Bax v. Doctors Med. Ctr. of Modesto, 1:17-cv-01348-DAD-SAB

• Decision Date: 24 August 2021
• Docket Number: 1:17-cv-01348-DAD-SAB
• Parties: MARK BAX, et al., Plaintiffs, v. DOCTORS MEDICAL CENTER OF MODESTO, INC., Defendant.
• Court: U.S. District Court — Eastern District of California

MARK BAX, et al., Plaintiffs, v. DOCTORS MEDICAL CENTER OF MODESTO, INC., Defendant.

No. 1:17-cv-01348-DAD-SAB

United States District Court, E.D. California

August 24, 2021

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case concerns claims of disability discrimination. Plaintiffs Mark Bax and Lucia Pershe Bax (collectively “plaintiffs”) are deaf and communicate primarily in American Sign Language (“ASL”).^[1] They contend that defendant Doctors Medical Center of Modesto, Inc. (“DMC”) discriminated against them during their separate hospital visits by not facilitating effective communication in violation of Title III of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”), Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), and the California Unruh Civil Rights Act (“the Unruh Act”).^[2]

A three-day bench trial in this case commenced on February 4 2020. At trial, the court heard from nine witnesses and admitted 132 exhibits into evidence. (Doc. No. 63.) The witnesses who were sworn and testified at trial included plaintiff Mark Bax, plaintiff Lucia Bax, Andrea Riemersma (a nurse at DMC), Janice Halloran (the nursing support services manager and ADA coordinator at DMC), Dr. Michael Wolterbeek (a foot surgeon with privileges at DMC), LaDonna Martinez (the director of patient care services at DMC), Janelle Moland (a licensed clinical social worker at DMC), Lonnie Vaughn (a diabetes education and care specialist at DMC), and Anna Chalko (a former nurse at DMC). (Id.; Doc. Nos 68-70.) In addition, the court admitted the deposition of Blaine Rourke (a nurse practitioner at DMC) in lieu of live testimony. (Doc. No. 70 at 48.) Following trial, the court directed the parties to submit proposed findings of fact and conclusions of law, which the parties separately filed on March 23, 2020. (Doc. Nos. 71, 72.)

Having considered the testimonial evidence and exhibits, the parties' arguments, and the applicable law, the court sets forth the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).^[3]

FINDINGS OF FACT

A. The Parties

Plaintiff Mark Bax has been deaf since he was four years old. (Trial Tr. Vol. 1, 25:3-5.)^[4]Mr. Bax considers ASL to be his first language and English to be his second language. (Vol. 1, 25:6-8). He uses English when texting, and reads English to practice the language. (Vol. 1, 25:16-23.) Mr. Bax occasionally wears hearing aids to hear ambient sound. (Vol. 1, 25:9-15.) To communicate with someone over the phone while he is at home, Mr. Bax uses a video relay service, in which a sign language interpreter and Mr. Bax can see each other on a screen, and the interpreter interprets what is being said over the phone. (Vol. 1, 26:10-20.) Mr. Bax is married to Lucia Bax. (Vol. 1, 26:21-23.)

Plaintiff Lucia Bax has been deaf since she was three years old. (Vol. 1, 77:7-10.) Mrs. Bax grew up in El Salvador and was educated in the Spanish language until she moved to the United States at the age of thirteen and started learning ASL at a day school for the deaf. (Vol. 1, 75:21-77:4.) Mrs. Bax considers her first language to be Spanish, her second language to be ASL, and her third language to be English. (Vol. 1, 77:15-17.) She can lip read in Spanish a little bit, as that is one of the ways she communicated with her parents who are not deaf. (Vol. 1, 77:24-78:1, 78:20-79:2.) Mrs. Bax communicates using ASL, though she feels that her skill level with ASL is average. (Vol. 1, 77:11-14.) Mrs. Bax also feels that she is not very skilled at writing and reading English because she is still learning and practicing. (Vol. 1, 77:18-23.)

Defendant DMC is an acute care hospital in Modesto, California, that provides a wide range of medical services for acutely sick patients. (Vol. 2, 266:9-20.) DMC is one of three acute care facilities in the central valley region. (Vol. 2, 266:21-267:3.)

Mr. Bax was a patient at DMC in October and November 2015, with Mrs. Bax as his companion. Mrs. Bax was a patient at DMC in January 2017, with Mr. Bax as her companion.

B. DMC's Policies and Procedures for Deaf Patients and Companions

With the stated purpose of accommodating sensory impaired individuals and complying with Section 504 of the Rehabilitation Act and the ADA, DMC initiated a formal Auxiliary Aids and Services Policy in November 2015, which was reviewed in April 2016 and approved on May 25, 2016 (“the AAS Policy”). (DX-A at 2898, 2912.)^[5] DMC rolled out the AAS Policy in June 2016 in a training to all existing DMC employees. (DX-B; DX-C; Vol. 2, 270:17-272:24.) Also in June 2016, Janice Halloran, a nursing support services manager at DMC, was assigned by DMC's CEO to be the hospital's ADA coordinator. (Vol. 2, 267:4-12.) As ADA coordinator, Ms. Halloran was tasked with reviewing the AAS Policy and ensuring that it was followed. (Vol. 2, 268:4-11.) In taking on this role, Ms. Halloran participated in conference calls with ADA coordinators at other facilities to discuss what those other facilities were doing and how their process was working for them. (Vol. 2, 268:12-21.) There was no evidence presented at trial in this case to show that there had been an ADA coordinator at DMC before Ms. Halloran took on that role. At trial, Janelle Moland, a social worker for DMC for over seven years, was asked if she knew who the ADA coordinator was in October 2015 (when Mr. Bax first visited DMC), and she testified that her understanding was that the position had been Ms. Halloran, but that she did not remember when Ms. Halloran was given that position. (Vol. 2, 317:20-318:3; 326:5-8.) Presumably, Ms. Halloran would have known whether she had a predecessor, especially since she had been working for DMC for thirty years. Yet Ms. Halloran testified that she did not know who she replaced when she became the ADA coordinator in June 2016, and she did not know who the ADA coordinator at DMC was in October 2015.^[6] (Vol. 2, 300:2-6.) This testimony suggests to the undersigned that there in fact was no ADA coordinator at DMC before Ms. Halloran assumed that role in June 2016.

1. DMC's Practices in Late 2015

There was no evidence presented at trial that any formal policy or corresponding formal trainings for staff on auxiliary aids and services existed at DMC before implementation of the AAS Policy in June 2016. Neither side presented any written policy or documentation of trainings provided to staff prior to June 2016. The only evidence presented at trial that any such policy existed in 2015 came from Ms. Halloran's testimony that the old policy had the same “sum and substance” as the AAS Policy but the forms used under the AAS Policy, such as an auxiliary aids and services assessment tool, did not exist in 2015. (Vol. 2, 304:14-24; 306:18-21.) Several witnesses also testified regarding their experience providing services to deaf patients and companions at DMC before June 2016, in which they assessed the patient's ability to communicate and then used various methods to communicate, including exchanging written notes, using a live interpreter through video remote interpreting (“VRI”) services, ^[7] and using an in-person ASL interpreter provided by an outside vendor that contracted with DMC. (Vol. 1, 113:19-20; 125:7-9; 126:1-12; Vol. 2, 289:16-290:8.)

To provide remote ASL interpreters through VRI, DMC contracted with Cyracom, an interpreting service that also provided interpretation over the phone in other languages, such as Spanish. (Vol. 1, 146:16-23; DX-AO.) To provide live in-person ASL interpreters, DMC contracted with NorCal Services for the Deaf and Hard of Hearing (“NorCal”). (DX-AP.) NorCal provided a “Communication Services Request Form” for DMC to complete and fax to NorCal to request its interpreter services. (PX-1B; Vol. 1, 144:3-10.)

In terms of staff training before June 2016, Ms. Halloran testified that she was trained on operating the VRI laptops and that the VRI successfully connected to an ASL interpreter and worked appropriately during the training. (Vol. 2, 295:18-296:6.) Ms. Moland testified that she was trained to affirmatively take steps to get an interpreter for a patient once that patient was identified as primarily speaking another language. (Vol. 2, 328:7-11.) Anna Chalko, a nurse who was working at DMC in late 2015, testified that when she first started working at DMC, she was trained on how to communicate in situations where there might be language barriers, and though the training was not specific to deaf or hard of hearing patients, she learned in that training that DMC has sign language interpreters to use for deaf patients. (Vol. 3, 390:14-391:4.) Ms. Chalko also testified that based on that training, she knew that a deaf patient was entitled to an interpreter, but it was her impression and recollection that in 2015 and prior thereto, the patient needed to affirmatively ask for an interpreter. (Vol. 3, 392:8-17; 392:2-7.) However, Lonnie Vaughn, a diabetes education and care specialist who has been working at DMC for over thirty years, testified that she would absolutely get an interpreter if she identified that a patient needed one, even if the patient did not specifically request one. (Vol. 3, 335:20-25; 341:21-342:9.)

There was also inconsistent testimony at trial regarding who at DMC had authority to request interpreters from NorCal in 2015. LaDonna Martinez, the director of patient services at DMC testified that she signed NorCal request forms when she was a shift manager in late 2015 because it was her belief that only shift managers were allowed to request interpreter services. (Vol. 2, 249:16-17; 251:5-252:3.) However, Ms. Vaughn testified that she had called NorCal to request an...