these rulings are explained below. I. The Summary Judgment Evidence A. Factual Background On February 12, 2006, Guzman’s son “T,” then seven years old, was feeling ill. His parents took him to the emergency room at Memorial Hermann in Houston, Texas. They arrived at the hospital at 7:39 a.m. and were taken to the triage area at 7:42 a.m. Guzman reported that her son had vomited seven or eight times during the night and complained of nausea. Guzman also stated that the child had been running a fever, but that she had not recorded his temperature with a thermometer. The triage nurse recorded the child’s temperature as 98.1 degrees, his blood pressure as 110/67, and his heart rate as 145. Under Memorial Hermann policy, all pediatric patients with a heart rate above 140 are categorized as Emergent Level 2. The triage nurse, April Ganz, placed Guzman’s son in this category based solely on his elevated heart rate. Memorial Hermann policy required all patients categorized as Emergent Level 2 to be seen by a physician. In accordance with this policy, Nurse Ganz completed triage at 7:47 a.m. and took the child to an examination room to be seen by Dr. Haynes. At 7:55 a.m., an emergency room nurse, Frank Blain, examined T., who complained of cough and generalized pain. (Docket Entry No. 95, Ex. A, at MHSE-0013). Guzman had given T. Motrin at 4:00 a.m. and Tylenol at 6:30 a.m. (Id.). Nurse Blain noted that the child’s respiratory effort was “even, unlabored, relaxed,” his respiratory pattern was “regular symmetrical,” and his breath sounds were “clear bilaterally.” (Id., at MHSE-0014). At 8:00 a.m., Dr. Haynes began taking the child’s medical history in advance of performing a physical examination. (Id., at MHSE-0009, MHSE-0010). Dr. Haynes learned that the child had been coughing, vomiting, and complaining of nausea. Dr. Haynes then examined “T.” In his deposition, Dr. Haynes testified that the child was “clinically stable, his saturation on room air was normal. He had clear breath sounds bilaterally, had no retractions, was in no respiratory distress.” (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 24:4-7). At this point, Dr. Haynes believed that the child likely had a virus. At 8:34 a.m., Dr. Haynes ordered several laboratory tests, including a complete blood count (CBC). A CBC includes a white blood cell differential test, which examines and classifies 100 white blood cells. One of the classifications is a band count. A high band count indicates that a patient is fighting off infection. At approximately 9:10 a.m., the CBC results were made available on the hospital’s computer, except for the white blood cell differential test results. The automated processor for the CBC had generated an abnormality flag, requiring a manual white blood cell differential test. That manual test was completed and the results available on the hospital’s computer system by 9:35 a.m., but Dr. Haynes did not see them that day. (Docket Entry No. 100, Ex. F, Deposition of Doug Mitchell, at 38:3-13). Sometime between 8:30 and 10:00 a.m., Dr. Haynes checked back on T. to ask how he was doing and to make sure he was getting fluids and everything he needed. (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 79:4-18). Shortly before 10:00 a.m., Nurse Blain told Dr. Haynes that the Guzmans wanted to know their son’s lab values. Blain said that the family was interested in going home and wanted to know what the doctor planned. When Dr. Haynes had this conversation with Nurse Blain, he knew that he had the CBC results except for the white blood cell differential test results. (Id., at 23:8-11). Dr. Haynes testified that when he looked at the lab values on the computer around 10:00 a.m. the differential count was not on the screen. (Id., at 20:13-19). At 10:13 a.m., Dr. Haynes diagnosed viral syndrome. Nurse Blain had recorded that at 9:58 a.m., T’s heart rate had decreased to 105-110. Dr. Haynes believed that the earlier elevated heart rate had been caused by an albuterol inhaler treatment or slight dehydration from vomiting. (Id., at 93:20-94:22). The emergency room staff had given T. a “fluid challenge by mouth to make sure that he was no longer vomiting.” (Id., at 23:21-24:9). Dr. Haynes believed that the improved heart rate was due to the IV fluids T. received in the emergency room. Dr. Haynes and the emergency room nurses believed that the child was stable during the entire time he was in the emergency room on February 12, 2006. Dr. Haynes testified that he made the decision to discharge, knowing that he had not seen the results of the white blood cell differential test, because he had examined T. and interviewed the family, found the child “clinically stable,” with an improved heart rate, no respiratory distress, “no longer hurting anywhere other than the place where his IV was,” and “the family wanted to go home.” (Id., at 23:17-24:14). Based on all that information “and on the lab information [he] had available to [him] at that time, [Dr. Haynes] felt [T.] was stable for discharge.” (Id., at 24:17-19). Because Dr. Haynes believed the child to be “stable for discharge,” (id. at 20:3-10), he was released from the hospital at approximately 10:15 a.m. The form Dr. Haynes completed to show the differential diagnosis based on the child’s symptoms indicated diabetes, diabetic ketoacidosis, gastroenteritis, and “UTI,” or urinary tract infection. (Docket Entry No. 95, Ex. A, at MHSE-0010). Dr. Haynes testified in his deposition that the circle on the form around “UTI” was a mistake; he had meant to circle “URI,” or upper respiratory infection. (Docket Entry No. 95, Ex. N, Deposition of Philip Haynes, M.D., at 111:3-12). According to Dr. Haynes, the child’s symptoms were not consistent with a urinary tract infection. (Id., at 111:8-9). Dr. Haynes believed that T. had a virus that was mostly affecting the upper respiratory system but could have also been affecting the gastrointestinal system. (Id., at 111:16-24). Dr. Haynes told the Guzmans that their son’s condition should begin to improve within 24 hours but to return to the emergency room if he was not better. Dr. Haynes did not see the white blood cell differential test results before discharging “T.” As a result, Dr. Haynes did not know that the band count was extremely high, indicating a bacterial infection. Dr. Haynes testified in his deposition that if he had seen the band count, he would have reevaluated the child, told the family members about the abnormal lab values, admitted the child to the hospital, ordered a blood culture, and spoken with his primary care physician about possibly giving the child antibiotics. (Id., at 24:20-25:23). The Guzmans brought their son back to the Memorial Hermann emergency room the following morning, February 13, 2006. They arrived around 7:00 a.m. The child was complaining of fever, vomiting, diarrhea, and abdominal and chest pain. A nurse recorded the following vital signs: blood pressure 110/30; pulse 74; respiratory rate 24, temperature 97.6 degrees. T. was classified Emergent Level 2 and placed in an exam room. At 7:59 a.m., Dr. Mohammed Siddiqi performed a physical examination and ordered laboratory tests and a chest x-ray. Based on the results of these tests, Dr. Siddiqi diagnosed the child with pneumonia between 9:30 and 9:45 a.m. At that time, T. had a 99.5 degree temperature. The child’s condition worsened while he was in the emergency room. At 11:15 a.m., he had a pulse of 148, a respiratory rate of 40, and a temperature of 101.2 degrees. At 11:23 a.m., Dr. Siddiqi ordered T. transferred to the pediatric intensive care unit at Memorial Hermann Children’s Hospital, where he could receive a higher level of care. Dr. Siddiqi also ordered antibiotics and fluids, which were administered to the child at 11:35 a.m. At 12:03 p.m., Dr. Siddiqi first suspected that the child might have sepsis, an inflammatory process that develops in response to infection but extends beyond the infection site to affect the whole body. Sepsis is characterized by an elevated heart rate, rapid breathing, abnormal body temperature, and decreased blood pressure. At 12:03 p.m., the child’s pulse was 148, blood pressure was 85/62, and respiratory rate was 48. Dr. Siddiqi testified in his deposition that the child’s drop in blood pressure and increase in respiratory rate from the previous readings caused him to suspect sepsis. At 12:30 p.m., Memorial Hermann Children’s accepted the transfer request but indicated that a “Response in 30 min.” would not occur due to the “Extenuating Circumstance[ ]” of “Bed Control.” (Docket Entry No. 100, Ex. L). Dr. Siddiqi arranged for American Medical Response (“AMR”), an ambulance company, to transport T. to Memorial Hermann Children’s. At 1:00 p.m., the child’s pulse was 162, his respiratory rate was 62, and his temperature was 99.1 degrees. (Docket Entry No. 95, Ex. A, at MHSE-0043). At 1:20 p.m., Dr. Siddiqi came to reevaluate the child and discuss the transfer process with the Guzmans. He also talked to them about the possible need for intubation. At 1:35 p.m., Dr. Siddiqi decided that T. needed to be intubated to protect his airway and respiratory system. Dr. Siddiqi “thoroughly explained [the] need for intubation to [the] patient’s parents [,] who verbalize[d] understanding.” (Docket Entry No. 95, Ex. A, at MHSE-0045). At 1:37 p.m., Dr. Siddiqi spoke with Dr. Erickson at Memorial Hermann Children’s Hospital. Dr. Erickson accepted the transfer request but told Dr. Siddiqi that he would first have to prepare a bed in the pediatric ICU. {Id., at MHLF-006). Tammy McCrumb, R.N., the nurse attending “T,” testified in her deposition that this “usually means it will happen pretty quickly, within an hour.” (Docket Entry No. 95, Ex. O, Deposition of Tammy McCrumb, at 92:21-24). Dr. Erickson also told Dr. Siddiqi that he wanted the child to be transported by the Memorial Hermann Children’s pediatric transport team instead of by AMR. (Docket Entry No. 95, Ex. A, at MHLF-006). The pediatric transport team could provide a higher level of care during transport than a standard ambulance because the team included a pediatric critical care nurse, a respiratory therapist, a paramedic, and could include a physician. (Docket Entry No. 95, Ex. O, Deposition of Tammy McCrumb, at 93:13-18). Dr. Erickson explained that the pediatric team was currently en route to Beaumont, Texas to pick up another patient. (Docket Entry No. 95, Ex. A, at MHLF-006). Dr. Siddiqi was aware of the time it would take to transfer T. but agreed with Dr. Erickson that the pediatric transport team would be better than a standard ambulance and decided to wait. (Id.). Dr. Siddiqi intubated the child at 1:50 p.m. (Id., at MHSE-0047). At 2:25 p.m., the transport team from AMR arrived. Nurse McCrumb testified in her deposition that no one had called AMR to cancel. Dr. Siddiqi called Dr. Erickson at Memorial Hermann Children’s. (Id., at MHSE-0040). Dr. Erickson reiterated that he wanted T. transported by the pediatric transport team, not AMR, and that there was still no available pediatric ICU bed. (Id.). At 3:15 p.m., Dr. Siddiqi went to the child’s bed to “discuss plan of care with patient’s parents and [the] delay of transfer due to Transport team picking up another patient in Beaumont before being able to pick patient up.” (Id., at MHSE-0046). T. had a severe allergic reaction, called “malignant hypothermia,” to one of the medications used for the intubation. This allergic reaction caused his body temperature to increase significantly in a short period. At 3:32 p.m., Tammy McCrumb, R.N., recorded that T. had a temperature of 107.9 degrees. Nurse McCrumb tried to locate Dr. Siddiqi but learned that he had left the hospital around 3:30 p.m. because his shift had ended at 3:00 p.m. At 3:52 p.m., Nurse McCrumb notified Dr. David Nguyen, another emergency room physician, of the child’s elevated temperature. Dr. Nguyen examined T. and ordered cooling blankets and ice packs applied. This occurred at 4:00 p.m. By 4:05 p.m., the child’s temperature had reached 111.2 degrees. At 4:13 p.m., Dr. Nguyen and Dr. Erickson spoke by phone and both agreed that the child needed to be transported to Memorial Hermann Children’s via Life Flight helicopter. At 4:20 p.m., Dr. Nguyen finalized the arrangements for Life Flight to transport “T.” The Life Flight helicopter arrived at 4:45 p.m. T. was transported to Memorial Hermann Children’s Hospital, where he received immediate care and was hospitalized in the intensive care unit. T. remained at Memorial Hermann Children’s Hospital for several weeks. He was diagnosed with septic shock, which caused organ injury. Although his condition improved, he still requires follow-up medical care and therapy. Guzman’s EMTALA claims against Memorial Hermann include failing to provide T. an appropriate medical screening examination on February 12, 2006, failing to stabilize his condition before discharging him that day, and failing to provide an appropriate transfer on February 13, 2006. Guzman also asserts a state-law negligence claim against Memorial Hermann for failing to provide adequate procedures for reporting lab results and for recalling patients to the hospital when abnormal lab results are reported. Guzman sought discovery of the medical records for all pediatric patients who came to Memorial Hermann’s emergency room with similar complaints and who were seen by Dr. Haynes between February 2005 and February 2006. Guzman asserted that these records were necessary to show disparate treatment to prove her EMTALA claim for failure to conduct an appropriate medical screening examination. Memorial Hermann argued that as a matter of law, Guzman was not alleging an EMTALA, as opposed to a negligence, claim. Guzman did not allege a failure or refusal on the part of the hospital staff to give T. the type of tests given to other patients with similar symptoms. Instead, Guzman alleged that T. received the usual battery of tests, but the doctor failed to read all the test results. Memorial Hospital argued that not only did this allegation fail to state a claim under EMTALA, but also that no records would show whether a doctor had failed to read results for tests that had been ordered. Memorial Hermann also argued that it would be highly burdensome to review the records sought and to redact information required to be kept confidential. After argument, this court ordered certain documents produced but declined to order Memorial Hermann to produce all the documents Guzman sought before resolving whether the EMTALA claims were viable. Memorial Hermann’s motion for summary judgment, and Guzman’s motion under Rule 56(f), followed. B. The Motion to Strike Portions of Dr. Hayden’s Affidavit Memorial Hermann moved to strike portions of the affidavit of Dr. Stephen Hayden, Guzman’s expert witness. Memorial Hermann argues that many of Dr. Hayden’s opinions and conclusions are incompetent summary judgment evidence because they are not based on personal knowledge, in violation of Rule 56(e) of the Federal Rules of Civil Procedure. Memorial Hermann also argues that Dr. Hayden’s attempt to interpret the hospital’s written policies violates Federal Rule of Evidence 1002 because the best evidence of the content and meaning of a policy is the policy itself. And Memorial Hermann argues that Dr. Hayden’s opinion that certain hospital actions violated EMTALA are legal conclusions, outside the province of an expert witness. Guzman responds that Dr. Hayden is an expert witness and his opinions need not be based on personal knowledge, but can be based on his review of the medical records, documents, and depositions in this case. Guzman argues that the affidavit does not violate the best evidence rule because Dr. Hayden is not testifying about the content of Memorial Hermann’s policies but instead about what they mean and how they apply to this case. Guzman argues that Dr. Hayden’s opinion that Memorial Hermann violated EMTALA is permitted under the Federal Rules of Evidence. Memorial Hermann’s objection that Dr. Hayden lacks personal knowledge of the hospital’s policies is unpersuasive. “Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Fed.R.Evid. 701, 702; Charles A. Wright & Victor James Gold, 27 Federal Practice & Procedure: Evidence 2d § 6025 (“By allowing experts to base opinions on facts or data that need not be admissible, Rule 703 permits opinions that are not based on personal knowledge.”). Such a “witness need not have observed or participated in the gathering of the data underlying his opinion. Rather, the personal knowledge requirement hinges on whether the expert personally analyzed the data that was ‘made known’ to him and formed an expert opinion based on his own assessment of the data within his area of expertise.” Huber v. Howard County, Md., 56 F.3d 61, No. 94-1651, 1995 WL 325644, at *5 (4th Cir. May 24, 1995) (citing Doe v. Cutter Biological, Inc., 971 F.2d 375, 385-86 & n. 10 (9th Cir.1992); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1423 & n. 15 (3d Cir.1991)); see also Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 349-50 (5th Cir.1983) (rejecting argument that expert’s opinion on causation was incompetent for lack of personal knowledge because, under Rule 703, an expert may base opinion testimony on facts or data presented at trial and the plaintiffs expert based his opinion testimony on the plaintiffs account of the incident and disclosed the underlying basis of his testimony); Marine Polymer Technologies, Inc. v. HemCon, Inc., 2009 WL 801826 (D.N.H. Mar.24, 2009) (“An expert who provides an affidavit with an opinion formed within his area of expertise and based on his own assessment or analysis of the underlying facts or data satisfies the personal knowledge requirement of Rule 56(e).”). Memorial Hermann does not contend that Dr. Hayden, who is board-certified in emergency medicine and has been actively attending to patients and practicing emergency medicine since 1993, lacks the education, credentials, or experience to testify as an expert witness under Rule 702 of the Federal Rules of Evidence, in the areas covered by his designation under Rule 26(b)(2) of the Federal Rules of Civil Procedure. Dr. Hayden’s affidavit states that he personally reviewed the following: the medical and laboratory records for T.; the depositions of Dr. Haynes, Nurse McCrumb, Dr. Siddiqi, Doug Mitchell, and Tom Flanagan; Memorial Hermann’s policies and procedures; and a printout of data relating to 92 pediatric patients seen by Dr. Haynes between February 2005 and February 2006. The affidavit sets out the factual basis for Dr. Hayden’s opinions, his interpretation of Memorial Hermann’s policies and procedures, and how the facts garnered from the records and documents led him to conclude that the medical screening, stabilizing care, and transfer in this case violated EMTALA. Dr. Hayden’s affidavit meets the Rule 56(e) personal knowledge requirement for an expert witness. Nor does Dr. Hayden’s affidavit violate Federal Rule of Evidence 1002. Under that rule, “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” Fed.R.Evid. 1002. The best evidence rule does not apply to evidence not offered to prove the contents of a writing. See, e.g., Harris Corp. v. Ericsson, Inc., 194 F.Supp.2d 533, 540 (N.D.Tex.2002) (overruling objection to documents based on best evidence rule where documents were offered to demonstrate the parties’ intent and not to prove any specific term or content of a writing); 2 Saltzburg, Martin & Capra, Federal Rules of Evidence Manual, § 1002.02 (8th ed. 2002) (“If the contents are not sought to be proved, the Best Evidence Rule is inapplicable ....”). Nor does the rule apply “when an expert testifies based in part on having reviewed writings ... because Rule 703 allows an expert to express opinions based on matters not put into evidence.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 579 (D.Md.2007) (citations omitted); see also Fed.R.Evid. 1002, Committee Note (“It should be noted, however, that Rule 703, supra, allows an expert to give an opinion based on matters not in evidence, and the present rule must be read as being limited accordingly in its application.”). The authenticity of the Memorial Hermann policies is undisputed. (See Docket Entry No. 103, at 6 (“MHSE admits the authenticity of all the policies produced in the litigation.”)). Dr. Hayden’s affidavit is not offered to prove the “contents” of those policies. Dr. Hayden testified in his affidavit about his application of the Memorial Hermann policies to the facts of this case, based on his review of the policies and other documents, including medical records. Memorial Hermann’s objection based on the best evidence rule is overruled. Finally, Memorial Hermann’s objection to Dr. Hayden’s opinions about whether T. had an emergency medical condition and whether he was stable in the emergency room on the basis that they go to “ultimate issues” is unpersuasive, but the objection to the opinion that EMTALA was violated is valid. “It is well established that Fed.R.Evid. 704 permits a witness to express an opinion as to an ultimate issue that must be decided by the trier of fact.” See United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984) (citing United States v. Miller, 600 F.2d 498, 500 (5th Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 434, 62 L.Ed.2d 327 (1979)). Rule 704 states that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a). Rule 704, however, does not permit expert witnesses to offer conclusions of law. C.P. Interests, Inc. v. California Pools, Inc., 238 F.3d 690, 697 (5th Cir.2001). To the extent Memorial Hermann challenges Dr. Hayden’s legal conclusions that EMTALA violations occurred, the objection is well-founded. See Martinez v. Porta, 601 F.Supp.2d 865, 866-67 (N.D.Tex.2009) (holding that expert opinions as to whether hospital violated EMTALA were inadmissible legal conclusions). The motion to strike is granted as to these legal conclusions but denied as to the remainder of the affidavit. II. The Applicable Legal Standards A. Summary Judgment Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 587 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 87 F.3d 1069, 1075 (5th Cir.1994) (en banc)). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 87 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008). Rule 56(f) authorizes a district court to order a continuance to permit additional discovery if the nonmovant shows that she “cannot for reasons stated present by affidavit facts necessary to justify the party’s opposition.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir.2006) (citing Wichita Falls Office Assoc. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.1992)). In requesting additional time for discovery under Rule 56(f), the nonmoving party must show why additional discovery is necessary and how that additional discovery will defeat the summary judgment motion by creating a genuine dispute as to a material fact. Id. (citing Beattie v. Madison County School Dist., 254 F.3d 595, 605 (5th Cir.2001)). The nonmoving party may not “simply rely on vague assertions that additional discovery will produce needed, but unspecified facts.” Id. (citing Brown v. Miss. Valley State Univ., 311 F.3d 328, 333 n. 5 (5th Cir.2002)). B. EMTALA Congress enacted EMTALA “to prevent ‘patient dumping,’ which is the practice of refusing to treat patients who are unable to pay.” Marshall v. East Carroll Parish Hosp., 134 F.3d 319, 322 (5th Cir.1998). “A patient is ‘dumped’ when he or she is shunted off by one hospital to another, the second being, for example, a so-called ‘charity institution.’ ” Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1136 (8th Cir.1996). The Act requires hospitals to provide an “appropriate medical screening examination” to any person who enters the emergency room. 42 U.S.C. § 1395dd(a). This examination must determine “whether or not an emergency medical condition ... exists.” Id. An “emergency medical condition” is one “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-(i) the placing of the health of the individual ... in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part....” 42 U.S.C. § 1395dd(b)(l)(A). If the hospital detects an emergency medical condition, the hospital must provide either “within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or for transfer of the individual to another medical facility ....” 42 U.S.C. §§ 1395dd(b)(l)(A) & (B). “If an individual at a hospital has an emergency medical condition which has not been stabilized ... the hospital may not transfer the individual unless” the individual makes a written request for transfer to another hospital or “a physician has signed a certification 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 risks to the individual ... and ... the transfer is an appropriate transfer ____“42 U.S.C. § 1395dd(c)(l). EMTALA establishes neither a federal medical malpractice cause of action nor a nationalized standard of medical care. Marshall, 134 F.3d at 322. A hospital does not violate EMTALA if the medical staff treating the patient fails to detect or misdiagnoses an emergency condition. See id. at 332-323 (“a treating physician’s failure to appreciate the extent of the patient’s injury or illness, as well as a subsequent failure to order an additional diagnostic procedure, may constitute negligence or malpractice, but cannot support an EMTALA claim”); Harry v. Marchant, 291 F.3d 767, 773 (11th Cir.2002) (recognizing that EMTALA is not intended to be a federal malpractice action). Congress enacted EMTALA “to prevent ‘patient dumping,’ ” not to guarantee proper emergency medical care. Marshall, 134 F.3d at 322. EMTALA “create[d] a new cause of action, generally unavailable under state tort law, for what amounts to failure to treat,” but does not “duplicate preexisting legal protections.” Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C.Cir.1991); see also Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 795 (2d Cir.1999) (“The core purpose of EMTALA ... is to prevent hospitals from failing to examine and stabilize uninsured patients who seek emergency treatment.”); Bryan v. Rectors & Visitors of Univ. of Va., 95 F.3d 349, 351 (4th Cir. 1996) (“[EMTALA’s] core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy” because “traditional medical malpractice law affords no claim for failure to treat.”); Brooks v. Maryland General Hospital, Inc., 996 F.2d 708, 710 (4th Cir. 1993) (“Under traditional state tort law, hospitals are under no legal duty to provide [emergency] care. Accordingly, Congress enacted EMTALA to require hospitals to continue to provide it.”); Malavé Sastre v. Hosp. Doctor’s Ctr., Inc., 93 F.Supp.2d 105, 109 (D.P.R.2000) (stating that EMTALA “filled a void which state tort law did not address”); Root v. Liberty Emergency Physicians, Inc., 68 F.Supp.2d 1086, 1091 (W.D.Mo.1999), aff'd, 209 F.3d 1068 (8th Cir.2000) (“EMTALA has been described as a ‘gap-filler’ for state malpractice law, giving patients who would otherwise have no claim in state court a forum to redress their injuries.”); Slabik v. Sorrentino, 891 F.Supp. 235, 237 (E.D.Pa.1995), aff'd 82 F.3d 406 (3d Cir. 1996) (citations omitted) (EMTALA “was designed to create a new cause of action for failure to screen and stabilize patients, not to federalize traditional state-based claims of negligence or malpractice.”). “[Ijnserting into EMTALA an action for violation of standard medical procedures for patients admitted and treated for several hours would convert the statute ‘into a federal malpractice statute, something it was never intended to be.’ ” Tank v. Chronister, 941 F.Supp. 969, 972 (D.Kan. 1996) (quoting Hussain v. Kaiser Found’n Health Plan, 914 F.Supp. 1331, 1335 (E.D.Va.1996)). The three potential EMTALA causes of action against Memorial Hermann in this case are for failing to perform an appropriate medical screening examination, failing to stabilize an emergency medical condition before transfer or discharge, and failing to conduct an appropriate transfer. An EMTALA plaintiff is not required to prove an improper or nonmedical motive for a hospital’s decisions or actions, such as the plaintiffs indigence, inability to pay, or lack of insurance. “The language of subsection 1395dd(a) simply refers to ‘any individual’ who presents to the emergency room.” Power v. Arlington Hospital Association, 42 F.3d 851, 857 (4th Cir.1994). The Supreme Court has held that proof of an improper motive is not required for a failure to stabilize claim. Roberts v. Galen of Virginia, 525 U.S. 249, 253, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). The Supreme Court in Roberts expressly declined to address whether such proof is required for other claims under EMTALA, but the circuit courts have held that there is no improper-motive requirement for any EMTALA cause of action. See Burditt v. U.S. Dept. of Health and Human Services, 934 F.2d 1362 (5th Cir.1991) (“As written, EMTALA prevents patient dumping without such a requirement.”); Summers, 91 F.3d at 1137 (holding that an EMTALA plaintiff is not required to show that the hospital’s actions or decisions were based on improper, nonmedical considerations); Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir.1995) (“Every court of appeals that has considered this issue has concluded that a desire to shirk the burden of uncompensated care is not a necessary element of a cause of action under EMTALA.”); Power, 42 F.3d at 857 (no proof of improper motive to “dump” is required to prevail on an EMTALA claim); Collins v. DePaul Hospital, 963 F.2d 303, 308 (10th Cir.1992) (“[A] plaintiff need not show the hospital’s motive was to dump a patient in order to recover under EMTALA.”); Gatewood, 933 F.2d at 1041 (“[A]ny departure from standard screening procedures constitutes inappropriate screening in violation of the Emergency Act. The motive for such departure is not important to this analysis, which applies whenever and for whatever reason a patient is denied the same level of care provided others .... ”); but see Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 272 (6th Cir. 1990) (requiring proof of improper motive for an EMTALA screening claim; a hospital’s decisions must be based on the patient’s indigence, lack of insurance, race, sex, politics, education, occupation, AIDS, or inebriated state, or personal dislike or antagonism between the medical personnel and the patient, etc.). Proof that a hospital’s inappropriate screening examination, failure to stabilize, or inappropriate transfer was based on the patient’s indigence, lack of insurance, race, sex, or other improper considerations is sufficient, but not necessary to make out an EMTALA violation. See Summers, 91 F.3d at 1137 (“We have no doubt that ‘dumping’ is covered by the statute, and that a refusal to screen a patient because he or she had no insurance would violate the statute, but other practices can violate it as well.”). III. Analysis In the second amended complaint, Guzman alleged that Memorial Hermann committed three EMTALA violations: failing to provide an “appropriate medical screening examination” on February 12, 2006 when her son was examined by Dr. Haynes; failing to stabilize the child’s emergency medical condition before discharging him that day; and failing to effect an appropriate transfer on February 13, 2006. Memorial Hermann has moved for summary judgment on all three EMTALA claims. Each is analyzed below. A. The “Appropriate Medical Screening” Claim: The First Visit to the Emergency Room EMTALA does not define “appropriate medical screening examination” other than to state that its purpose is to identify an emergency medical condition. Courts have uniformly held that whether a medical screening is appropriate is determined “by whether it was performed equitably in comparison to other patients with similar symptoms,” not “by its proficiency in accurately diagnosing the patient’s illness.” See Marshall v. East Carroll Parish Hosp. Serv., 134 F.3d 319, 322 (5th Cir.1998); see also Reynolds v. MaineGeneral Health, 218 F.3d 78, 84 (1st Cir.2000) (the plaintiff must proffer evidence “sufficient to support a finding that she received materially different screening than that provided to others in her condition. It is not enough to proffer expert testimony as to what treatment should have been provided to a patient in the plaintiffs position”). The plaintiff must show that the hospital treated him differently from other patients with similar symptoms. See Marshall, 134 F.3d at 324; see also Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995) (a hospital must provide a screening exam that is “reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and [must] provide[ ] that level of screening uniformly to all those who present substantially similar complaints.”). “It is the plaintiffs burden to show that the hospital treated her differently from other patients; a hospital is not required to show that it had a uniform screening procedure.” Marshall, 134 F.3d at 323-24. The plaintiff can meet this burden by pointing to differences in the screening examination she received as compared to the examinations of other patients at that hospital who presented with similar symptoms, or by providing evidence that the hospital did not follow its own standard screening procedures. See Battle v. Memorial Hospital at Gulfport, 228 F.3d 544, 558 (5th Cir.2000). The plaintiff may also meet this burden by showing that the hospital failed to provide any screening or provided such a cursory screening that it amounted to no screening at all, in that it was not designed to detect acute, severe symptoms. Correa, 69 F.3d at 1192-93; see also Summers, 91 F.3d at 1139 (“[W]e hold that instances of ‘dumping’ or improper screening of patients for a discriminatory reason, or failure to screen at all, or screening a patient differently from other patients perceived to have the same condition, all are actionable under EMTALA.”). “The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.” Correa, 69 F.3d at 1192. A de minimis deviation from a hospital’s standard screening policy is insufficient to establish an EMTALA violation. Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 523 (10th Cir.1994). EMTALA does not require hospitals to provide identical screening to patients presenting with different symptoms and does not require hospitals to provide screenings that are beyond their capabilities. Baker v. Adventist Health, Inc., 260 F.3d 987, 995 (9th Cir.2001). Because hospitals are generally in the best position to assess their own capabilities, “a standard screening policy for patients entering the emergency room generally defines which procedures are within a hospital’s capabilities.” Id; see also Repp, 43 F.3d at 522 (finding that a hospital is in the best position to assess its capabilities and thus violates EMTALA when it does not follow its own standard procedures). Courts have held that the test for satisfying the requirement of uniform treatment is whether the “challenged pro-cedure was identical to that provided [to] similarly situated patients as opposed to whether the procedure was adequate as judged by the medical profession.” Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir.1995) (citing cases from the D.C., Fourth, and Sixth Circuits). Negligence in the screening process or providing a faulty screening or making a misdiagnosis, as opposed to refusing to screen or providing disparate screening, does not violate EMTALA, although it may violate state malpractice law. See Marshall, 134 F.3d at 322 (citing Eberhardt, 62 F.3d at 1258 (holding that “[t]he hospital’s failure to detect the decedent’s alleged suicidal tendency may be actionable under state medical malpractice law, but not under the EMTALA”)); Baber v. Hosp. Corp. of Am., 977 F.2d 872, 879-80 (4th Cir.1992) (“Questions regarding whether a physician or other hospital personnel failed properly to diagnose or treat a patient’s condition are best resolved under existing and developing state negligence and medical malpractice theories of recovery.”); Summers, 91 F.3d at 1139; Correa, 69 F.3d at 1192-93; Collins v. DePaul Hosp., 963 F.2d 303, 307 (10th Cir.1992) (holding that the purpose of the screening is “to determine whether an ‘emergency medical condition exists.’ Nothing more, nothing less.”). “[T]he Act is intended not to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances. Thus, what constitutes an ‘appropriate’ screening is properly determined not by reference to particular outcomes, but instead by reference to a hospital’s standard screening procedures.” Gatewood, 933 F.2d at 1041. In the second amended complaint, Guzman alleged that Memorial Hermann failed to provide an appropriate medical screening because Dr. Haynes, the treating physician, failed to review all laboratory information and failed to rule out a bacterial infection or administer antibiotics before discharging “T.” (Docket Entry No. 90). Guzman alleged that the medical screening constituted disparate treatment because Dr. Haynes failed to follow the nauseá/vomiting protocol set out in Memorial Hermann’s Emergency Center Triage Guidelines, which required initiating a fever protocol and a saline lock, as well as performing a CBC,- BMP, and urinalysis. (Id.). Guzman also alleged that Memorial Hermann violated EMTALA’s screening requirement because Dr. Haynes failed to follow Memorial Hermann’s “monitoring, reassessment, and documentation” policies as well as its aftercare and follow-up policy. (Id.). 1. A Screening Reasonably Calculated to Determine the Existence of an Emergency Medical Condition Guzman argues that the summary judgment evidence shows that the medical screening examination Dr. Haynes ordered and that Memorial Hermann staff performed in this case was not completed and therefore not reasonably calculated to determine the existence of an emergency medical condition. According to Guzman, the examination was not completed because Dr. Haynes did not see the white blood cell differential test results before deciding to discharge T. and, as a result, could not and did not rule out a bacterial infection. Guzman cites Battle v. Memorial Hospital at Gulfport, 228 F.3d 544, 558 (5th Cir.2000), and Hoffman v. Tonnemacher, 425 F.Supp.2d 1120 (E.D.Cal. 2006), for the proposition that EMTALA required Dr. Haynes to rule out a bacterial infection in order to determine whether an emergency medical condition existed. Memorial Hermann argues that the allegations and summary judgment evidence that Dr. Haynes failed to read all the CBC test results, including the result that showed an elevated white blood count, taken as true, would support a claim for negligent care, but not a violation of EMTALA’s requirement to provide an appropriate medical screening. Citing Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 144 (4th Cir.1996), and Summers, 91 F.3d at 1138, Memorial Hermann argues that Guzman’s claim based on the failure to rule out a bacterial infection ignores the fact that under EMTALA, the actual diagnosis made by the treating physician is taken as a given. Dr. Haynes diagnosed T. with viral syndrome based on his medical history, the physical examination conducted, the vital signs, and the test results he did review. Memorial Hermann argues that because Dr. Haynes perceived the child to have viral syndrome, EMTALA did not require Dr. Haynes to obtain further test results or take other steps to rule out a bacterial infection. Guzman responds that the diagnosis cannot be taken as a “given” because it resulted from Dr. Haynes’s failure to complete the screening examination, not from a negligent misdiagnosis. Guzman cites Battle, 228. F.3d at 558, for the proposition that the Fifth Circuit has implicitly rejected the rule from Vickers and Summers that the doctor’s actual diagnosis is taken as a given in an EMTALA case. Guzman argues that there is a fact issue as to whether Dr. Haynes intentionally discharged her son “without seeing the results of the white cell manual differential,” which could violate EMTALA, or whether he “simply [forgot] to look,” which would be a negligent act that would not violate EMTALA. (Docket Entry No. 100, at 4). In determining whether a screening examination is appropriate under EMTALA, the touchstone is “whether, as § 1395dd(a) dictates, the procedure is designed to identify an ‘emergency medical condition’ that is manifested by ‘acute’ and ‘severe’ symptoms.” Jackson v. East Bay Hospital, 246 F.3d 1248, 1255 (9th Cir. 2001); see also Correa, 69 F.3d at 1192. A screening that is “so cursory” that it is “not designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury” violates EMTALA. Bryant v. Adventist Health System/West, 289 F.3d 1162, 1166 n. 3 (9th Cir.2002). But an emergency room physician is only “required by EMTALA to screen and treat the patient for those conditions the physician perceives the patient to have.” Hunt v. Lincoln Cty. Memorial Hosp., 317 F.3d 891, 893 (8th Cir.2003). It is undisputed that T. was taken to triage within a few minutes after he arrived at the Memorial Hermann emergency room hospital complaining chiefly of fever and vomiting. Nurse Ganz noted his complaints and the fact that his parents had given him Tylenol and Motrin. She took the child’s temperature and heart rate and determined that he was afebrile with a heart rate of 145. Nurse Ganz recorded that the child appeared distressed and uncomfortable, that his breath sounds were clear bilaterally and that his abdomen was soft and not tender. Based on his elevated heart rate, the child was categorized as Emergent Level 2 and taken to an examination room to be seen by a physician. Nurse Blain further assessed the child’s condition in the examination room. He noted that Guzman’s son complained of generalized pain and cough. Nurse Blain’s evaluation notes continue: Appears uncomfortable, well developed, well nourished, well groomed. Behavior is anxious, appropriate for age, cooperative, crying. Neuro: Level of consciousness is awake, alert, obeys commands. Oriented to person, place, time. EENT: Tympanic membrane clear on right ear and left ear. Ear canal clear on right ear and left ear. Oral mucosa is moist. Good dentition noted. Throat is clear. Cardiovascular: Capillary refill < 3 seconds. Hear tones SI S2. Edema is absent. Pulses are all present. Rhythm is regular sinus tachycardia Chest pain is denied. Respiratory: Respiratory effort is even, unlabored, relaxed. Respiratory pattern is regular symmetrical. Airway is patent. Sputum is non verbalized. Breath sounds are clear bilaterally. GI: Abdomen is flat, Non-distended. Bowel sounds present x 4 quads. GU: No deficits noted. Derm: No deficits noted. Musculoskeletal: No deficits noted. Injury description: atraumatic. (Docket Entry No. 95, Ex. A, at MHSE0013-0014). After Nurse Blain’s evaluation, Dr. Haynes arrived. He interviewed T. and his parents about the complaints and took a medical history. He conducted a thorough physical examination and concluded that the child was clinically stable and likely had some type of virus. Dr. Haynes ordered a CBC and a basic metabolic panel, which were done. He also ordered that the child be given fluids through an IV. At 9:58 a.m., the child’s heart rate had decreased to 105-110. Dr. Haynes looked at the CBC results, but at that time, according to Dr. Haynes, the white blood cell differential results were not posted on the computer system with the other results. Dr. Haynes then returned to reevaluate the child’s condition. He determined that the child was no longer in pain or dehydrated, his heart rate had gone down, he was not in respiratory distress, and he felt comfortable going home. Based on all this information collected at the hospital between 7:45 a.m. and 10:15 a.m., Dr. Haynes concluded that T. was stable for discharge. The undisputed facts in the record show that two nurses and one doctor examined T. and assessed his physical condition. They inquired about his symptoms, took a medical history, physically examined him, ordered a CBC, reviewed all the results except the white blood manual differential, and provided treatment. The case law makes it clear that such a screening examination is reasonably calculated to identify the existence of an emergency medical condition, even if the examination does not accurately reveal the patient’s actual medical condition. In Hoffman v. Tonnemacher, 425 F.Supp.2d 1120 (E.D.Cal. 2006), the plaintiff presented to the emergency room complaining of fever, chills with hyperventilation, nasal congestion, cough, chest pain, and numbness in her hands. The doctor took a medical history, performed a physical examination, and ordered x-rays and a urinalysis. No other tests were administered. Id. at 1123-24. Based upon the medical history, examination, and test results, the doctor diagnosed fever and bronchitis with a differential diagnosis of possible pneumonia. Id. The doctor did not believe the patient was suffering from an emergency medical condition and decided that discharge with medication was appropriate. The patient, however, was actually suffering from a severe bacterial infection that ultimately led to sepsis and severe complications. She sued under EMTALA and her expert witnesses opined that the screening examination she received was not calculated to identify an emergency medical condition because “an acceptable and appropriate medical screening had to include, at a minimum, a CBC, blood differential, blood culture, and echocardiogram.” Id. at 1134. The court rejected the plaintiffs argument, holding that the expert’s opinion was phrased in terms of medical negligence, not EMTALA liability. Id. at 1135. “The criticisms of Dr. Tonnemacher for failure to order additional tests are simply criticisms of violating the applicable medical standard of care, they do not show a screening so cursory that it was not designed to detect emergency conditions that may have been afflicting Hoffman.” Id. The court held that the examination the plaintiff received was reasonably calculated to identify an emergency medical condition, even though the condition was not actually identified. Id. ; see also del Carmen Guadalupe v. Negron Agosto, 299 F.3d 15, 20-21 (1st Cir.2002) (finding that the screening examination was sufficiently calculated to identify emergency condition when the patient “was triaged, [had] some vital signs done, had a physical exam by the doctor, and chest x-rays [and] laboratory tests were ordered,” medication was prescribed, and the patient was told to return in the morning for x-rays); Feighery v. York Hospital, 59 F.Supp.2d 96, 108-09 (D.Me.1999) (finding that the screening examination was sufficiently calculated to identify emergency condition when the hospital interviewed the patient about his symptoms, inquired into whether he was experiencing chest pain, conducted an EKG and blood work, and placed him on a heart monitor). The examination T. received was more thorough than the examination the patient received in Hoffman, who, like T., was misdiagnosed with a viral infection when he was suffering with a bacterial infection that escaped detection. Unlike that patient, however, T. received a CBC. Despite the absence of the tests that T. received, which the plaintiffs expert in Hoffman argued were essential to an adequate screening examination, the court in Hoffman found no EMTALA violation, as a matter of law. The screening examination T. received was not so cursory that it constituted no screening whatsoever. The facts of this case do not show a screening procedure so woefully inadequate as to amount to a “failure to treat.” See Gatewood, 933 F.2d at 1041. Guzman’s reliance on Battle and Hoffman is misplaced. In those cases, the hospital’s screening policies and procedures expressly required the medical staff to “rule out” a bacterial infection, and the staff failed to do so. See Battle, 228 F.3d at 558 (hospital’s protocol provided that “[i]nfants and elderly are usually hospitalized if no definitive source for fever/infection is determined”); Hoffman, 425 F.Supp.2d at 1139 (hospital policy required doctor to “confirm or rule out a bacterial process/infection”). There is no evidence in the record of a Memorial Hermann policy or procedure that required Dr. Haynes to rule out a bacterial infection before discharging a patient. As explained in more detail below, Memorial Hermann does not have a symptom-specific screening policy that required Dr. Haynes to completely review all parts of the CBC or other test results before concluding that no emergency medical condition was present. Contrary to Guzman’s argument, the Fifth Circuit in Battle did not implicitly reject the rule from Vickers and Summers that the doctor’s actual diagnosis is taken as a given. The hospital policy at issue in Battle stated that infants were usually hospitalized if a definitive source of their fever or infection was not determined. 228 F.3d at 558. The hospital argued that the doctor’s diagnosis of pneumonia and ear infection meant that the source of the child’s fever and infection had been determined. Id. The court held that the evidence in the record was conflicting as to whether the doctor had followed the hospital policy. Id. The doctor’s diagnoses of pneumonia and an ear infection, as well as a seizure disorder, did not allow the court to conclude that, as a matter of law, the source of fever or infection had been determined. The Fifth Circuit did not reject the rule that the actual diagnosis is taken as a given under EMTALA, but instead held that the evidence in Battle was conflicting as to whether the actual diagnosis was reached through a failure to follow the hospital’s policy. Moreover, the Fifth Circuit in Battle relied on its previous opinion in Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir.1998), for the EMTALA legal standard. The Marshall court, in turn, had relied heavily on the decisions in Vickers and Summers: Therefore, a treating physician’s failure to appreciate the extent of the patient’s injury or illness, as well as a subsequent failure to order an additional diagnostic procedure, may constitute negligence or malpractice, but cannot support an EMTALA claim for inappropriate screening. See Summers, 91 F.3d at 1138-39 (“ ‘faulty’ screening ... does not come within EMTALA”); Vickers, 78 F.3d at 143-44 (citation omitted) (EMTALA “does not impose any duty on a hospital requiring that the screening result in a correct diagnosis”). Most of the courts that have interpreted the phrase have defined it as a screening examination that the hospital would have offered to any other patient in a similar condition with similar symptoms. See Summers, 91 F.3d at 1138 (“An inappropriate screening examination is one that has a disparate impact on the plaintiff’); Vickers, 78 F.3d at 144 (emphasis in original) (“EMTALA is implicated only when individuals who are perceived to have the same medical condition receive disparate treatment”); .... Marshall, 134 F.3d at 323. These statements in Marshall were not overruled in Battle and remain good law in the Fifth Circuit. In the present case, there is no conflicting evidence as to what the actual diagnosis of viral syndrome meant or as to whether the diagnosis resulted from a failure to follow any Memorial Hermann policy. There is no conflict between Dr. Haynes’s diagnosis of viral syndrome and the fact that he did not see the band count before discharging “T.” Battle provides no support for Guzman’s argument that there is a disputed fact issue material to determining the reason for Dr. Haynes’s diagnosis of viral syndrome before he saw the results of the white blood cell differential test. The facts of this case are similar to those in Summers, 91 F.3d at 1138, which involved an alleged physician failure to obtain a certain test. In that case, like Hoffman, the test was not even ordered, as opposed to being ordered and conducted but not fully read. The plaintiff in Summers came to the emergency room complaining of snapping and popping noises in his chest. The hospital acknowledged that a patient making this complaint typically would be given a chest x-ray, but the plaintiff was not. The plaintiffs medical condition of a broken vertebra, sternum, and rib was missed and he brought an EMTALA claim for failure to provide an appropriate medical screening. The court stated that the plaintiffs argument that the nonuniform screening amounted to an EMTALA violation had “a surface appeal” but concluded that the claim was “nothing more than an accusation of negligence.” Id. “It would almost always be possible to characterize negligence in the screening process as non-uniform treatment, because any hospital’s screening process will presumably include a non-negligent response to symptoms or complaints presented by a patient.” Id. at 1138-39. As in Summers, the hospital physician’s failure to view the white blood cell differential test results that were part of the CBC before reaching a diagnosis of viral syndrome and deciding to discharge the patient is a negligence claim. Whether Dr. Haynes exercised his medical judgment and decided not to wait for the test results because he felt the child was stable for discharge or whether he simply forgot to look to see if the differential test results had been posted before discharging the child is irrelevant to whether the failure to read these results amounts to an EMTALA claim. The fact that Dr. Haynes did not see the results is important to the Guzman’s negligence claim and the reasons he gave for the failure are relevant to the medical malpractice claim, but do not allege or create a fact