Bax v. Doctors Med. Ctr. of Modesto, Inc.

• Decision Date: 02 July 2019
• Docket Number: No. 1:17-cv-01348-DAD-SAB,1:17-cv-01348-DAD-SAB
• Citation: 393 F.Supp.3d 1000
• Parties: Mark BAX and Lucia Pershe Bax, Plaintiffs, v. DOCTORS MEDICAL CENTER OF MODESTO, INC. and Tenet Healthcare Corporation, Defendants.
• Court: U.S. District Court — Eastern District of California

393 F.Supp.3d 1000

Mark BAX and Lucia Pershe Bax, Plaintiffs,

v.DOCTORS MEDICAL CENTER OF MODESTO, INC. and Tenet Healthcare Corporation, Defendants.

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

United States District Court, E.D. California.

Signed July 2, 2019

Andrew Rozynski, Pro Hac Vice, David J. Hommel, Pro Hac Vice, Eisenberg & Baum, LLP, New York, NY, Mary C. Andrues, Los Angeles, CA, John Karl Buche, Buche and Associates, P.C., La Jolla, CA, for Plaintiffs.

Andrew W. Russell, Fox Rothschild LLP, Los Angeles, CA, Jeffrey D. Polsky, Fox Rothschild LLP, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANT TENET HEALTHCARE CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT DOCTORS MEDICAL CENTER OF MODESTO, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Dale A. Drozd, UNITED STATES DISTRICT JUDGE

This matter came before the court on January 8, 2018 on defendant Tenet Healthcare Corporation's ("Tenet Healthcare") motion for summary judgment, or in the alternative, partial summary judgment, and defendant Doctors Medical Center of Modesto, Inc.'s ("DMC") motion for partial summary judgment. (Doc. No. 21.) At the hearing, attorney Andrew Rozynski appeared on behalf of plaintiffs. Attorney Jeffrey Polsky appeared on behalf of defendants. Following oral argument, the matter was taken under submission. Having considered the parties' briefs and oral arguments, and for the reasons stated below, the court will grant Tenet Healthcare's motion for summary judgment and grant in part and deny in part DMC's motion for partial summary judgment.

BACKGROUND

Plaintiffs are deaf and communicate primarily in American Sign Language ("ASL"). They contend that defendants discriminated against them by not facilitating effective communication during their separate hospital visits, in violation of Title III of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act of 1973, Section 1557 of the Patient Protection and Affordable Care Act ("ACA"), the Unruh Civil Rights Act, and the California Disabled Persons Act ("CDPA").

The following facts are undisputed unless otherwise noted.¹ DMC is a full-service healthcare facility located in Modesto, California and treats patients from different areas within the Stanislaus County community. (Doc. No. 29-2 at ¶ 1.) DMC is an indirect subsidiary of Tenet Healthcare. (Id. at ¶ 40.) All of the events alleged by plaintiffs occurred at DMC. (Id. at ¶ 37.)

In order to accommodate the special needs of hearing-impaired patients and visitors to the hospital, DMC maintains policies and procedures to ensure effective communication between hospital staff and persons who are deaf or hard of hearing. (Id. at ¶ 3.) DMC's Auxiliary Aids and Services Policy states: "Facility personnel will provide qualified sign-language interpreters and/or other auxiliary aids to sensory-impaired persons where necessary to afford such persons an equal opportunity to benefit from the services provided." (Id. at ¶ 4.) Specifically, a qualified sign language interpreter and/or other appropriate auxiliary aids will be provided in the following, non-exhaustive circumstances:

(a) determination of a patient's medical history or description of ailment or injury;

(b) provision of patient rights, informed consent or permission for treatment;

...

(d) diagnosis or prognosis of an ailment or injury; (e) explanation of procedures, tests, treatment, treatment options or surgery;

(f) explanation of medications prescribed including dosage as well as how and when the medication is to be taken and any possible side effects;

(g) explanation regarding follow-up treatment, therapy, test results or recovery;

(h) discharge instructions;....

(Doc. No. 31-1 at ¶ 4.) The Auxiliary Aids and Services Policy further provides guidelines for the initial intake of patients, the provision of interpreting services, addressing the needs of non-patient deaf persons, the use of additional facility services, and the maintenance of a log pertaining to requests for auxiliary aids or services. (Doc. No. 29-2 at ¶ 5.)

In order to provide live in-person ASL interpreters when needed, DMC contracts with local outside agencies, including NorCal Services for the Deaf and Hard of Hearing ("NorCal Services"). (Id. at ¶ 6.) DMC also employs other auxiliary aids to communicate with people who are hearing-impaired, including communication boards, Video Remote Interpreting ("VRI"),² and written correspondence. (Id. at ¶ 7.)

A. Mark Bax's Visits to DMC

On October 14, 2015, DMC admitted Mr. Bax as a patient after he visited the hospital due to pain and swelling stemming from an infection in his left foot. (Id. at ¶ 9.) DMC completed an examination of Mr. Bax's left foot and provided him with antibiotics. (Doc. No. 31-1 at ¶ 11.)

On October 16, 2015, Dr. Michael Wolterbeek performed exploratory surgery on Mr. Bax's foot. (Doc. No. 29-2 at ¶ 10.) In connection with Mr. Bax's surgery on October 16, 2015, DMC ordered an in-person interpreter from NorCal Services who translated for Mr. Bax pre-surgery. (Id. at ¶ 12.) Both the preoperative and postoperative diagnoses were "left foot diabetic and infection with localized gangrene

." (Id. at ¶ 11.) On October 17 and 18, 2015, the days following the surgery, Mr. Bax communicated to DMC staff via written notes about his foot pain and whether he had received pain medication. (Doc. No. 31-1 at ¶¶ 14, 15.) On October 19, 2015, DMC ordered an in-person interpreter who assisted with discussions regarding Mr. Bax's foot infection and high blood sugar. (Doc. No. 29-2 at ¶ 13.)

DMC scheduled Mr. Bax for a second surgery on October 21, 2015, to clean and close up the wound

in his left foot. (Id. at ¶ 15.) DMC ordered interpreters from NorCal Services for October 20 and 21, 2015, to facilitate communication the day before Mr. Bax's surgery and the day of that surgery. (Id. at ¶ 17.) On October 20, 2015, the interpreter arrived without issue. (Id. at ¶ 18.) On October 21, 2015, however, despite DMC's request for an interpreter to be present on the day of Mr. Bax's second surgery, no interpreter arrived. (Id. at ¶ 19.) When the interpreter did not arrive ahead of the planned surgery, DMC staff called NorCal Services, who said that no interpreters were available. (Id. at ¶ 20.)

DMC staff therefore attempted to communicate with Mr. Bax through other means, including VRI. (Id. at ¶ 22.) However, technical difficulties were experienced with the VRI system, and Mr. Bax informed staff that it was unacceptable for him. (Id. at ¶ 23.) Mr. Bax declined to proceed with surgery without a live interpreter present. (Id. at ¶ 25.)

The following day, on October 22, 2015, DMC supplied an ASL interpreter for discussions regarding additional patient education. (Id. at ¶ 27.) Mr. Bax's second surgery was rescheduled and took place on October 23, 2015 with a live interpreter present. (Id. at ¶ 26.) During the surgery, the surgeon could not save Mr. Bax's fifth toe and it had to be amputated. (Id. at ¶ 28.)

Following his second surgery, Mr. Bax remained in the hospital for several days, during which time he was given intravenous fluids and medication instructions via written communications, without the aid of an interpreter. (Doc. No. 31-1 at ¶¶ 23–25.) Mr. Bax was discharged on October 27, 2015. (Doc. No. 29-2 at ¶ 29.) Although DMC had ordered an interpreter to be present at the time of Mr. Bax's discharge, the interpreter did not arrive on time. (Id. at ¶ 30.)

On November 12, 2015, Mr. Bax returned to the emergency room at DMC due to continued issues with his left foot. (Doc. No. 29-2 at ¶ 31.) On November 13, 2015, a peripherally inserted central catheter ("PICC") line was put in place for Mr. Bax, during which an interpreter was present. (Doc. No. 31-1 at ¶ 27.) At other times throughout the day, staff conducted various patient education procedures with Mr. Bax, for which an interpreter was not present. (Id. ) Mr. Bax was admitted to the hospital and underwent a third surgery to his foot on November 14, 2015. (Doc. No. 29-2 at ¶ 32.) An interpreter was present for Mr. Bax's November 14, 2015 surgery. (Id. at ¶ 33.) Mr. Bax was subsequently discharged on November 18, 2015. (Id. at ¶ 34.)

In sum, the evidence before the court on summary judgment establishes Mr. Bax was provided an interpreter on at least seven different occasions throughout his various hospital stays, on October 16, October 19, October 20, October 22, October 23, November 13, and November 14, 2015. (Doc. No. 21-1 at 12–13.) On two other occasions, DMC requested an interpreter but one did not arrive. In this regard, on October 21, 2015, DMC was informed that no interpreters were available, and on October 27, 2015, the interpreter did not arrive in time before Mr. Bax was discharged. (Id. )

Mr. Bax contends that he requested a live interpreter "[a]lmost every day." (Doc. No. 29 at 11.) He further contends that Dr. Wolterbeek issued, and DMC staff disregarded, a "standing order" for a continuous interpreter to be made available for Mr. Bax between October 21 and October 27, 2015. (Doc. No. 31-1 at ¶¶ 8–9.) When an interpreter was not present, DMC staff attempted to communicate with Mr. Bax through other methods, including live VRI interpreters, communication boards, and written notes. (Doc. No. 29-2 at ¶ 14.) Plaintiffs dispute, however, that these other methods were effective. (Id. ) Mr. Bax asserts that there were problems with the VRI system throughout his hospital stays, that he felt limited in communicating through a communication board, and that it was difficult to communicate in writing with the staff. (Id. )

B. Lucia Pershe Bax's Visit to DMC

On January 12, 2017, Ms. Bax visited the emergency room at 9:58 p.m. with complaints of neck and side pain. (Id. at ¶ 54.) Upon her arrival to DMC, Ms. Bax filled out a needs assessment form, where she indicated a desire for an ASL interpreter.

(Id. at ¶ 58.) An in-person interpreter was not provided to her, however. (Id. at ¶ 60.)

The parties...