Durand v. Fairview Health Servs.

• Decision Date: 04 September 2018
• Docket Number: No. 17-1374,17-1374
• Citation: 902 F.3d 836
• Parties: Roger DURAND ; Linda Durand ; Priscilla Durand, Plaintiffs-Appellants v. FAIRVIEW HEALTH SERVICES, Defendant-Appellee Minnesota Hospital Association, Amicus on Behalf of Appellee(s)
• Court: U.S. Court of Appeals — Eighth Circuit

902 F.3d 836

Roger DURAND ; Linda Durand ; Priscilla Durand, Plaintiffs-Appellants

v.FAIRVIEW HEALTH SERVICES, Defendant-Appellee

Minnesota Hospital Association, Amicus on Behalf of Appellee(s)

No. 17-1374

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2018

Filed: September 4, 2018

Counsel who presented argument on behalf of the appellant was Kay Nord Hunt, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Roderick J. Macpherson, III, of Minneapolis, MN., Heather M. Gilbert and Terra L. Frazier, of Roseville, MN.

Counsel who presented argument on behalf of the appellee was Matthew S. Frantzen, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Marissa Kim Linden and Ryan C. Ellis, of Minneapolis, MN.

The following attorneys appeared on the amicus brief; Penelope Jane Phillips, Randi Winter, and Meggen E. Lindsay of Minneapolis, MN.

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

MELLOY, Circuit Judge.

Linda and Roger Durand, both of whom are hearing-impaired, and their hearing-abled daughter, Priscilla Durand (collectively, "Appellants"), allege Fairview Ridges Hospital ("Fairview") failed to provide "meaningful access" to "auxiliary aids and services," in the form of American Sign Language (ASL) interpreters and a teletypewriter (TTY), during the course of their adult son Shaun Durand’s terminal hospital stay, in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. ; Section 504 of the Rehabilitation Act (RA), 29 U.S.C. § 794 ; and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01, et seq . Additionally, Priscilla alleges an injury independent of her parents’ claim and asserts associational standing under the same statutes. The district court¹ granted Fairview’s motion for summary judgment as to both issues. We affirm.

I. Background

Linda and Roger are a married couple with six adult children. Although Linda and Roger are hearing-impaired, none of their children are deaf. The Durand children communicate with Linda and Roger through a combination of methods, including ASL, lip reading, finger spelling, speaking, and writing. Linda and Roger assert they "do not pick up on all the information their children communicate to them." Linda and Roger also assert they "do not always indicate when they don’t understanding something."

Shaun is Linda and Roger’s oldest child. When Shaun was seven years old he was diagnosed with Marfan syndrome

, a genetic disorder affecting his heart. Over the course of the next several years, Shaun underwent multiple heart surgeries. Appellants assert "Shaun had long believed that he would not live past the age of 30, and had declined to pursue a heart transplant or a left ventricular assist device." In May 2013, when he was thirty-one years old, Shaun passed away at Fairview Ridges Hospital.

Priscilla, Shaun’s sister and Linda and Roger’s daughter, played an active role in Shaun’s health care and management. In October 2012, Shaun executed an Authorization to Discuss Protected Health Information, designating Priscilla and three other siblings as individuals with whom his medical information could be shared. Neither Roger nor Linda were included in the authorization.

In November 2012, Priscilla and Shaun met with a Fairview social worker to discuss a transition to hospice care. Shortly thereafter, Priscilla, Shaun, and Fairview’s hospice director convened a meeting with the Durand family, including Linda and Roger. Fairview provided an interpreter for the meeting.

In December 2012, Shaun and a Fairview doctor executed a Provider Orders for Life Sustaining Treatment (POLST) wherein Shaun requested doctors not attempt to intubate or resuscitate.

In February 2013, Shaun executed a health care directive designating Priscilla as his sole health care agent. The directive also referred to his POLST and requested Fairview not attempt resuscitation.

In April 2013, Shaun was admitted to Fairview with renal failure

. Amy Klopp, an Advanced Practice Nurse, held a palliative "care conference." Fairview asserts care conferences allow "everybody who holds a stake in a person’s life to weigh in and feel comfortable and understand the decisions that have been made." Linda and Roger attended the conference. Fairview provided an interpreter for the meeting.

On May 7, 2013, Shaun was admitted to the Fairview intensive care unit for renal failure

. He was accompanied by Priscilla and one of his brothers. At the time Shaun was admitted he was "confused" and had a "decreased level of consciousness."

On the morning of May 8, 2013, Priscilla met with Nurse Klopp to discuss key medical decisions, including the decision to move Shaun to end-of-life comfort care and remove his respirator. Nurse Klopp and Priscilla also planned an afternoon care conference with the Durand family, including Linda and Roger. Around noon, Shaun’s siblings notified Linda and Roger of Shaun’s hospitalization.

Although Fairview requested an interpreter for the afternoon care conference, the interpreter did not arrive until after the conference started. Nurse Klopp then updated Linda and Roger through the interpreter, and Linda and Roger had an opportunity to ask Nurse Klopp questions through the interpreter. Around 5:00 p.m., Shaun’s physician held a meeting, with an interpreter present, for an unspecified period of time. According to Fairview’s records, an interpreter was dispatched by a third-party vendor to Fairview at 2:52 p.m., arrived at the hospital at 3:44 p.m., and departed the hospital at 6:00 p.m.

During the evening of May 8 and on the morning of May 9, 2013, nurses and doctors were in and out of Shaun’s room as a part of their hospital rounds. Interpreters were not present during these visits. At times, Priscilla or a sibling interpreted or shared updates regarding Shaun’s condition with Linda and Roger.

On May 9, 2013, Nurse Klopp convened a second care conference. Nurse Klopp updated the conference attendees, including Linda and Roger through the aid of an interpreter.

According to Linda and Roger, at that point they understood the end of Shaun’s life was near but believed the timeline to be a matter of days. Linda and Roger returned home, and Roger proceeded to work his typical overnight shift that night. Linda and Roger devised a plan where Linda would use Fairview’s TTY device to contact the voicemail box of Roger’s employer in the event there was a change in Shaun’s condition. No one had previously attempted to reach Roger at work. Roger asked his supervisor to frequently check the voicemail box.

Later in the evening, after learning Shaun would likely pass away in a matter of hours, Linda requested a TTY machine from the hospital. An administrator initially denied her request. Approximately one hour later, the administrator provided Linda with a TTY machine. Linda declined the administrator’s offer of assistance in setting up the device. Linda was ultimately unable to use the TTY machine. Priscilla and one of her siblings attempted to call Roger’s work number, but they did not leave voicemail messages. The police eventually notified Roger, while Roger was at work, that his son had passed away.

Linda, Roger, and Priscilla filed suit against Fairview, requesting a series of declaratory judgments, injunctive relief requiring Fairview to provide "appropriate auxiliary aids and services" to hearing-impaired individuals, as well as compensatory, treble, and punitive damages and attorneys’ fees. After extensive discovery, Fairview filed a motion for summary judgment, and Appellants filed a motion for partial summary judgment. The district court granted Fairview’s motion. Appellants filed a timely appeal.

II. Standard of Review

We review de novo the district court’s grant of Fairview’s motion for summary judgment, "viewing all evidence and reasonable inferences in the light most favorable to the nonmoving party." Barstad v. Murray Cty., 420 F.3d 880, 883 (8th Cir. 2005). "Summary judgment is appropriate only if no genuine dispute exists as to any material fact and the movant is entitled to a judgment as a matter of law." Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013) (citation omitted).

III. Discussion

"Title III of the ADA proscribes discrimination in places of public accommodation against persons with disabilities." Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) ; see 42 U.S.C. § 12182(a). Discrimination is defined by the ADA as "a failure to take such steps as may be necessary to ensure that no individual with a disability is ... treated differently than other individuals because of the absence of auxiliary aids and services." 42 U.S.C. § 12182(b)(2)(A)(iii). Similarly, Section 504 of the RA provides, "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794 ; see also Alexander v. Choate, 469 U.S. 287, 295, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (noting the type of discrimination Congress sought to remedy with the RA was the type resulting from "thoughtlessness and indifference—of benign neglect" rather than "invidious animus"). Minnesota law also provides people with a disability similar protections against discrimination, through the MHSA. See Minn. Stat. § 363A.11.

Although there are differences between the ADA and the RA, including the RA’s aforementioned federal funding requirement, the case law interpreting the two statutes is generally used interchangeably. Loye v. Cty. of Dakota, 625 F.3d 494, 496 (8th Cir. 2010) ; see also Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (noting the substantive similarities between the ADA and RA such that the "cases interpreting either are applicable and interchangeable" (citation omitted) ). Additionally, "[i]...