Bax v. Doctors Med. Ctr. of Modesto, Inc., 21-16532
| Docket Number | 21-16532 |
| Decision Date | 18 October 2022 |
| Citation | 52 F.4th 858 |
| Parties | Mark BAX; Lucia Pershe Bax, Plaintiffs-Appellants, and Mary Birmingham, Plaintiff, v. DOCTORS MEDICAL CENTER OF MODESTO, INC., Defendant-Appellee, and Tenet Healthcare Corporation, Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David J. Hommel (argued) and Andrew Rozynski, Eisenberg & Baum LLP, New York, New York, for Plaintiffs-Appellants.
Jeffrey D. Polsky (argued), Fox Rothschild LLP, San Francisco, California; Marsha M. Piccone, Fox Rothschild LLP, Denver, Colorado; for Defendant-Appellee.
Before: Sidney R. Thomas, Carlos T. Bea, and Holly A. Thomas, Circuit Judges.
ORDER
The Opinion filed on September 12, 2022, is amended as follows.
On slip opinion page 5, line 27, delete and insert the following text: .
On slip opinion page 19, footnote 7, delete the text accompanying footnote 7 and insert the following:
The Baxes cite an ADA technical assistance manual from DOJ in support of their argument that DMC's reliance on note-writing was categorically inappropriate. See U.S. Dep't of Justice, ADA Best Practices Tool Kit for State and Local Governments – Ch. 3, General Effective Communication Requirements Under Title II of the ADA (Feb. 27, 2007), https://www.ada.gov/pcatoolkit/chap3toolkit.htm (TAM). They contend that this manual is entitled to "substantial deference" under our precedent.
Assuming Plaintiffs are correct about the level of deference due to the technical assistance manual, see Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008) ; see also Landis v. Wash. State Major League Baseball Stadium Pub. Facilities Dist., 11 F.4th 1101, 1106 (9th Cir. 2021), the manual does not answer the question whether DMC was categorically prohibited from relying on written notes. Instead, the manual makes clear that the effectiveness of auxiliary aids must be determined on a case-by-case basis, varying with the "context, ... length and complexity of the communication as well as the format." See TAM. The manual contains no categorical prescription as to the appropriate "aids and services" that are required for any particular context, stating only that certain aids or services "may be required" in various settings. Id. (emphasis added). In short, the manual reaffirms that our analysis under the "effective communication" rule is context dependent.
In Silva, the Eleventh Circuit cites to a different piece of ADA interpretive guidance from DOJ, 28 C.F.R. Pt. 36, app. A, in determining what constitutes "effective communication." See 856 F.3d at 837 n.8 . While the Baxes cite to this portion of Silva, they do not make the argument that 28 C.F.R. Pt. 36, app. A is entitled to administrative deference. We therefore do not consider any such arguments here. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).
The petition for panel rehearing, Dkt. No. 35, is otherwise DENIED, and no further petitions for rehearing will be accepted.
This case concerns the rights of deaf patients to effective communication about their medical care under federal and state antidiscrimination laws. Plaintiffs Mark and Lucia Bax are a married couple who have each been deaf since early childhood. They appeal from the district court's judgment, entered following a three-day bench trial, on their claims under (1) the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. ; (2) Section 504 of the Rehabilitation Act ( Section 504 ), 29 U.S.C. § 794 ; (3) Section 1557 of the Affordable Care Act (ACA), 42 U.S.C. § 18116(a) ; and (4) California's Unruh Civil Rights Act (Unruh Act), Cal. Civ. Code § 51, against Defendant Doctors Medical Center of Modesto, Inc. (DMC), an acute care hospital. The Baxes alleged that DMC failed to afford them effective communication during a series of hospital stays between 2015 and 2017.
Under all four statutes, the governing legal standard is substantially similar: To avoid discriminating against persons with disabilities, covered entities must ensure meaningful access to their services. In circumstances such as those presented here, the touchstone of the accessibility analysis is whether the entity provided auxiliary aids sufficient to ensure "effective communication" with deaf patients.
The district court concluded that DMC satisfied this obligation under the federal and state antidiscrimination laws at issue. We affirm.
Mark and Lucia Bax, a married couple, have each been deaf since early childhood. Mr. Bax considers his first language to be American Sign Language (ASL)1 and his second language to be English. Mrs. Bax considers her first language to be Spanish, her second language to be ASL, and her third language to be English.
DMC is an acute care hospital in Modesto, California. Mr. Bax was a patient at DMC in October and November 2015, and Mrs. Bax accompanied him during his stays. Mrs. Bax was a DMC patient in January 2017, accompanied by Mr. Bax. During the period of the Baxes' stays, DMC contracted with an interpreting service to provide in-person ASL interpreters for patients. DMC also contracted with another company to provide ASL interpretation via video remote interpreting (VRI)—an interpreting service that uses real-time, full-motion video and audio over a high-speed internet connection to permit a live ASL interpreter to communicate with a doctor and patient through a portable screen from a remote location.
Mr. Bax received in-patient medical care at DMC from October 13 to 27, 2015, and November 12 to 18, 2015, to treat his diabetes
and a wound infection on his foot, which required three surgeries and ultimately amputation of his left pinky toe. Mr. Bax's treatment at DMC also included a diabetes diagnosis, physical therapy, and various patient education sessions concerning diabetes.
During his fifteen-day October 2015 hospital stay, Mr. Bax requested an in-person interpreter on eight days. DMC provided an in-person interpreter on six of those days. On a seventh day, DMC attempted to use VRI to communicate with Mr. Bax, but the equipment malfunctioned due to internet connectivity issues, precluding meaningful communication with the remote interpreter. On the remaining day, DMC denied Mr. Bax's request for an interpreter to translate a Medicare notice. In addition to using interpreters, DMC staff often communicated with the Baxes during Mr. Bax's stay by writing notes, including to convey his diabetes diagnosis, conduct patient education sessions, and discuss post-operative care.
Mr. Bax returned to DMC for a surgical follow-up appointment on November 12, 2015. He was ultimately hospitalized for seven days of treatment, including a third foot surgery. During this hospitalization, Mr. Bax requested an in-person interpreter on three days, and DMC provided an interpreter on each of those days. On November 13, DMC provided in-person interpretation during the day and VRI at night. Connectivity issues with the VRI, however, interfered with Mr. Bax's ability to use it to communicate with DMC staff. On the remaining days of Mr. Bax's November hospitalization, DMC staff communicated with him in writing, including for emergency room evaluation, diagnosis, treatment counseling, and patient education.
On January 12, 2017, Mrs. Bax sought treatment at DMC's emergency room for pain in her kidney, neck, and back, and was admitted to the hospital for a few hours. During her stay, Mrs. Bax communicated with an emergency room physician assistant via VRI.
The Baxes, along with co-Plaintiff Mary Birmingham, filed this action against DMC, alleging disability discrimination under (1) Title III of the ADA; (2) Section 504; (3) Section 1557 of the ACA; (4) the Unruh Act; and (5) the California Disabled Persons Act (CDPA), Cal. Civ. Code § 54 et seq. Plaintiffs sought declaratory and injunctive relief concerning DMC's policies for providing communication aids, including interpreter services, for deaf or hard-of-hearing individuals. They also sought monetary damages and attorneys' fees.
The district court granted partial summary judgment to DMC and dismissed the CDPA claim, the Unruh Act claim (to the extent based on intentional discrimination), and Mrs. Bax's compensatory damages claim under Section 504 and the ACA. The district court denied summary judgment on Mr. Bax's compensatory damages claims under Section 504 and the ACA and on each Plaintiff's "companion claims."2 Plaintiff Birmingham's claims were resolved by her acceptance of an offer of judgment under which the district court issued an injunction against DMC concerning its practices for communicating with deaf patients.
The Baxes and DMC proceeded to a bench trial on the four remaining claims—the ADA, Section 504, ACA, and (to the extent not based on intentional discrimination) Unruh Act claims. Over the course of three days, the district court heard testimony from nine witnesses and considered 132 exhibits. Of the Baxes, the district court stated that it found them to be "poor historians with contradicting and inconsistent accounts of what happened during their hospitalizations." It also "question[ed] the[ir] credibility ... as witnesses." The district court ultimately issued findings of fact and conclusions of law in favor of DMC on all remaining claims and entered judgment for DMC. It concluded that DMC provided an in-person interpreter almost every time one had been requested and that DMC's use of in-person interpreters and other communication methods, including VRI and note-writing, had afforded the Baxes effective communication under the relevant statutes. The Baxes timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. After a bench trial, we review a district court's conclusions of law and mixed questions of law and fact de novo. See OneBeacon Ins. Co. v....
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