Opinion
CASE NO. 13-80685-CIV-HURLEY
02-03-2016
Sandra Sunderland et al., Plaintiffs, v. Bethesda Health, Inc. et al., Defendants.
Clara R. Smit, East Brunswick, NJ, Rachel Laura Goldstein, Matthew Wilson Dietz, Law Offices of Mathew W. Dietz, P.L., Miami, FL, for Plaintiffs. Barbara Weiss Sonneborn, John David Heffling, Sonneborn Rutter & Cooney, PA, West Palm Beach, FL, for Defendants.
Clara R. Smit, East Brunswick, NJ, Rachel Laura Goldstein, Matthew Wilson Dietz, Law Offices of Mathew W. Dietz, P.L., Miami, FL, for Plaintiffs.Barbara Weiss Sonneborn, John David Heffling, Sonneborn Rutter & Cooney, PA, West Palm Beach, FL, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AS TO PLAINTIFFS JULIA FELTZIN, JAMES LIESE, SUSAN LIESE AND JOHN VIRGADAULA [DE Nos. 227, 233 & 239]
Daniel T. K. Hurley, United States District Judge
THIS CAUSE is before the Court on the Defendants' motions for summary judgment as to the disability claims of Plaintiffs Julia Feltzin, James Liese, Susan Liese, and John Virgadaula, arising under the Americans with Disabilities Act (the "ADA") and the Rehabilitation Act of 1973 (the "Rehabilitation Act"). Having carefully reviewed the evidentiary record and considered the parties' arguments and relevant legal authorities, the Court has determined to grant the Defendants motions for summary judgment for reasons more particularly expressed below.
I. BACKGROUND
A. Factual Background
Defendant Bethesda Hospital, Inc., and Bethesda Health, Inc. (cumulatively "Bethesda") own and operate Bethesda Memorial Hospital ("Bethesda Memorial") and Bethesda Hospital West ("Bethesda West"), both located in Boynton Beach, Florida. The four individual plaintiffs are deaf persons who communicate primarily through the use of American Sign Language ("ASL") and who were treated at Bethesda Memorial on various dates between 2012 and 2013. All plaintiffs allege that they requested live, on-site ASL interpreting services at some point during their interaction with the hospital's staff, but that the hospital failed to honor their requests. Plaintiffs contend this failure deprived them of effective communication with hospital staff in violation of their rights under the ADA and the Rehabilitation Act.
Bethesda maintains a policy governing communication with its hearing-impaired patients, "Operations Regulation 1118," eff. December 28, 1990, last updated on January 18, 2012. This policy, effective during the hospital admission of each of the above-named plaintiffs, provides at Section IV.C., "Procedure—Hearing Impaired:"
For the propose of rendering emergency health care, the Hospital provides telecommunication devices including a Teletypewriter (TTY) and a Video Remote Interpreting (VRI) Computer on Wheels. The Teletypewriter (TTY) unit is stored in the Communication Department for all areas to access to aid communication with patients or the next of kin who will be making health care decisions for the patient with impaired sensory, manual or speaking skills. The Video Remote Interpreting (VRI) computer is stored in the Nursing Supervisor's office and will be brought to the area requesting the unit by the Nursing Supervisor. When finished with the Teletypewriter (TTY) and/or the Video Remote Interpreting (VRI) computer, the TTY must be returned to Communications and the Video Remote Computer to the Nursing Supervisor's office.
In those circumstances where VRI does not accommodate patient need the nursing administrative supervisor and or risk management will be contacted to assist with providing an alternative communication
mode such as via Nationwide Interpreter Resource Inc. (561-715-2346).
The Human Resource department shall maintain a list of employees with documentation of competency to interpret using sign language. These employees shall be available during their shift to assist in the communication and interpreting with patients and visitors when VRI does not accommodate patient need.
[DE 235-4, p. 4].
Gary Ritson, Bethesda's former Vice-President for Risk Management, was at all material times the person responsible for ensuring compliance with Bethesda's accommodations policy for hearing-impaired persons. Mr. Ritson worked for Defendant since 1977 and was "personally" involved in creating policies or procedures for providing services for deaf patients. [DE 239-4, p. 9]. He testified that Bethesda routinely relies on VRI as an auxiliary aid for all foreign languages [DE 235-5, p. 16], except in instances when it is not functional, in which case a live, on-site interpreter is called [DE 241-28, pp. 6-8].
With regard to deaf patients, VRI involves use of a live ASL interpreter to facilitate communication with the patient via mobile video equipment. If a Bethesda patient expresses a preference for communicating through a live interpreter, his or her bedside clinician is responsible for initiating a request for VRI from the nursing supervisor [DE 235-5, p. 18]. The bedside nurses are entrusted with responsibility to determine the need for VRI services, and the hospital relies on their judgment to determine functionality of the VRI machines when they are used. If the machines are not operational, technical staff may be brought in to assist; if the problem cannot be corrected, the nursing supervisor must contact the "Administrator on Call" or Risk Manager for authority to hire a live, on-site interpreter [DE 235-25].
Ritson was never personally involved in a situation where VRI was not functioning, [DE 235-25]. He knew of one technical issue with the VRI in August 2014 [DE 239-5, p. 9] and was aware of 6 or 7 patients not wanting to use the VRI in 2011/12 (it is unknown if any those patients were one of the plaintiffs) [Id. at 10-11]. He testified that all complaints regarding VRI would go to him. [DE 239-5, p. 9]. In addition, Mr. Ritson testified he was unaware of any complaints regarding the hospital's staff not knowing how to operate the VRI [Id. at 12]. In summary, Mr. Ritson—the person responsible for Defendants for receiving all complaints relating to VRI—did not know of any specific complaint raised by Ms. Feltzin, Mr. Liese, Mrs. Liese and Mr. Virgadaula regarding VRI during their time in the hospital [Id. at 15 (although he did recall Ms. Feltzin due to another situation with her husband) ].
Dorothy Kerr, Bethesda's nursing supervisor, testified that the policy at Bethesda governing use of VRI technology allows any staff person to request the VRI from the nursing supervisor, and that, upon such request, she as nursing supervisor was responsible for delivering the VRI to the patient's room [DE 235-26, p. 8]. Kerr recalled only two occasions where she needed to obtain on-site ASL interpreters for hearing impaired patients due to VRI malfunctioning issues [DE 235-26, p. 13]; in both instances, pursuant to hospital policy, Kerr was required to obtain authorization for ordering an on-site interpreter from the "Administrator on Call" [DE 235-26, p. 18]. Other than these two incidents where VRI malfunctioning necessitated the use of on-site interpreters, Kerr was unaware of any complaints about VRI performance issues from patients or staff [DE 235-26, p. 19].
1. Julia Feltzin
Julia Feltzin's claims arise from visits to Bethesda Memorial on April 5-7, 2011 for heart problems and Bethesda West on April 22, 2013 for issues related to a fall. She was in her late 80s during these visits and had been deaf for most of her life as a result of having contracted meningitis at the age of two. The parties agree she is disabled within the terms of the ADA and RA [DE 227, p.4].
Ms. Feltzin's claims are based on the assertion that VRI is unsuitable for her in general due to her foreign birth in Sweden and difficulty with the English language. Plaintiff's expert Dr. Shephard-Kegl opined that VRI was not generally appropriate for her because she is not a native English speaker and a late learner of ASL [DE 52-2, pgs. 19 & 31]. Further, Ms. Feltzin claims she encountered problems with the operation of the VRI. The trial record contains limited details on what exactly transpired while she was in the hospital either time because Ms. Feltzin was not deposed and did not submit a response to the motion for summary judgement.
Ms. Feltzin was admitted to Bethesda Memorial April 5-7, 2011 complaining of dizziness [DE 227-14]. During this time, VRI was used a number of times [DE 227-11; DE 227-15] and handwritten notes were exchanged [DE 227-18, p. 11]. Ms. Feltzin, however, has asserted VRI did not work properly [DE 227-12, p.12]. Her attending physician testified that he does not recall any details about Ms. Feltzin's admission [DE 227-22]. Routine diagnostic tests were performed during her stay [DE 227-15], and she signed a consent form [DE 227-16] and discharge instructions [DE-227-17].
Bethesda West's records indicated that Ms. Feltzin was also admitted on April 22, 2013 from 12:22 p.m. until 3:59 p.m. She complained of dizziness and VRI was used to communicate with her [DE 227-7; DE 227-11]. She was seen by a physician after arriving and she communicated via VRI [DE 227-8]. Hospital records show that VRI was used two times; first for 22 minutes and then for 7 minutes. In this process two calls were apparently dropped [DE 227-11]. Aside from asserting that VRI did not work properly, Ms. Feltzin does not provide more specific complaints [DE 227-12, p.12; DE 68]. She does say that she requested an on-site interpreter but does not specify with whom she spoke (simply "hospital staff") or why she felt she needed an on-site interpreter was required [Id. ]. She signed discharge instructions indicating her understanding of the situation [DE 227-10].
Although Ms. Feltzin was a resident of Boynton Beach, Florida at one time, she currently resides at Nygatan 84, 5TR, 70213 Orebro Sweden [DE 227-1; DE 297-1]. Prior to her return to Sweden, she was in good health [DE 297-1, p. 9 ("Despite her age because she was ninety, I think she was doing fairly good") ]. She submitted no evidence showing her current health condition.
2. James Liese
James Liese's claims arise from a pre-operation evaluation and two admissions to Bethesda Memorial; the first admission was on June 7, 2011 and the second admission was on November 1-2, 2011. During this period, Mr. Liese was approximately 79 years of age. He reads written text, writes and reads lips well [DE 233-24; DE 233-15, pgs. 5, 10-11, & 15] and uses a videophone to communicate [DE 233-15]. The parties agree that Mr. Liese is disabled (deaf) within the terms of the ADA and RA [DE 233, p. 4].
The June 7thadmission was for outpatient hernia surgery, which lasted about one hour [DE 233-9]. He was accompanied by his wife, Susan, who is also hearing impaired. With respect to this admission, Mr. Liese asserts that VRI was inadequate and he contends that he should have had an on-site interpreter.
Hospital records indicate that VRI was used for 137 minutes on June 7th but they are not clear if all that time was attributable to Mr. Liese [DE 233-12]. Mr. Liese claims that VRI did not provide effective communication for three reasons: (1) the screen was at a 90 degree angle making it hard for him to see; (2) he has age-related macular degeneration, which made it hard for him to use VRI; and (3) "[t]here was also problems with the communication back and forth with the interpreter and the nurse and the screen was often unclear" [DE 68-4]. Mr. Liese acknowledged that VRI worked prior to his surgery [DE 233-15, p. 13]. An email, written by Mr. Liese on June 21, 2011 to June McMahon of the Florida Association of the Deaf, sums up Mr. Liese's complaints:
The interpreter on the VRI as [sic] not very good while my wife hear voice of the nurse talking but not understand what going on and the VRI interpreter did no sign then Nurse voice stop and the VRI sign which not very clear. Then my wife told the VRI interpreter shall sign same time with the Nurse. The VRI interpreter said she have problem to get the voice in her earmircphone from the nurse she need hear the nurse and then sign. Then I sign had to repeat few time before she understand what I said [DE 233-14].
Mr. Liese elaborated about his "habit of paying attention to the person [speaking] in front of" him in order to read their lips, which distracts him from the person signing [Id. ]. He greatly prefers simultaneous interpretation rather than consecutive because "I like to go fast" [DE 233-15, p. 15]. He ultimately identified no specific information he was unable to convey or understand, or how his treatment would have changed with alternative means of communication [DE 233-25; [DE 233-23, p. 9]. As a general matter, Plaintiffs' expert Dr. Shephard-Kegl opined that VRI was not appropriate for him because of his vision problems and inability to remain undistracted [DE 52-2, pgs. 19 & 31].
Bethesda Memorial's records do not indicate a problem in communicating with Mr. Liese. The pre-operation notes show that Mr. Liese indicated his understanding of the situation: "COW [Computer On Wheels] in room with pt and interpreter explained all pre-op question to pt-verbalized understand" [DE 233-7, p. 4]. He also signed a consent form indicating he understood the "nature of this operation" [DE 233-8]. The hospital's record show discharge instructions were given via VRI and that "instructions were given to patient and his wife—they state they understand through the signer" [DE 233-10, p. 8]. However, Mr. Liese asserted that the nurse who prepared the Surgery Record was not telling the truth but did not elaborate how she was not telling the truth [DE 233-15, p. 13].
Mr. Liese, accompanied by his wife, returned to Bethesda Memorial on November 1-2, 2011 because of a blood clot. Hospital records indicate VRI was used for approximately 190 minutes to communicate with him [DE 233-12]. He asserted that VRI did not provide effective communication because the "screen kept freezing and was often unclear and again due to my low vision, I was unable to use VRI effectively" [DE 68-4]. However, in his deposition Mr. Liese did not have a clear memory of ever visiting Bethesda Memorial for the blood clot [DE 233-15, pgs. 16-20]. Mrs. Liese, however, remembers the November 1-2, 2011 hospital admission and confirmed that VRI was not working on November 2, 2011 [DE 233-23, p. 7]. Mr. Liese's family helped him communicate with the hospital staff [DE 259-1]. With respect to this visit, Mr. Liese did not identify specific information he was unable to convey or understand.
Bethesda Memorial's records do not indicate a problem in communicating with Mr. Liese during this admission. They do, however, indicate that Mr. Liese requested an on-site interpreter [DE 233-16, DE 233-16; DE 233-19; DE 233-21], which was not granted.
Regarding Mr. Liese's current health condition, his June 7, 2011 hernia surgery was successful and he returned to normal activities [DE 233-15, p. 13]. However, he had another hernia surgery two years later but chose to go to another hospital because it offered an on-site interpreter [DE 233-15, p. 14]. Mr. Liese currently suffers from a number of age-related ailments (allergic rhinitis, chronic venous embolism and thrombosis, chronic airway obstruction, gout, macular degeneration, and chronic kidney disease ) [DE 233-1] but his primary physician believes they are generally stable and will not require treatment in the next four months (other than a visit for itchy, swollen feet) [DE 233-2].
3. Susan Liese
Susan Liese's claims arise from the times she accompanied her husband to the hospital. She is hearing impaired, having lost hearing in her left ear at age 11 and thereafter experiencing gradual loss of hearing in her right ear [DE 233-23, p. 3]. The parties agree that she is disabled (deaf) within the terms of the ADA and RA [DE 233, p. 4]. Mrs. Liese reads written text, writes and reads lips [DE 233-23, p. 4] and she uses an iPhone and videophone to communicate with friends and family [DE 233-15, p. 15 [DE 233-23, p. 4].
As her husband's "companion" she was entitled to enjoy "effective communication". Mrs. Liese also refers to a visit she made to Bethesda Memorial on January 5, 2011 [DE 258, p. 17; DE 259-1]. However, this visit was not plead in the Third Amended Complaint [DE 217 pgs. 33-39] and consequently has not been considered here.
Mrs. Liese confirms many of her husband's assertions and, thus, is a source of corroborative evidence for his claims. In terms of her own claims, however, Mrs. Liese has provided no detail regarding any communication problems she encountered. Nonetheless, for the purpose of this motion, the court will assume that Mrs. Liese's complaints mirror those of her husband.
Regarding Mrs. Liese's current health, she suffers from a number of age related ailments (hypertension, congestive heart failure, hypothyroidism, and pulmonary hypertension ) but they are generally stable and do not require treatment in the next four months [DE 259-12]. Mr. and Mrs. Liese rely on a Dr. Sohsten's evaluation of Plaintiff Sandra Sunderland to conclude that coronary disease could lead them to go to the hospital at any time [DE 258, p. 7].
4. John Virgadaula
Mr. Virgadaula's claims arise from an arthroscopic operation to his shoulder that took place at Bethesda Memorial on January 15, 2014. It was performed on a one-day out-patient basis. Mr. Virgadaula was approximately 68 at time of his surgery and the parties agree he is disabled (deaf) within the terms of the ADA and RA [DE 239, p. 4]. Although Mr. Virgadaula had worked for various newspapers for over 20 years as a layout printer, he indicated that he is "not that great reading English" [DE 239-15 Pgs. 3-7], but he can send text messages on a cell phone and write emails [DE 239-15 pgs. 4-5], and also reads lips [DE 239-16].
Prior to his surgery, Mr. Virgadaula had an anesthesia evaluation via "videophone and sign language interpreter" on January 7, 2014. He has stated that he understood the information that had been conveyed to him [DE 239-6, p. 3; DE 239-15, p. 8].
On the day of the surgery, Mr. Virgadaula travelled to Bethesda Memorial with his wife Debbie, who is also deaf. Mr. Virgadaula's claims are premised on his assertion that VRI was inadequate to ensure effective communication and that the hospital declined to provide an on-site interpreter. As a preliminary matter, Plaintiff's own expert acknowledged that Mr. Virgadaula's had the capacity to effectively use VRI "if used responsibly" [DE 52-2, p. 30]. The hospital's records reflect that VRI was used for 89.68 minutes [DE 239-19]. Mr. Virgadaula states that VRI "wasn't a comfortable way to communicate" [DE 239-15, p. 8]. He clarified this point by saying with regard to the hospital staff's use of VRI:
First of all, they moved the VRI to, like, the front of my bed, and the anesthesiologist was standing by my shoulder, so almost behind me. And still the nurse was struggling, trying to get the picture, trying to plug it in right, trying to bring it up and all this stuff [DE 239-15, p.8].
He also complained about technical problems with VRI, stating "Well, there was a lot of problems with [VRI]. It would go off and on. There was a fuzzy screen. They couldn't see me; I couldn't see them" [DE 239-15, p. 13]. Mr. Virgadaula raised his concerns about VRI with the hospital staff the day of his surgery [Id. at 10]. That being said, he has not cited to any information he was unable to convey or understand [DE 239-17, p. 3]. In response to a question about Mr. Virgadaula's pre-surgery mindset (in the context of using the VRI), his surgeon stated "I don't believe we would have proceeded with surgery if he wasn't comfortable doing it" [DE 239-14, p. 5]. Despite his frustration with his experience with VRI, he concluded that the nurse helping him cared about him and he "saw she was trying to help" [DE 239-15, p. 13].
Bethesda Memorial's records do not indicate a problem in communicating with Mr. Virgadaula. Upon arriving at the hospital Mr. Virgadaula signed a consent form for the procedure indicating, "I understand" [DE 239-7]. On the same day Mr. Virgadaula spoke with an anesthesiologist, who communicated via VRI, and the anesthesiologist attested that Mr. Virgadaula "understands the anesthetic plan and wishes to proceed" [DE 239-8]. The surgery was successful and the OR Case Record noted "PATIENT DEAF; PRE OP INTERVIEW DONE USING C.O.W [computer on wheels] APPARATUS WITH NO DIFFICULTY; PATIENT VERBALIZES UNDERSTANDING OF INSTRUCTIONS; ALL QUESTIONS WERE ANSWERED VIA INTERPRETER" [DE 239-9, p. 7]. Mr. Virgadaula asserted though that the nurse who prepared the OR Case Record was "not telling the truth" [DE 239-15, p. 10]. He did not elaborate upon what exactly the nurse was not telling the truth about. In addition, he signed discharge instructions indicating he understood them [DE 239-10].
Defendants assert the discharge instructions were given via VRI but this is not evident from the submitted exhibit. DE 239, p.9.
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Regarding Mr. Virgadaula's current health, he suffers from a number of ailments: hyperlipidemia, impotence, hypertensive heart disease, mitral valve disorders, aortic valve disorders, valve disorders, cardiomegaly, cataract, tricuspid, atherosclerosis of aorta, malaise/fatigue, and undiagnosed murmurs [DE-1]. However, as of June 29, 2014 his primary care physician concluded the patient had no apparent conditions requiring treatment in the next four months [DE 239-1, pgs. 6 & 14]. Mr. Virgadaula confirmed on September 8, 2014 that he had not returned to Bethesda Memorial or emergency room for any reason since his shoulder surgery [DE 239-15, p. 6]. As of November 9, 2015, Virgadaula's primary care physician concluded he was in a "stable" health condition and would not need to return for a follow-up for four months [DE 271-1, p. 6].
B. Procedural History
In their operative Third Amended Complaint, Plaintiffs assert that Bethesda failed to provide interpreting services adequate to ensure effective communication with them during each of their respective hospital stays, and that this lack of effective communication violated their rights under Title III of the Americans with Disability Act of 1990 ("ADA"), 42 U.S.C. § 12181 et seq. , and section 504 of the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794, by depriving them of an equal opportunity to participate in and enjoy the benefits of the hospital's services. Plaintiffs seek injunctive relief reforming Bethesda's policies and procedures, as well as compensatory damages, attorneys' fees and costs. In its current motions for summary judgment, Bethesda contends that Plaintiffs are unable to demonstrate entitlement to either form of relief.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a). An issue is "material" if, under the applicable substantive law, it might affect the outcome of the case. An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. U.S. ex rel. Urquilla – Diaz v. Kaplan Univ. , 780 F.3d 1039, 1050 (11th Cir.2015) (quoting Harrison v. Culliver, 746 F.3d 1288, 1289 (11th Cir.2014) ).
If the movant meets its initial burden under Rule 56 (c), the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56 (e). "[T]o survive summary judgment the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla – Diaz , 780 F.3d at 1050 (citing Brooks v. Cty. Com'n of Jefferson Cty., Ala. , 446 F.3d 1160, 1162 (11th Cir.2006) ).
In ruling on a motion for summary judgment, the Court must construe the facts alleged in the light most favorable to the nonmoving party and resolve all reasonable doubts about the facts in favor of the non-movant. Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 337 (11th Cir.2012). However, a court need not credit affidavit evidence which directly contradicts with earlier, sworn testimony of a party. That is, "[w]hen a party has given clear answers to unambiguous question which negates the existence of any genuine issue of material fact, that party cannot thereafter create such an in issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc. , 736 F.2d 656, 657 (11th Cir.1984). Thus, a district court may strike as sham an affidavit which contradicts testimony deposition when the party merely contradicts prior testimony without giving any valid explanation. Id. at 658. In order to be stricken as a sham, however, an affidavit must be "inherently inconsistent."
III. DISCUSSION
A. GOVERNING LAW: ELEMENTS OF CLAIM
Title III of the ADA applies to privately-operated public accommodations, including hospitals, and prohibits discrimination "on the basis of disability in the full and equal employment of goods, services, facilities, privilege, advantages or accommodations." 42 U.S.C. § 12182 (a) ; 42 U.S.C. § 12181 (7) (f) (defining hospitals as public accommodations). Such discrimination includes:
a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden ...
Id. § 12182(b)(2)(A)(iii). A Department of Justice regulation implementing Title III further provides that "[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities." 28 C.F.R. § 36.303 (c). A companion is defined as "a family member, friend, or associate of an individual seeking access to, or participating in, the goods services, facilities, privileges, advantages, or accommodations of a public accommodation, who along with such individual, is an appropriate person with whom the public accommodation should communicate." 28 C.F.R. § 36.303 (c)(i).
Although Title III does not allow a private party to seek damages, it does provide for injunctive relief. 42 U.S.C. § 12188 (b) (2) ; Dudley v. Hannaford Bros. Co. , 333 F.3d 299, 304 (1st Cir.2003) : Pickern v. Holiday Quality Foods, Inc. , 293 F.3d 1133, 1136 (9th Cir.2002). To establish standing for such relief, a plaintiff must show that he or she will suffer an injury in fact which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Past exposure to illegal conduct is not, in itself, sufficient to show that real and immediate threat of injury necessary to make out a case or controversy. City of Los Angeles v. Lyons , 461 U.S. 95, 103, 105–106, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Past wrongs can be considered, however, as evidence of an actual threat of repeated injury. Henschen v. City of Houston, Tex. , 959 F.2d 584 588 (5th Cir.1992), citing O'Shea v. Littleton , 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
Section 504 of the Rehabilitation Act, in turn, provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reasons of her or his disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance..." 21 U.S.C. § 794 (a).
The ADA and Rehabilitation Act claims are governed by the same legal standards. Cash v. Smith , 231 F.3d 1301, 1305 (11th Cir.2000). To prevail under either Act, the plaintiffs must prove (1) they are qualified individuals with a disability (2) who were excluded from participation in or denied the benefits of Bethesda's hospital services programs or activities, or otherwise discriminated against (3) on account of their disability. Shotz v. Cates , 256 F.3d 1077, 1079 (11th Cir.2001).
To recover compensatory damages under the Rehabilitation Act, a plaintiff must further show that the exclusion or denial was the result of intentional discrimination. Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 344 (11th Cir.2012) ; Delano – Pyle v. Victoria Cty., Tex. , 302 F.3d 567, 574 (5th Cir.2002). In this circuit, a "deliberate indifference" standard is applied to determine whether a hospital's failure to provide an appropriate auxiliary aid to a hearing-impaired patient was the result of intentional discrimination in violation of the Act; that is, discriminatory animus is not a required element of claim. Liese , at 347–48.
Further, for an organization, such as a hospital, to be liable for deliberate indifference to violation of a patient's rights under the Rehabilitation Act, a plaintiff must show deliberate indifference on the part of "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [organization's] behalf [and who] has actual knowledge of discrimination in the [organization's] programs and fails to adequately respond. Liese , at 349 (emphasis in original), quoting Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998).
In this case, plaintiffs urge that every employee of Bethesda staff who knew of plaintiff's impairment and had the authority to ask for a live, on-site interpreter is an "official" within the meaning of Liese . However, such a broad approach in defining the contours of an "official" for attribution purposes under the Rehabilitation Act was considered and explicitly rejected by the Eleventh Circuit in Liese as one which "essentially eviscerates the requirement that there be a decision by an official." Id. at 350. In Liese , the Court noted that "the purpose of the official' requirement is to ensure that an entity is only liable for the deliberate indifference of someone whose actions can fairly be said to represent the actions of the organization." Id. at 340, citing Gebser , 524 U.S. at 2909, 118 S.Ct. 1989, and that "the question of how far up the chain of command one must look to find an ‘official’ is necessarily a fact-intensive inquiry, since an official s role may vary from organization to organization." Id. , citing Doe v. Sch. Bd. of Broward County, FL. , 604 F.3d 1248, 1255 (11th Cir.2010).
Under current, binding Eleventh Circuit precedent, an "official" in this context is defined as "someone who enjoys substantial supervisory authority within an organization's chain of command so that, when dealing with the complainant, the official had complete discretion at a ‘key decision point’ in the administrative process." Liese , at 350, citing Doe , 604 F.3d at 1256–57. "The key decision point' language reflects the practical reality that, while some decisions are technically subject to review by a higher authority, such a review is not part of the entity's ordinary decision making process." Id.
Reviewing the summary judgment record before it in Liese , the Eleventh Circuit ultimately concluded that there was a least a fact question as to whether the doctors at issue had complete discretion to decide whether to provide a patient with an interpretative aid. Accordingly, whether the doctors could be characterized as "officials" was an issue properly reserved for the jury. The Court recognized evidence suggesting any hospital staff member had authority to ask for an interpreter, or to retrieve VRI equipment from a storage closet, but focused only on the doctors as potential "officials" for attribution purposes because the evidence "suggest[ed] strongly that the doctors had supervisory authority" over the decision to order an interpreter, with ability to overrule a nurse's decision not to provide auxiliary aid.
B. Application
1. Discrimination on the Basis of Disability
It is undisputed that all Plaintiffs in this case are qualified individuals with a disability. Mrs. Liese's claims differ slightly in that her claims are based on her status as a "companion" to her husband. See e.g., Martin v. Halifax Healthcare Systems, Inc. , 621 Fed.Appx. 594 (11th Cir.2015) (deaf mother accompanying daughter). She, however, clearly meets the definition of companion in 28 C.F.R. § 36.303 (c)(i) and, consequently, her claims are treated the same as the Plaintiffs who received treatment.
The threshold question presented on summary judgment is, therefore, whether there is a disputed issue of fact on question of whether Bethesda violated federal law by excluding Plaintiffs from, or denied them the benefits of, the hospital's services or programs by failing to provide live, on-site ASL interpreter services after plaintiffs expressed dissatisfaction with the efficacy of VRI services and a preference for live, on-site interpreters. If this is so, the inquiry appropriately turns to whether Plaintiffs are able to demonstrate a genuine issue of material fact pertaining to their entitlement to injunctive relief under the ADA or compensatory damages under the Rehabilitation Act.
On the threshold liability issue, Bethesda does not contest that the ADA and Rehabilitation Act require that it provide deaf and hearing-impaired patients with effective communication. It argues, however, that the auxiliary aids and service necessary to ensure effective communication are context specific, 28 C.F.R. § 36.303(c)(1)(ii) (type of aid or service will vary with method of communication used by patient, nature length and complexity of the communication involved, and context in which the communication is taking place), and in this case there is no evidence that Bethesda failed to provide effective communication to any one of the four plaintiffs. Further, it urges the Court to infer the existence of effective communications by virtue of lack of evidence that any plaintiff was misdiagnosed, given the wrong medication, failed to understand or follow discharge instructions, or was otherwise harmed by a communication lapse with treating medical personnel.
The Court disagrees and rejects the proposition that lack of evidence of "adverse results" defeats any issue respecting the efficacy of communication. The statute and implementing regulations do not suggest an "adverse action" element as necessary to state a cause of action, nor is there any statutory authority defining an "ineffective" communication as one which results in adverse medical consequence. To be "ineffective," the Court finds it sufficient that the patient experiences a real hindrance, because of his or her disability, which affects her ability to exchange material medical information with her health care providers.
Applying this standard, the Court finds that a genuine issue of fact exists as to whether Plaintiffs James Liese, Susan Liese and John Virgadaula were deprived of their right to "effective communication". More specifically questions of fact exists as to whether: (1) VRI consistently functioned and was suitable for each individual plaintiff; and if not (2) whether the intermittent functioning of VRI, combined with each individual plaintiff's unique communication abilities, such as reading lips or exchanging written notes, was sufficient to provide timely and effective communication, in light of the seriousness of the medical situation; and, if not, (3) whether the ineffective communication could have been cured by Bethesda retaining the services of an on-site interpreter. No genuine issue of fact exists as to the suitability of VRI generally but rather its use in specific situations because, as plaintiffs' expert opined "VRI is a wonderful tool when used wisely and responsibly" [DE 52-2]. With regard to Ms. Feltzin, the record only contains a few conclusory statements made by her regarding her experience while in the hospital. The Court need not reach the issue of whether those statements are sufficient to show a genuine issue of fact remains in dispute because of other deficiencies discussed below.
Each plaintiff contends that VRI computer technology was used in effort to provide ASL interpreting service at some point during their admission, and each complains it was not functioning properly, resulting in blurry images and "freezing up;" each also complains that her or a family member's expression of dissatisfaction with the level of communication provided through VRI computer technology, and corresponding requests for alternative use of live, on-site ASL interpreters to address the communication failures were either ignored or denied by hospital staff. Consequently, each alleges they were unable to understand what was wrong with them or what was happening to them during their hospital stays, impeding their ability to meaningfully participate in the management of their own health care.
The Court recognizes that the Defendants are not required to provide ASL on-site interpreters as a matter of course in order to achieve "effective communication" with hearing-impaired patients, i.e., that there is no per se rule that qualified live, on-site ASL interpreters are necessary to comply with federal law. The Court also recognizes that while the governing regulations provide a public accommodation should consult with individuals with disability whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, the ultimate decision as to what measures to take rests with the public accommodation, provided the resulting communication is effective. 28 C.F.R. § 36.303(c)(1)(ii). See also Feldman v. Pro Football, Inc. , 419 Fed.Appx. 381, 392 (4th Cir.2011). The auxiliary aid requirement is a flexible one, and "full and equal enjoyment" is does not necessarily mean "mean that an individual with a disability must achieve an identical result or level of achievement as persons without a disability." Id. ; 45 C.F.R. § 84.52(d).
In this case, however, there is evidence that Bethesda's default reliance on VRI as an auxiliary aid resulted in patient comprehension failures—known to hospital staff—and corresponding impediments to each patient's ability to meaningfully understand and participate in his or her own course of medical treatment.
Thus, assuming the existence of disputed issues of fact on the central liability question of whether Bethesda failed to provide auxiliary aids necessary to achieve "effective communication" by its hearing-impaired patients, the inquiry turns to the issue of whether the plaintiffs can demonstrate entitlement to either form of relief demanded under Title III of the ADA or Section 504 of the Rehabilitation Act.
2. Entitlement to Relief under the ADA or Rehabilitation Act
a. Injunctive Relief
A private party may seek only injunctive relief under Title III of the ADA, 42 U.S.C. § § 12188(A)(1)(2012), while a plaintiff may seek injunctive relief and compensatory damages under Section 504 of the Rehabilitation Act upon showing of intentional discrimination. To show standing to seek injunctive relief, plaintiffs must show the existence of a "real and immediate" threat of future hospitalization at a Bethesda facility; in the context of the instant summary judgment proceedings, they must show the existence of disputed issues of fact bearing on this central question.
Upon careful review of the record, the Court finds this burden has not been met. There is no evidence of a "real and immediate" threat that any one of the plaintiffs will return to Defendant's hospitals in the near future, nor is there any reliable evidence that VRI technology will malfunction in the future and that plaintiffs will not be provided with an alternative, adequate auxiliary aid in such an instance.
Plaintiffs seemingly advance the position that an elderly person suffering from a chronic, progressive medical condition necessarily demonstrates a "real and immediate" threat of future hospitalization which is sufficient to at least create an issue of fact on the question of standing to seek injunctive relief. In the absence of corroborating expert medical evidence regarding the likelihood an imminent future hospital admission, the Court disagrees. McCullum v. Orlando Regional Healthcare System, Inc. , 768 F.3d 1135 (11th Cir.2014) (no standing to seek injunctive relief where plaintiff failed present evidence to support contention that allegedly chronic medical condition—ulcerative colitis —actually created a real and immediate threat that he would return to the defendants' facilities).
In addition to lack of evidence on the likelihood of an imminent future admission, plaintiffs do not show a likelihood of VRI malfunctioning at a Bethesda facility in the future, nor do they show that an interruption in VRI services, should it occur, would prevent effective communication in the future. Defendants have demonstrated they are willing to provide auxiliary aids, including in person, on-site ASL interpreters, where VRI malfunctions. Although the Court is not addressing the claims of co-plaintiff Ms. Donofrio in this current order, her case shows that the hospital will provide continuous on-site ASL interpreting services when the VRI machine malfunctions. Additionally, Defendants show that their existing policy calls for use of live, on-site interpreters if VRI is not adequate to ensure effective communication.
Plaintiffs have not raised a genuine dispute of fact regarding the likelihood of future injury, the Court concludes they lack standing to seek injunctive relief, and shall accordingly enter summary judgment on all claims asserted under Title III of the ADA, as well as the claims asserted under Section 504 of the Rehabilitation Act insofar as they seek injunctive relief. See McCullum v. Orlando Regional Healthcare System, Inc. , 768 F.3d 1135, 1145–46 (11th Cir.2014).
b. Compensatory Damages
Bethesda further asserts that summary judgment is warranted under the Rehabilitation Act claims because no plaintiff is able to demonstrate the existence of disputed issues of fact on the question of whether the hospital intentionally discriminated against her within the meaning of the Act. Liese , 701 F.3d at 343–44. As discussed above, in order to present a jury question on this issue, a plaintiff must at least raise a genuine issue of material fact on the question of whether an "official" of the hospital, whose actions may properly be attributed to the organization, engaged in "intentional discrimination" her, i.e. the plaintiff must adduce some evidence suggesting that an "official" of the hospital was "deliberately indifferent" to a violation of her rights under the Act. Liese , 701 F.3d at 345.
Deliberate indifference occurs when an individual knows that a violation is substantially likely and fails to act on that likelihood. Id . at 344 ; Doe v. Sch. Bd. of Broward Cnty., Florida , 604 F.3d 1248, 1259 (11th Cir.2010). This involves an element of "deliberate choice," which is not met with evidence of mere negligence. Liese , 701 F.3d at 344. More specifically, a plaintiff must show the existence of disputed issues of fact on central question of whether an "official" of the hospital made a decision not to supply a live on-site interpreter, knowing that there was a substantial likelihood that the patient would not be able to communicate effectively without this auxiliary aid. McCullum , 768 F.3d at 1147–48.
Plaintiffs contend that any hospital staff clinician who interacts with a patient is an "official" for purposes of this standard, contending that the Eleventh Circuit has somehow "retreated" from its holding in Liese requiring that deliberate indifference must be attributed to "an official who at a minimum has authority to address the alleged discretion and to institute corrective measures" on the organization's behalf." In this regard, plaintiffs point to language in the Eleventh Circuit's more recent opinions in McCullum and Martin v. Halifax Healthcare Systems, Inc. , 621 Fed.Appx. 594 (11th Cir.2015), where reference is made to the conduct of "hospital staff" in conjunction with the court's assessment of whether the evidence is susceptible to a finding of "deliberate indifference" on part of the defendant hospital. A close reading of McCullum , however, shows there is no support for the radical departure from the holding in Liese here advanced by plaintiffs.
Indeed, in McCullum , the Eleventh Circuit explicitly cites with approval to Liese 's requirement for evidence of decision-making by an "official" as a predicate for triggering organizational liability under the Rehabilitation Act. After describing the conduct of hospital "staff" at issue in that case, and finding no genuine issue of material fact on question of whether any staff person engaged in conduct which deprived plaintiffs of their right to equal treatment and "effective communication," the Court noted:
To prevail on [plaintiff's] claims seeking damage from the hospitals, the patients must also show deliberate indifference on the part of "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the organization's behalf, and who has actual knowledge of discrimination in the organization's programs and fails to adequately respond." See Liese , 701 F.3d at 349 (alterations omitted); see also Gebser v. Lago Vista Independ. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998). Because we conclude that [plaintiff] has not presented sufficient evidence of deliberate indifference by a [hospital] staff member, we need not address whether the nurses and doctors treating him qualified as "officials" within the meaning of Liese and Gebser .
McCullum , at 1149 n. 9.
In contrast, in this case the Court finds the existence of a disputed fact issue on the predicate liability question of whether Bethesda bedside nursing staff exhibited deliberate indifference to the needs of the plaintiffs by failing to obtain live, on-site ASL interpreters at plaintiffs' request in the face of complaints about the efficacy of VRI technology as an auxiliary aid. Therefore, unlike the situation in McCullum or Martin , the Court in this case does need to address the issue of whether there is evidence that adverse decision-making regarding auxiliary aids can be attributed to a hospital "official" within the meaning of Liese and Gebser . Having addressed this inquiry, the Court concludes there is no evidence from which a reasonable jury could find that the Bethesda nursing staff who allegedly deprived plaintiffs of their right to effective communication qualified as "officials" in the Liese sense.
Plaintiffs contend that evidence showing any hospital employee who is a clinician taking care of a patient has the authority to ask for a live interpreter [DE 241, 67-8, 235-18] equates to a showing that any person who is a clinician taking care of a patient is an "official" of the hospital possessing sufficient discretionary authority to trigger organizational liability; thus, in this case, plaintiffs contend that evidence of the bedside nurses' failure to meet the plaintiffs' demands for on-site ASL interpreters is sufficient to raise a jury question on whether a hospital "official" intentionally discriminated against them.
The ability to request the provision of a certain auxiliary service or aid is not the equivalent of the discretionary ability to order such aid without pre-approval from another level of authority in the hospital administration's chain of command. Here, the undisputed evidence shows that only the hospital administrator on call and risk manager are persons at Bethesda vested with discretion to conclusively grant or deny a patient or staff member's request for on-site, live ASL interpreters as an auxiliary aide for a hearing-impaired patients or family members of such a patient.
There is no evidence that Ritson or any hospital administrator on call was ever contacted with a complaint about the functionality or efficacy of VRI services for any of the plaintiffs at issue in this case, nor is there any evidence, in general, that either category of hospital "official" ever refused a request for live, on-site ASL interpreting service when requested by a nursing supervisor, patient or hospital staff member. Indeed, the nursing supervisor, to whom all requests for VRI services are referred in ordinary course as a matter of standard operating hospital policy and procedure, testified she was only aware of two instances where a patient or staff complained about the functioning of VRI, and in both instances she requested, and obtained authorization for, provision of an on-site interpreter.
Because there is no evidence that would allow a reasonable jury to conclude that the floor nurses or other staff members to whom requests for on-site interpreters were directed in the four cases at issue had "complete discretion" at a "key decision point" in the administrative process to provide such assistance, plaintiffs fail to demonstrate a threshold, disputed issue of material fact on the central liability question of whether a relevant hospital "official" acted in deliberate indifference to their federally protected rights under the ADA or the Rehabilitation Act. Accordingly, Defendants are entitled to entry of final summary judgment in their favor on all Rehabilitation Act claims.
IV. CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. The defendants' motion for summary judgment is GRANTED on all claims asserted under the ADA and Rehabilitation Act as to plaintiffs Julia Feltzin, James Liese, Susan Liese, and John Virgadaula.
2. Pursuant to Rule 58, final summary judgment in favor of defendants shall be entered accordingly by separate order of the court.
3. All pending motions are DENIED as MOOT as to the above-named plaintiffs.
4. The trial and all corresponding pretrial deadlines are CANCELLED as pertaining to the above-named plaintiffs.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 3rdday of February, 2016.