Loeffler v. Staten Island University Hosp.

Decision Date06 October 2009
Docket NumberDocket No. 07-1404-cv.
Citation582 F.3d 268
PartiesJosephine LOEFFLER, as Administratrix of the Estate of Robert A. Loeffler and individually, Robert C. Loeffler, and Kristy Loeffler, Plaintiffs-Appellants, Joanne Amore and Ann Rappoccio, Plaintiffs v. STATEN ISLAND UNIVERSITY HOSPITAL, Defendant-Appellee.<SMALL><SUP>*</SUP></SMALL>
CourtU.S. Court of Appeals — Second Circuit

Alan J. Rich, Brooklyn, NY, for Plaintiffs-Appellants.

Roy W. Breitenbach, Garfunkel, Wild & Travis, P.C., Great Neck, NY, for Defendant-Appellee.

Alan Jenkins, New York, NY, for amicus curiae The Opportunity Agenda.

Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and SAND, District Judge.**

Chief Judge JACOBS dissents from the majority of the panel as to Part II of this opinion; Judge WESLEY sets forth the decision of the court as to Part II in a separate opinion.

DENNIS JACOBS, Chief Judge:

Josephine Loeffler, ("Josephine") acting individually and as administratrix for the estate of her deceased husband Robert A. Loeffler ("Robert"), and their two children Robert C. Loeffler ("Bobby") and Kristy Loeffler, ("Kristy"), (collectively "the Loefflers") appeal an order entered in the United States District Court for the Eastern District of New York (Johnson, J.) granting summary judgment to Staten Island University Hospital ("the Hospital").

The Loefflers allege that during Robert's heart surgery on October 27, 1995, and his subsequent stroke and convalescence, the Hospital failed to provide a sign language interpreter to Robert and his wife, who are both deaf, in violation of numerous federal, state, and local regulations, so that their two minor children— Kristy and Bobby (of normal hearing)— were forced to interpret.

The Hospital does not contest that Robert and Josephine were deaf, that it was required by law to provide an interpreter, and that it failed to do so. The district court granted summary judgment dismissing the parents' claims on the ground that, under Bartlett v. N.Y. State Bd. of Law Exam'rs, 156 F.3d 321, 331 (2d Cir.1998), vacated on other grounds and remanded, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999), the Hospital cannot be held liable for monetary damages because its failure was not a result of "deliberate indifference." The district court dismissed the claims of the Loeffler children for lack of statutory standing. Loeffler v. Staten Island Univ. Hosp., No. 95 CV 4549(SJ), 2007 WL 805802, at *4-10 (E.D.N.Y. Feb.27, 2007).

For the reasons that follow, we conclude that Robert and Josephine have raised a genuine issue of material fact as to the Hospital's deliberate indifference, and we vacate the dismissal of all their claims. We also vacate the dismissal of Kristy's and Bobby's federal claims (for the reasons set forth in Judge Wesley's concurring opinion); and we vacate the dismissal of Kristy's and Bobby's claims under the New York City Human Rights Law, in light of the New York City Local Civil Rights Restoration Act of 2005.

BACKGROUND1

Robert previously had heart surgery at the Hospital in 1991. At that time, he requested an American Sign Language ("ASL") interpreter; but though the Hospital's records reflected the need for one, none was provided. Kristy (age 12 at the time) and Bobby (age 9) interpreted for their father.

The present case concerns Robert's surgery at the Hospital in the fall of 1995. Robert was scheduled for a right carotid endarterectomy on October 27, 1995. In the days and weeks leading up to the surgery, the Loefflers made numerous attempts to secure an interpreter from the Hospital. Bobby (age 13 at the time) claims that during pre-admission testing (weeks prior to the surgery), he made a request to the operating surgeon, Dr. Nedunchezian Sithian, who "just kind of laughed it off. ..." Numerous other requests are alleged to have been made: by Bobby ten days before the surgery, by Bobby or Kristy (age 17 at this time) four days in advance, and by Josephine the day before. (She says the Hospital confirmed the request). The Hospital maintains that they have no records showing any such requests.

At the relevant time, the Hospital's policy was to provide sign language interpreters:

When a physician, nurse or other professional staff member determines an interpreter is needed, and when in the opinion of the patient, effective communication cannot be established without an interpreter, the following procedure applies ... [during business hours t]he Speech and Hearing Center staff will call the interpreters on call to arrange to provide interpretation. ... In the event that we cannot reach our interpreters on call, we will contact the New York Society for the Deaf. Where the need for an interpreter is known in advance ... arrangements are to be made in advance with an interpreter. (emphasis added)

"[P]ursuant to the policy, hospital staff or patients were to report requests for interpreting services to the Patient Representative Department" ("PRD"). Appellee's Br. at 9. The PRD was run by its Director, Patricia Ferrara, and two "patient representatives," one of whom was Antoinette Henderson. Requests made after hours were to go to the Assistant Director of Nursing ("ADN"), who should determine whether it is necessary to contact an interpreter "on call" or "the New York Society for the Deaf."

A. Events of October 27, 1995

On the morning of the surgery, Friday, October 27, 1995, Robert and Bobby went to the PRD to request an interpreter, and were told to go upstairs to the "pre-op room" while an interpreter was sought. At the pre-op room, Bobby asserts that he again requested an interpreter from Dr. Sithian. Surgery began at noon. During the procedure, various family members visited the PRD at least four times to request an interpreter. The Hospital contends that no request for an interpreter for that hospital visit was made until 2pm or 3pm. Appellee's Br. at 9-10.

Josephine alleges that she and her sister asked Antoinette Henderson of the PRD to have an interpreter present when Robert got to the recovery room, and for a "TTY" machine, which allows the deaf to communicate (by phone or in person) with people with normal hearing, through a relay service. Henderson does not remember the Loefflers ever explicitly asking for a TTY, but recalls advising that Robert could use one if he was in a private room.

After Josephine and her sister left the PRD, Henderson began looking for an interpreter, but the Hospital's Speech and Hearing Department ("SHD") asked whether the Loefflers needed an interpreter who signed ASL (the overwhelmingly predominant sign language used in the United States) or English Sign Language, and Henderson, who did not know, unsuccessfully tried to reach family members to find out.

Shortly before 4pm, Josephine (with her mother) returned to the PRD, and answered Henderson's inquiry as to which kind of interpreter was required. Henderson then got back in touch with SHD, and obtained four telephone numbers for ASL interpreters. Two numbers were out of service, and two were unanswered. (The Loefflers claim that the list was outdated.) Henderson told Josephine and her mother that no interpreter would be available that night, and suggested that they check the next morning if one was still needed. Henderson and the Loefflers disagree as to whether any objection was registered.

After the surgery, Dr. Sithian brought Bobby into the Recovery Room to interpret for his father, and told Bobby that the surgery had gone well. Bobby again asked about an interpreter, explaining to Dr. Sithian that he did not "feel comfortable doing this and ... [did not] understand some of the terms." Dr. Sithian assured Bobby that he was "doing just fine." According to Bobby, Dr. Sithian "patted me on the back, and laughed it off like usual." Dr. Sithian left Bobby at his father's bedside in the Recovery Room.

Soon after the surgery, Robert suffered a stroke. He grabbed his ankle and writhed in pain. Bobby alerted a nearby nurse, who responded with indifference and opined that "that was how deaf people communicate." Bobby disagreed, and she responded, "what do you know, you're a kid." Bobby raised a disturbance for two to five minutes until Dr. Sithian came back.

After removing Bobby from Robert's bedside and caring for Robert, Dr. Sithian told Josephine (through Bobby) that Robert had suffered a stroke and needed another operation. According to Bobby, interpreting was "amazingly overwhelming" and he had trouble because he did not "know what a stroke was."

Before Henderson left for the weekend, she advised a "charge nurse" that, if Robert was not discharged the following day (as expected), the charge nurse should call an ASL interpreter. Henderson gave the nurse the two telephone numbers that had not been disconnected. Henderson was unaware of Robert's stroke; the charge nurse never tried calling any interpreter that afternoon or evening.

That night, Kristy stayed overnight in the Critical Care Unit ("CCU"), in order to translate for her parents. Kristy thus took over for Bobby, who testified that he was traumatized and apparently felt responsible for failing to help his father.

B. Remainder of Hospital Stay

The Loefflers maintain that, despite their constant requests in the following days, the Hospital never obtained an interpreter. Loeffler, 2007 WL 805802, at *2. According to Bobby, Hospital personnel would put off questions by saying "we're working on it or . . . I'm not the person you need to talk to." Josephine also claims she requested a TTY in order to avoid making extra car trips to the Hospital, but the request was denied. From October 27 to November 7, 1995, the family continued to rely on Kristy and Bobby, who stayed out of school to remain on duty as translators. Id. The Loefflers claim that the Hospital gave Kristy a pager so she could be "on call." Both Bobby and Kristy claim to have suffered depression as a result of their father's stroke, and...

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