Bustos v. Dignity Health
| Decision Date | 02 August 2019 |
| Docket Number | No. CV-17-02882-PHX-DGC,CV-17-02882-PHX-DGC |
| Parties | Daniel Bustos and Constancia Bustos, Plaintiffs, v. Dignity Health d/b/a Chandler Regional Medical Center, Defendant. |
| Court | U.S. District Court — District of Arizona |
Plaintiff Daniel Bustos and his daughter Constancia assert disability discrimination claims against Defendant Dignity Health. Doc. 1. Defendant moves for summary judgment. Doc. 43. The motion is fully briefed (Docs. 51, 55), and oral argument will not aid in the Court's decision. See Fed R. Civ. P. 78(b). For reasons stated below, the Court will deny the motion.
Daniel lost his hearing at the age of three. His primary and preferred form of communication is American Sign Language ("ASL"). Constancia is not a licensed ASL interpreter, but is proficient in ASL and sometimes interprets for Daniel.
On September 13, 2015, Plaintiffs went to Defendant's hospital in Chandler, Arizona because Daniel was experiencing chest pain. He was admitted to the hospital and underwent heart surgery to repair a blocked artery. He was discharged one day after the surgery.
Plaintiffs filed suit in August 2017, claiming that Defendant discriminated against them based on Daniel's deafness by failing to provide an effective means of communication and forcing Constancia to serve as an interpreter. Doc. 1. Plaintiffs allege that the hospital's video remote interpreting ("VRI") system never worked and hospital staff denied Plaintiffs' requests for an in-person interpreter. Id. at 5-8. The complaint asserts claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794, the Patient Protection and Affordable Care Act ("ACA"), 42 U.S.C. § 18116, and the Arizonans with Disabilities Act ("AzDA"), A.R.S. § 41-1492. Id. at 8-15. Plaintiffs seek declaratory and injunctive relief, compensatory damages, and attorneys' fees and costs. Id. at 15-17.
Summary judgment is warranted where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences are drawn in that party's favor because "[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions[.]" Id. at 255; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Defendant does not dispute that it is subject to the anti-discrimination provisions of the ADA, Rehab Act, ACA, and AzDA, and the parties agree that the elements of a discrimination claim under these statutes are similar. Docs. 47 at 51, 51 at 2 n.1; see Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017) (ADA expresslymodeled after Rehab Act); Schmitt v. Kaiser Found. Health Plan of Wash., No. C17-1611-RSL, 2018 WL 4385858, at *1 (W.D. Wash. Sept. 14, 2018) (); Muhaymin v. City of Phoenix, No. CV-17-04565-PHX-SMB, 2019 WL 699170, at *8 (D. Ariz. Feb. 20, 2019) (); Duvall v. County of Kitsap, 260 F.3d 1124, 1135-36 (9th Cir. 2001) (). To prove that a defendant violated these laws, the disabled plaintiff must show that he was denied the defendant's services because of the disability. 42 U.S.C. § 12182(a); 29 U.S.C. § 794(a); 42 U.S.C. § 18116(a); A.R.S. § 41-1492.02(B); see Updike, 870 F.3d at 949; Duvall, 260 F.3d at 1135-36.
A hospital is liable to deaf patients where it fails to provide auxiliary aids needed for "effective communication." 42 U.S.C. § 12182(b)(2)(A); 28 C.F.R. § 36.303(c)(1); 45 C.F.R. § 92.202(a); see Robles v. Domino's Pizza, LLC, 913 F.3d 898, 906 (9th Cir. 2019). The type of auxiliary aid "necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place." 28 C.F.R. § 36.303(c)(1)(ii). Available auxiliary aids for deaf individuals include qualified in-person interpreters, VRI, computer-aided transcription services, written materials, and the exchange of handwritten notes. 42 U.S.C. § 12103(1); 28 C.F.R. §§ 35.104(a), 36.303(b); see Updike, 870 F.3d at 949-50; Arizona v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). "In determining what type of auxiliary aid is necessary, a public entity must 'give primary consideration' to the accommodation requested by the disabled individual." Updike, 870 F.3d at 950 (quoting 28 C.F.R. § 35.160(b)(2)); see Duvall, 260 F.3d at 1137; 28 C.F.R. § Pt. 35, App. A.
Federal regulations implementing the ADA prohibit a hospital from requiring a deaf patient to bring another person to interpret for him. 28 C.F.R. § 36.303(c)(2). The regulations also prohibit the hospital from relying on the patient's companion to interpretexcept in an emergency situation where no interpreter is available, or where the patient specifically requests that the companion provide such assistance, the companion agrees to do so, and reliance on the assistance is appropriate under the circumstances. 28 C.F.R. § 36.303(c)(3)(ii)-(iii); see also 45 C.F.R. § 92.201(e) ().
Defendant contends that Daniel was provided effective communication during his hospital stay because he was offered and used VRI. Doc. 47 at 56. A hospital that chooses to use VRI must ensure that it provides video and audio over a connection that delivers "clear, audible transmission of voices" and "high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication[.]" 28 C.F.R. § 36.303(f).
Daniel states that the hospital's VRI never functioned properly. Doc. 52-1 at 19. He explains that the VRI "would freeze up and not work, all the time." Id. at 20. Due to the constant malfunctioning, "[t]here was never a time when [they] had a successful conversation" and he "never saw a minute of smooth video or clear communication." Id. When pressed on this point in his deposition, Daniel made clear that "[n]ot one sentence, nothing," was ever successfully communicated through VRI. Id. at 34; see id. at 37-39, 45. Constancia similarly testified that the VRI malfunctioned when she was at the hospital and nurses confirmed that they tried to use VRI at other times to no avail. Id. at 62, 70-76, 81. A jury reasonably could find from this evidence that VRI was not an effective form of communication.
Defendant further contends that Daniel was comfortable communicating medical information in writing because he learned English in school, uses emails, text messages, and online shopping and banking, and communicates with customers at work through written notes. Doc. 47 at 56 (citing Doc. 47 ¶¶ 4-27). Daniel states that it was "really hard" for him to write in the hospital because one hand was bandaged and an IVwas in the other hand. Doc. 52-1 at 26-27. He further states that his English is not very good "so writing back and forth wouldn't be the greatest communication." Doc. 52-1 at 4. With respect to his education, he always had an interpreter in school who would help him with written assignments. Id. at 5-9. He works at Wal-Mart stocking shelves. Id. at 10. When customers learn he is deaf, they sometimes will write simple notes asking where products are located and he points them in the right direction. Id. at 11-12. But he communicates with coworkers through hand gestures, not English, and the company provides an ASL interpreter when he needs to read employment-related documents. Id. at 13.
Defendants have not shown that Daniel's knowledge and limited use of English compels a finding that the exchange of written notes was an effective form of communication. As noted, the type of auxiliary aid needed to ensure effective communication depends in large part on the nature and complexity of the communication involved and the context in which the communication occurs. 28 C.F.R. § 36.303(c)(1). "Medical evaluations often will be the type of complex and lengthy situation in which an ASL interpreter should be provided." Updike, 870 F.3d at 956. "[T]he interpretive agency guidelines accompanying the ADA regulations explain that the type of aids or services necessary for deaf individuals in medical settings may differ depending on the nature and complexity of the treatment provided." Bates v. Delmar Gardens N., Inc., No. 4:15-CV-00783-AGF, 2017 WL 4038132, at *8 (E.D. Mo. Sept. 13, 2017). For instance, a deaf patient "may need a qualified interpreter to discuss with hospital personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed medication[,]" whereas a person with the same disability "who purchases an item in the hospital gift shop may need only an exchange of written notes to achieve effective communication." Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 343 n.5 (11th Cir. 2012) ).
Daniel was in the hospital for a life-threatening medical condition that required surgery. His natural and preferred language is ASL, and "primary consideration" must begiven to his choice of auxiliary aid. 28 C.F.R. § 35.160(b)(2); see Updike, 870 F.3d at 950; Duvall, ...
To continue reading
Request your trial