Biondo v. Kaledia Health, 18-1375

• Decision Date: 19 August 2019
• Docket Number: August Term 2018,No. 18-1375,18-1375
• Citation: 935 F.3d 68
• Parties: Kathleen BIONDO, Plaintiff-Appellant, v. KALEDIA HEALTH, d/b/a Buffalo General Medical Center Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

935 F.3d 68

Kathleen BIONDO, Plaintiff-Appellant,

v.KALEDIA HEALTH, d/b/a Buffalo General Medical Center Defendant-Appellee.

No. 18-1375

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: May 10, 2019

Decided: August 19, 2019

Andrew Rozynski, Juyoun Han, and Jennifer L. Karnes, Eisenberg & Baum, LLP, New York, NY, for the Appellant.

Mark R. Affronti, Roach, Brown, McCarthy & Gruber, Buffalo, NY, for the Appellee.

Before: Jacobs, Leval, Circuit Judges; Furman^* , District Judge.

Dennis Jacobs, Circuit Judge:

Kathleen Biondo, who is profoundly deaf, appeals from a judgment dismissing on summary judgment her claim that a hospital violated the Rehabilitation Act by failing to provide an American Sign Language ("ASL") interpreter. We conclude that material issues of fact preclude summary judgment.

In 2014, Biondo sought treatment at the Buffalo General Medical Center ("BGMC") for recurrent episodes of fainting. She and her husband, who is not hearing impaired, unsuccessfully requested an ASL interpreter from hospital staff several times during her six-day stay. Biondo has alleged violations of Section 504 of the Rehabilitation Act (the "RA"), Title III of the Americans with Disabilities Act (the "ADA"), the New York State Human Rights Law (the "NYSHRL"), and the City of Buffalo Antidiscrimination Law (the "CBAL"). The United States District Court for the Western District of New York (Geraci, J. ) granted BGMC’s motion for summary judgment as to the RA and ADA claims and dismissed Biondo’s state and municipal law claims without prejudice. Biondo appeals the dismissal of her RA claim for damages, having abandoned her claims for injunctive and declaratory relief pursuant to the RA and ADA.

This appeal concerns whether and when hospital staff members may be considered to be acting as ‘officials’ or ‘policymakers’ of the hospital so that their conduct may be attributed to the hospital and thereby establish the plaintiff’s right to damages on the ground that the defendant institution was ‘deliberately indifferent’ to a violation of the RA. BGMC’s internal policies require the provision of interpreter services in certain situations, including eliciting medical history, explaining treatment, and giving discharge instructions. Because the record contains evidence that the hospital staff at issue had knowledge of the deprivation of Biondo’s right to an interpreter, had the power to cure that violation, and failed to cure it, summary judgment in favor of BGMC was inappropriate.

BACKGROUND

The Hospital Stay. Biondo, who was born deaf, reads at a fourth-to-fifth grade level, has unintelligible speech, and cannot lipread well. She is, however, fluent in ASL. Her husband has no training in ASL and communicates with his wife in a combination of ASL and private signs and signals.¹ The Biondos also communicate, with some limitations, via text message.

Biondo was admitted to BGMC on September 21, 2014, after she experienced several fainting episodes, tightness in her chest, and skipped heartbeats. Biondo’s hospital admission documentation solicits "Preferred Mode of Communication"; the form indicates "Written." Nevertheless, on the day of their arrival at BGMC, both Biondos made requests for an ASL interpreter from several hospital staff: the attendant working at the arrival desk; nurses who escorted Biondo to a room and checked her vital signs; nurses in the emergency room; and nurses in the department to which Biondo was admitted. During her six-day hospitalization, she communicated with staff mostly by writing and through her husband (over his objection) when he visited.

Biondo testified that she "kept requesting an interpreter, and they ... kept saying, ‘we will, we will, we will.’ " App’x 227. Biondo made these requests by pointing at her left ear, by writing, and through her husband on his visits. No interpreter was provided during Biondo’s hospitalization. At some point, the Biondos gave up.

During her stay, Biondo provided and received information on her condition and underwent medical procedures, without an interpreter. The day after she checked in, Dr. Oliva Balan obtained her medical history with Mr. Biondo as interpreter. No interpreter was present when Dr. Donald Switzer examined Biondo for a cardiology consult or when Nurse Edwin Sewastynowicz performed a vascular invasive pre-procedure record, which included explanations of treatments and an opportunity for Biondo to ask questions. That same day, Biondo underwent a tilt table test, in which the patient is fixed to a table that is tilted until the patient faints. Before the test began, Biondo again unsuccessfully asked for an interpreter. Also before the test, Biondo was provided a generic informed consent form with a description of the procedure to be administered:

[Y]ou will be placed in an upright position and your heart rate and blood pressure will be monitored. Medication will be given to help you relax. The oxygen in your blood will be monitored.

S. App’x 38. The form also contained a page of authorizations and waivers. Biondo testified that she signed the consent form and underwent the test without understanding what she was signing or what the test entailed. Biondo took the test without her husband present, and testified that she was scared, cried, and (at one point) asked Dr. Switzer if she was going to die.

On September 24, the fourth day, Biondo was visited in her room by Nurse Jennifer DiPasquale, the nurse manager of the unit to which Biondo was admitted. DiPasquale testified that she communicated with Biondo via written notes and specifically asked Biondo whether that was sufficient:

A. Whether I wrote it, stated it, I don’t remember – I do remember posing the question, "Is this okay with you to communicate like this?" And she said yes.

Q. Okay. So you have a specific memory of writing to Ms. Biondo, "Is it okay to communicate with you like this?"

A. I do.

App’x 204. Biondo does not specifically dispute this account, though she disputes generally that she ever stated a preference for written communication and claims that she was forced to use writing for lack of options. On September 25, Biondo met with a physical therapist, with whom she communicated in writing; but Biondo testified that she frequently pointed at words and shook her head to indicate that she did not understand. When Biondo was discharged on September 26, she communicated in writing (without an interpreter) with Dr. Balan and with a discharge planner who gave her discharge materials that Biondo signed.

BGMC’s Interpreter Policy. BGMC has an "Interpreter/Translation/Teletypewriter" policy (the "Interpreter Policy") that governs the "process and procedure for identifying and assessing the language needs of Kaleida Health [BGMC] patients." S. App’x 163. It states:

Kaleida Health staff must inform the ... patient of his/her right to free ... Deaf/Hearing Impaired services. These services are provided to the patient, family member and/or companion at no cost.

Id. The policy specifies that interpreter services "must be provided" in several circumstances, including the explanation of procedures, tests, treatment, treatment options, discharge instructions, and determination of a patient’s medical history. Id. As to responsibility for implementation:

The department where the patient presents is responsible for initiating interpreter services as outlined in this policy. Any department referring a ... Deaf/Hearing Impaired patient to another Kaleida department must notify the receiving department of the patient’s identity, the language s/he speaks, and approximate arrival time.

Id. at 164. The policy advises that teletypewriter machines are available, and includes the names and phone numbers of three "Kaleida Health approved community vendor organizations" that provide "community face-to-face interpreters," from which "Departments may request an interpreter." Id. These vendors include Deaf Adult Services, for which the policy provides an additional phone number in case "an emergent situation arises and an interpreter ... is needed after normal business hours." Id. at 165. As to interpreting services by others:

If the patient declines the offer of an interpreter and requests that a family member, friend, or other party, facilitate communication on his/her behalf, such a person may be used only if the staff member is reasonably comfortable that the person will provide effective communication on the patient’s behalf. Staff must request that the patient or legal representative sign a "Waiver of Interpreter/Translator Services," in the patient’s primary language.

Id. No waiver was obtained from Biondo for the use of her husband as an interpreter.

Procedural History. Biondo sued BGMC in the Western District of New York on April 24, 2015, alleging claims under the ADA, the RA, the NYSHRL, and the CBAL, and seeking damages, attorney’s fees, injunctive relief, and a declaratory judgment. Following the close of discovery, the district court granted BGMC’s motion for summary judgment. The district court dismissed the RA damages claim because Biondo failed to establish deliberate indifference by showing that a BGMC official was aware of a potential violation of her rights, and failed to respond adequately. The court found that DiPasquale was the only doctor or nurse whose indifference could be attributed to BGMC, but that the record did not support a finding that DiPasquale had any knowledge of any such violation. See Biondo v. Kaleida Health, No. 15-cv-362 (FPG) (LGF), 2018 WL 1726533, at *6 (W.D.N.Y. Apr. 10, 2018). The district court also ruled that Biondo lacked standing for injunctive relief because she failed to demonstrate an ongoing or likely future injury. Id. at *7. Her stated reluctance to use BGMC was in part premised on its failure to supply ASL translation services.² Having dismissed Biondo’s federal claims, the district court declined to exercise supplemental jurisdiction over the NYSHRL and CBAL...