Biondo v. Kaleida Health
| Decision Date | 10 April 2018 |
| Docket Number | Case # 15-CV-362-FPG-LGF |
| Parties | KATHLEEN BIONDO, Plaintiff, v. KALEIDA HEALTH d/b/a/ BUFFALO GENERAL MEDICAL CENTER, Defendant. |
| Court | U.S. District Court — Western District of New York |
Plaintiff Kathleen Biondo ("Plaintiff") brings discrimination claims against Defendant Kaleida Health d/b/a/ Buffalo General Medical Center ("Defendant"), alleging that Defendant failed to provide her with sign language interpretive services during a September 21-26, 2014 stay at the hospital. ECF No. 1. Plaintiff seeks monetary, declaratory, and injunctive relief under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("RA"); Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L § 290 et seq.; and the City of Buffalo Antidiscrimination Law, Buffalo Code pt. II, § 154-9 et seq. Defendant has moved for summary judgment. ECF No. 46. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED in its entirety.
Plaintiff is a deaf individual who primarily communicates in American Sign Language ("ASL"). She can read and write English but claims to do so with limited proficiency. On Sunday,September 21, 2014, Plaintiff felt lightheaded and passed out on the floor of her home. Her husband, Andrew Biondo, drove her to Defendant's emergency room ("ER"). Plaintiff and her husband arrived at the ER around 10:30pm and requested an ASL interpreter upon check-in. According to Plaintiff and her husband, they both told nurses that Mr. Biondo could not translate for Plaintiff because there would "be misunderstandings." K. Biondo Dep. Trans. 227:14-15. Later in the evening, Dr. Michael Tinnesz assessed Plaintiff and noted that Plaintiff "translates through her husband at the bedside with sign language" and that she was "awake, alert, and appropriate, answering all questions . . ." ECF No. 50-1 at 58. The doctor noted that he would send off routine labs and anticipated that Plaintiff would be admitted to the hospital. Id.
At some point after Dr. Tinnesz's assessment, Mr. Biondo asked the nurse examining Plaintiff when the ASL interpreter would arrive. The nurse informed Mr. Biondo that "they couldn't get a hold of anybody" because of the late hour. A. Biondo Dep. Tr. 58: 4-6. Mr. Biondo continued to follow up with the nurses about an ASL interpreter, but an interpreter never came. Around 3:00am on Monday, Plaintiff was admitted to the hospital as an inpatient. In the absence of a professional interpreter, Mr. Biondo, who knows ASL and had experience interpreting for his wife at some of her past medical appointments, interpreted for his wife but felt uncomfortable and at times ill-equipped to fully convey to his wife everything that the doctors were telling him.
Later that morning, Plaintiff underwent a table tilt test, which helps diagnose patients who feel faint or lightheaded. A nurse explained the test to Plaintiff before administering it, and Plaintiff signed a consent form that also explained the test in non-technical language. Plaintiff passed out during the test and became distraught when she woke up. The doctor comforted Plaintiff and told her she had a vasovagal condition. He explained the diagnosis, and a nurse gave her printed materials that further explained vasovagal conditions.
On Tuesday, Mr. Biondo returned to work while Plaintiff stayed in the hospital. In Mr. Biondo's absence, Defendant's staff communicated with Plaintiff through written notes, because her medical records indicated that written English was her preferred method of communication and did not indicate that Plaintiff ever requested an interpreter. ECF No. 50-1 at 134. Plaintiff reported feeling light-headed, and a nurse gave her medication that abated her condition. According to Plaintiff, she kept asking the nurses for an interpreter, and they kept saying "we will, we will, we will." K. Biondo Dep. Tr. 173: 6-7. When Mr. Biondo arrived after work, he again asked a nurse about getting an interpreter. The nurse told him that none were available. Mr. Biondo stopped asking about interpreters out of frustration.
On Wednesday, Mr. Biondo again went to work while Plaintiff stayed at the hospital. Plaintiff was transferred to a new unit of the hospital. Nurse Manager Jennifer DiPasquale, who oversaw the unit's nursing practice, introduced herself to Plaintiff and asked if she needed anything. J. DiPasquale Dep. Trans. 91:2-5. Plaintiff "started attempting to speak to" DiPasquale, at which point DiPasquale noticed that Plaintiff was hearing impaired and retrieved a pen and paper. Id. DiPasquale wrote to Ms. Biondo, "Is it okay to communicate with you like this?" Id. at 91:15. Plaintiff confirmed that it was, and then Plaintiff continued writing notes back and forth with DiPasquale about her treatment. DiPasquale did not offer Plaintiff an ASL interpreter or ask if she had already been offered one because Plaintiff indicated that note writing was sufficient. Id. at 93:3-11.
Later that day, a doctor requested an endocrinology consult to rule out adrenal insufficiency as a cause of Plaintiff's symptoms. The doctor completing the consult communicated with Plaintiff via paper and pen, but Plaintiff said she was frustrated and did not understand what was going on. Throughout the day, Plaintiff repeatedly grew frustrated and would shake her head when she didnot understand something, but she did not write any notes saying that she did not understand or that written communication was insufficient. Mr. Biondo briefly stopped by the hospital to visit Plaintiff after work on Wednesday but then left to fill in for Plaintiff as a volunteer at St. Mary's School for the Deaf. He did not speak with any doctors or ask anyone for an interpreter that evening. A. P. Biondo Dep. Trans. 101-111.
Plaintiff remained in the hospital on Thursday, September 25, 2014 and again wrote notes back and forth with hospital staff. During a physical therapy session, Plaintiff was "so upset" to communicate in writing with the therapist, and she would point to words in the therapist's written notes and shake her head because she did not understand them. Even when the therapist clarified his writing with more simple terms that she could understand, Plaintiff was still upset because "that [was] not satisfactory to [her.]" K. Biondo Dep. Trans. 189:1-4.
Finally, on Friday, September 26, 2014, Plaintiff saw her "morning doctor," who told her that she could go home. ECF No. 50-3 at 192. Plaintiff signed her discharge instructions, which were written in lay-terms, and then left the hospital in the afternoon.
Pursuant to Defendant's policy, staff must inform hearing impaired patients of their right to "free language interpretation or Deaf/Hearing Impaired services." ECF No. 50-20 at 1. Interpreter services "must be provided in all circumstances when a person is unable to speak, read, write or understand the English language at a level that permits him/her to interact effectively with health providers to ensure effective communication in rendering appropriate medical treatment." Id. Additionally, if staff use a family member or companion to interpret, they should have the patient sign a waiver of interpreter services. ECF No. 50-20 at 3.
According to DiPasquale, who investigated Plaintiff's hospital stay after she filed a formal complaint, staff members did not follow Defendant's interpretive service policy because they did not notify Plaintiff of her right to free interpretation services. J. DiPasquale Dep. Tr. 183. DiPasquale also found that staff violated the policy by failing to obtain a signed waiver of interpretive services from Plaintiff. Id. at 184.
Summary judgment is appropriate if "the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Sousa v. Roque, 578 F.3d 164, 169 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. The court resolves all ambiguities and draws all factual inferences in favor of the nonmovant, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56).
To defeat summary judgment, therefore, nonmoving parties "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and they "may not rely on conclusory allegations or unsubstantiated speculation." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted). At the summary judgment stage, a nonmoving party"must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. N.Y.C., 132 F.3d 145, 149 (2d Cir.1998).
Plaintiff raises a claim for monetary damages under the RA. Section 504 of the RA provides that no "otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The RA's implementing regulations require hospitals receiving federal...
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