Atakpa v. Perimeter Ob-Gyn Associates, PC

• Decision Date: 30 September 1994
• Docket Number: Civ. No. 1:92-CV-2459-JEC.
• Citation: 912 F. Supp. 1566
• Parties: Esther ATAKPA, Plaintiff, v. PERIMETER OB-GYN ASSOCIATES, P.C.; Charlene Vogt, CNMW; Leslie Anne Pope, D.O.; and Does 1 and 2, Defendants.
• Court: U.S. District Court — Northern District of Georgia

912 F. Supp. 1566

Esther ATAKPA, Plaintiff, v. PERIMETER OB-GYN ASSOCIATES, P.C.; Charlene Vogt, CNMW; Leslie Anne Pope, D.O.; and Does 1 and 2, Defendants.

Civ. No. 1:92-CV-2459-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

September 30, 1994.

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James Patrick McCrary, Atlanta, GA, for plaintiff.

Robert P. Riordan, Alston & Bird, Atlanta, GA, for defendants.

ORDER

CARNES, District Judge.

This case is presently before the Court on Plaintiff's Motion for Summary Judgment 63-1, or in the alternative, Plaintiff's Motion for Partial Summary Judgment 63-2, Defendant Perimeter OB-GYN's Motion for Leave to File Supplemental Brief 74, and Defendant Perimeter OB-GYN's Motion to Amend Response to Plaintiff's Discovery 77-1, or in the alternative, Defendant Perimeter OB-GYN's Motion to Withdraw Response with Brief in Support 77-2. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that Plaintiff's Motion for Summary Judgment 63-1 is denied; Plaintiff's Motion for Partial Summary Judgment 63-2 is denied; Defendant Perimeter OB-GYN's Motion for Leave to File Supplemental Brief 74 is granted; Defendant Perimeter OB-GYN's Motion to Amend Response to Plaintiffs Discovery and/or Motion to Withdraw Response with Brief in Support 77 is granted in part and denied in part.

BACKGROUND

The undisputed facts and those facts taken in a light most favorable to the nonmovant establish the following. Plaintiff, Esther Atakpa is a black woman, presently 29 years of age, who immigrated to the United States from Nigeria in or about 1983. Born in Nigeria, plaintiff is married to Kingsley Atakpa, a U.S. citizen; the Atakpas live in the Atlanta area. Defendant Perimeter Ob-Gyn Associates, P.C. ("Perimeter") operates an obstetrics and gynecological ("ob-gyn") clinic in the Atlanta area. Perimeter is owned by physicians Leslie Anne Pope, D.O.,¹ Alan Pomerance, M.D. and Bernard Greenberg, M.D. Since 1991, certified nurse-midwife Charlene Vogt, CNMW, ("Vogt") has worked for Perimeter.² At all times relevant to plaintiff's treatment by Perimeter, Vogt worked under a set of written protocols. (Def. Perimeter Reply 72 at Aff. of Greenberg, Ex. A.) For the initial visit, this protocol lists "HIV screen (have patient sign informed consent)" among fifteen laboratory tests. Id. at 1. Perimeter provides ob-gyn and nurse-midwife services to the public. Since January, 1992, some 25 persons have worked out of Perimeter's offices. During that time, Perimeter has directly employed at least 21 people, including Vogt, Drs. Pope, Pomerance and Greenberg, and an ultrasound technician who also provides services there. Perimeter also subleases space to another physician and his two employees. In 1992, Perimeter's gross receipts were some $1.2 million. Perimeter accepts Medicare and Medicaid patients.

Plaintiff called the "Med-Call" physician referral service in connection with her pregnancy, and was referred to Dr. Pope at Perimeter. Plaintiff called Perimeter and was scheduled for an appointment with Dr. Pope on January 17, 1992. When plaintiff arrived for her appointment on January 17, 1992, she was told that Dr. Pope was in surgery and unavailable to meet with her. Instead, plaintiff was referred to nurse-midwife Vogt. Vogt met with plaintiff, oriented her to the practice, asked about her health history, performed a physical examination upon her, and had plaintiff complete certain clinic forms; plaintiff told Vogt that she was Nigerian.

Vogt asked plaintiff to complete a Perimeter "HIV HIGH RISK WOMEN HISTORY/FLOW SHEET." (Pl.Mot. for Sum.J. 63 at Ex. A.) Plaintiff responded "no" to all of the questions on the form, except those asking about: (a) her husband's/partner's other sex partners; (b) her own emigration from a "high risk" country; and, (c) her partners' emigration from a "high risk" country—these questions she left blank. Plaintiff also signed the form expressly refusing an HIV test.

Aware through information volunteered by plaintiff that plaintiff was at higher than normal risk for HIV as an African immigrant, Vogt discussed with plaintiff the importance of HIV testing in order to obtain proper prenatal care. Vogt's recorded notes state, "Refused HIV because believes if you know you have AIDS then you die—will think about it—Told would discuss at next appt....." (Dep. of Vogt at Ex. P-2.) Upon leaving the clinic on January 17, 1992, plaintiff paid Perimeter $200.00 for her initial visit.

On February 7, 1992, plaintiff returned to Perimeter for ultra-sound diagnostics. At that time she did not see Vogt or any of the clinic doctors, or discuss HIV-testing at all.

On February 10, 1992, prior to seeing plaintiff again, Vogt met with Dr. Greenberg to discuss plaintiff's refusal to consent to HIV testing. Dr. Greenberg informed Vogt that plaintiff must be tested for HIV in order for plaintiff to receive treatment from Perimeter.

On February 12, 1992, plaintiff returned to Perimeter and met with Vogt. Vogt told plaintiff that HIV testing would be mandatory for plaintiff if she wanted to continue to receive treatment from Perimeter. Plaintiff declined to take the test, got up from the examination table, and left the clinic. Plaintiff left the clinic that day, upset at how she had been treated, and subsequently sought treatment elsewhere.

On or about February 13, 1992, plaintiff's husband, Kingsley Atakpa, contacted Perimeter to complain about how his wife had been mistreated. Mr. Atakpa spoke to nurse Cayla Richardson and asked why his wife had been required to submit to an HIV test. Richardson told Mr. Atakpa that plaintiff would have to submit to an HIV test because "she was from the high risk area and that that was what made her at risk." (Dep. of Richardson, at 20.)

After the call on February 13, 1992, Richardson wrote a note to Vogt, wherein she stated:

Charli—I told him Kingsley Atakpa it was office policy to have test done if from high risk area. He is upset because he's spent $510.00 for nothing when it could have been avoided. I told him you'd call him either today or tomorrow.

(Pl.Brief 63 at Ex. B.)

On February 13 or 14, 1992, Vogt spoke with Mr. Atakpa by telephone. Mr. Atakpa testified that Vogt told him that office policy required HIV testing for all patients. (Dep. of Kingsley Atakpa at 25-26.)

On February 17, 1992, plaintiff wrote a letter complaining about Perimeter's conduct toward her to the Medical Association of Georgia. (Pl.Brief 63, Ex. C.) The Medical Association of Georgia never responded. Plaintiff obtained legal counsel. Plaintiff's counsel attempted to resolve plaintiff's grievances through communications with MAG Mutual Insurance Co., defendants' insurance carrier. This effort was unsuccessful, and plaintiff filed this suit.

DISCUSSION

I. DEFENDANT PERIMETER'S MOTION TO FILE SUPPLEMENTAL BRIEF

Defendant Perimeter has filed a Motion to File a Supplemental Brief on the issue of plaintiff's standing to sue for injunctive relief under § 504 of the Rehabilitation Act of 1973 ("§ 504"), 29 U.S.C. § 794; Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d; and the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12188(a)(1) and 42 U.S.C. § 2000a-3(a). Both parties agree that this Court has the independent obligation to evaluate the standing of a plaintiff. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (standing is not merely pleading requirement, but "an indispensable part of the plaintiff's case"); City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (alleging actual case or controversy is threshold requirement of federal court jurisdiction); Aikins v. St. Helena Hosp., 843 F.Supp. 1329, 1333 (N.D.Cal.1994). Because the Court could have considered plaintiff's standing to sue for injunctive relief sua sponte, this Court finds that the issue of standing is properly before the Court and will consider the Supplemental Brief filed by defendant Perimeter, and Plaintiff's Response in Opposition. Accordingly, this Court grants Defendant Perimeter's Motion to File a Supplemental Brief.

II. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff in her Motion for Summary Judgment has expressly withdrawn all her purely race-related claims based upon 42 U.S.C. §§ 1981 and 1982. Plaintiff has also withdrawn her claims against Vogt under § 504 and § 2000d of the Civil Rights Act of 1964 ("Title VI"). See "Conclusion" infra (regarding dismissal without prejudice). Thus, plaintiff's remaining claims are pursuant to the ADA, § 504 (only against Perimeter), Title VI (only against Perimeter), breach of contract, and intentional infliction of emotional distress.

A. Summary judgment standard

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. at 2552.

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. at 2552; Apcoa, Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 (11th Cir.1990). However, the movant is not required to negate his opponent's claim. The movant may discharge his burden by merely "`showing'—that...