701 F.3d 334 (11th Cir. 2012), 10-15968, Liese v. Indian River County Hosp. Dist.

Docket Nº:10-15968.
Citation:701 F.3d 334
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Susan LIESE, James Liese, Plaintiffs-Appellants, v. INDIAN RIVER COUNTY HOSPITAL DISTRICT, Indian River Memorial Hospital, Inc., d.b.a. Indian River Medical Center, Defendants-Appellees.
Attorney:Matthew W. Dietz, Law Office of Matthew Dietz, Miami, FL, for Plaintiffs-Appellants. Susan N. Eisenberg, Jennifer Taylor Williams, Akerman Senterfitt, LLP, Miami, FL, Lewis W. Murphy, Jr., Casey Walker, Murphy & Walker, PL, Vero Beach, FL, Brian Russell, Mancuso & Dias, PA, Palm Beach Gardens, FL...
Judge Panel:Before DUBINA, Chief Judge, and MARCUS and FAY, Circuit Judges.
Case Date:November 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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701 F.3d 334 (11th Cir. 2012)

Susan LIESE, James Liese, Plaintiffs-Appellants,

v.

INDIAN RIVER COUNTY HOSPITAL DISTRICT, Indian River Memorial Hospital, Inc., d.b.a. Indian River Medical Center, Defendants-Appellees.

No. 10-15968.

United States Court of Appeals, Eleventh Circuit.

November 13, 2012

Page 335

[Copyrighted Material Omitted]

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Matthew W. Dietz, Law Office of Matthew Dietz, Miami, FL, for Plaintiffs-Appellants.

Susan N. Eisenberg, Jennifer Taylor Williams, Akerman Senterfitt, LLP, Miami, FL, Lewis W. Murphy, Jr., Casey Walker, Murphy & Walker, PL, Vero Beach, FL, Brian Russell, Mancuso & Dias, PA, Palm Beach Gardens, FL, for Defendants-Appellees.

Elliot Burt Kula, Daniel M. Samson, Kula & Samson, LLP, Aventura, FL, for Florida Hospital Association, Amicus Curiae.

Marc Charmatz, Silver Springs, MD, for National Association of the Deaf, National Disability Rights Network, Interested Parties— Amici Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and MARCUS and FAY, Circuit Judges.

MARCUS, Circuit Judge:

In this appeal, Susan and James Liese, the plaintiffs, challenge the district court's order granting summary judgment in favor of the defendant, Indian River Memorial Hospital, Inc. (" IRMH" or the " Hospital" ). The Lieses, who both suffer from severe hearing impairment, brought this suit against IRMH under § 504 of the Rehabilitation Act of 1973 (the " RA" or " Rehabilitation Act" ), 29 U.S.C. § 794, and Florida state law alleging a failure to communicate effectively when Susan Liese sought treatment at the Hospital's emergency room in November 2007. The Lieses say that the failure of the Hospital and its medical personnel to respond to their repeated requests for a sign-language interpreter states a valid claim for compensatory damages under the Rehabilitation Act, and a basis for recovery by Susan Liese under Florida law because of the Hospital's negligent infliction of emotional distress.

This appeal raises two central legal questions: whether the defendant's " deliberate indifference," if proven, is sufficient to establish intentional discrimination under § 504 of the RA; and whether the actions of medical personnel, including doctors and nurses employed by IRMH and involved in treating the plaintiffs, can be attributed to the Hospital.

After thorough review and taking the facts in a light most favorable to the non-moving parties, we answer the first question in the affirmative. As for the second question, we hold that the actions of the Hospital's doctors may be attributed to the Hospital for purposes of establishing liability

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under the Rehabilitation Act. The Lieses have alleged sufficient facts to withstand summary judgment on their claim for compensatory damages. Moreover, the record evidence, when taken in a light most favorable to the Lieses, would allow a reasonable jury to find by a preponderance of the evidence that IRMH doctors, who were clothed with complete discretion in deciding whether to provide necessary communicative aids to Susan Liese, were deliberately indifferent to her rights under the Rehabilitation Act. Accordingly, we reverse the grant of summary judgment to the Hospital on the Lieses' Rehabilitation Act claim and remand for further proceedings consistent with this opinion. However, the district court properly entered summary judgment for the Hospital on Susan Liese's state law claim for negligent infliction of emotional distress.

I.

Because we are reviewing the district court's grant of summary judgment to the defendant, we view the facts and draw all reasonable inferences in a light most favorable to the plaintiffs. See Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1255 (11th Cir.2011).

A.

The essential facts, taken in that light, are these: IRMH leases and operates a hospital in Vero Beach, Florida, that receives federal financial assistance. IRMH maintains a policy entitled " Communication Barriers" that describes itself as " a plan for effectively communicating in the language needed by the patient as well as assistance for the hearing impaired." The Hospital's policy includes several provisions relevant to this case. Three different mechanisms for communicating with individuals with communication disabilities are included within the plan and are found under the heading " Interpreter Availability" : interpreter lists, an AT& T Language Line, and a video-interpreter service called " My Accessible Real-Time Trusted Interpreter" (" MARTTI" ). The interpreter lists section observes that " Interpreter Lists (for foreign languages and sign language) are available on the Intranet." It also provides that " clinical interpreters may be used when clinical interpretations are necessary," while " non-clinical interpreters are used only for demographic information, billing information, etc." The " AT& T Language Line" is an audio-based means of interpretation for speakers of foreign languages that is available at all times by calling the Hospital operator and requesting assistance. Finally, MARTTI— a videoconferencing system that provides interpreters for speakers of foreign languages and hearing-impaired individuals who need to use sign language— is also available at any time and is kept in a storage room in the emergency room of the Hospital. Significantly, the policy does not give any guidance or recommendations as to when Hospital staff should use these communicative aids. Rather, medical personnel have complete discretion in this matter.

As counsel for IRMH conceded at oral argument, the Hospital's medical staff— including doctors and nurses— had the power to order that any of these communication mechanisms be provided to a hearing-impaired patient. One nurse testified that she had used MARTTI with a patient after a psychiatrist had directly ordered the use of MARTTI. Annette Barton-Riley, who served as director of risk management and as privacy and compliance officer at the Hospital between 2002 and 2008, testified that a patient would generally request an interpreter through his " care provider," a term that Barton-Riley defined as " a nurse." She added that, if a

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nurse refused to provide an interpreter, a patient could ask for a supervising nurse to review that decision. Nevertheless, she stressed that a nurse had the authority to order an interpreter for a patient and that it was " up to the staff to assess what the patient's needs are and make a determination as to what would meet those needs." Although the " Communication Barriers" policy itself says that accessing MARTTI requires calling security to arrange a delivery of the machine, two IRMH nurses said in their depositions that they could also go to the emergency room and retrieve the equipment themselves.

In an earlier lawsuit against the Hospital in 2005, Susan Fisher, a hearing-impaired individual, sued IRMH alleging that IRMH had failed to provide effective communication to deaf individuals. Fisher and IRMH eventually settled the claim. The agreement provided for a monetary recovery by Fisher, training by IRMH " on treatment of the hearing impaired," and the purchase of videoconferencing equipment by IRMH within six months of the settlement. The agreement also required IRMH to inform hearing-impaired patients of available services and maintain a list of qualified interpreters in the area.

In March 2007, IRMH's education department conducted a training session on the use of the MARTTI machine, which was attended by more than eighty Hospital employees. A nurse who attended this training recalled it lasting approximately ten minutes and that it gave only instructions on how to get MARTTI and a demonstration on how to use the machine. The nurses deposed in this case who treated Susan Liese expressed varying levels of familiarity with IRMH's " Communication Barriers" policy.1 Two nurses who were specifically questioned about communicating with the hearing impaired offered various means of communication: speaking louder; lipreading; the use of written messages or charts; and the use of sign language, if necessary, through an interpreter.

B.

It is against this backdrop that the plaintiffs entered the Hospital's emergency room in November 2007. Susan Liese (" Liese" ) is sixty-seven years old and suffers from extensive hearing loss. Due to a childhood illness, she is deaf in her right ear and has severe hearing loss in her left ear. Her husband, James Liese, is seventy-eight years old and deaf. They communicate with each other primarily in sign language. Susan Liese is fluent in American Sign Language (" ASL" ), while her husband uses a combination of " signed English and ASL." The Lieses claim that Susan Liese reads at a fourth-grade level and that James Liese reads at a sixth-grade level. James Liese also testified at his deposition that it is hard for him to read fine print because he suffers from a vision disorder that he called " age macro degeneration," or AMD.

On November 28, 2007, Liese went to the Hospital with her husband. Liese had called her primary care doctor— Dr. Brown— through a video relay service, complaining that she was experiencing dizziness and chest pains. The doctor ordered Liese to go directly to the emergency room. Upon arriving at IRMH, the Lieses went to the front desk. The front desk employee and Susan Liese exchanged written notes to convey Susan Liese's

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identifying information and her reason for coming to the Hospital. Both Susan Liese and James Liese asked for an interpreter at the front desk. The requests were made in writing and orally: James Liese passed a note requesting a " sign language interpreter," while either...

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