Doherty v. Southern College of Optometry

• Decision Date: 28 April 1987
• Docket Number: No. 82-2881 GA.,82-2881 GA.
• Citation: 659 F. Supp. 662
• Court: U.S. District Court — Western District of Tennessee
• Parties: James Paul DOHERTY, Plaintiff, v. SOUTHERN COLLEGE OF OPTOMETRY, Defendant.

659 F. Supp. 662

James Paul DOHERTY, Plaintiff, v. SOUTHERN COLLEGE OF OPTOMETRY, Defendant.

No. 82-2881 GA.

United States District Court, W.D. Tennessee, W.D.

April 28, 1987.

Gail O. Mathes, Memphis, Tenn., for plaintiff.

Leo Bearman, Jr., Memphis, Tenn., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GIBBONS, District Judge.

In this action plaintiff James Paul Doherty originally asserted claims against several defendants under Section 504 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794, under 42 U.S.C. § 1983 and under state law. The § 1983 claim was dismissed prior to trial. In a single trial the state law claims were tried before a jury, and the handicap discrimination claim was tried before the court. The jury returned a verdict of $225,000 for plaintiff on the state law claim. The court now makes the following findings of fact and conclusions of law with respect to the handicap discrimination claim, in which Southern College of Optometry is the only defendant.

I. FINDINGS OF FACT

A. Plaintiff's Personal Background and Handicap.

Plaintiff, who was 36 years old at the time of trial, has retinitis pigmentosa. Retinitis pigmentosa is an eye disease that results in the loss of peripheral vision and also causes a loss of sight in reduced light. Thus, in layman's language retinitis pigmentosa results in tunnel vision and night blindness. Plaintiff's visual fields are restricted to a minimal field of 6° in his right eye and 10° in his left eye.

Plaintiff also suffers from an undiagnosed neurological condition associated with his retinitis pigmentosa. A 1967 evaluation of plaintiff by the Clinical Center of the National Institute of Health revealed that plaintiff suffers from a "neurologic disease manifest by peripheral sensory neuropathy, minimal motor abnormalities and cerebellar signs." Plaintiff's neurological condition affects his motor skills as well as his sense of touch and his manual coordination. He has more difficulty than the average person in using dials and also has difficulty in walking due to the neurological condition and his visual limitations. The neuromuscular problem prevents plaintiff from feeling pressure, pain or vibration in his fingertips.

Although plaintiff had originally planned to be an optometrist, as his father and grandfather had been, he did not pursue an optometry career after high school due to his visual and neurological problems. Instead, plaintiff enrolled as a student at the University of Mississippi. He received a B.A.E. degree in social studies in 1971 and an M.S.S. degree in history in 1972, both from that school. Plaintiff then taught in a private school. After leaving the school plaintiff had difficulty finding suitable employment.

B. Plaintiff's Application and Enrollment at Southern College of Optometry.

Southern College of Optometry (SCO) is a not-for-profit institution that received federal financial assistance in the form of grants between 1977 and 1982. The federal funds were used in a variety of programs, including the clinical program.

In 1975 plaintiff first sought admission to SCO. He was placed on stand-by status. In 1976 plaintiff applied again with the same result.

On January 5, 1977, prior to his third admission application, plaintiff was examined by SCO faculty members Drs. Robert W. Ebbers, Denson Smith and Vasa at SCO's clinic. This examination was conducted at the request of Phyllis Dale, a counselor for the Rehabilitation for the Blind Division of the Tennessee Department of Human Services who was working with plaintiff. The express purpose of the examination was to ascertain whether plaintiff was able to perform the requirements of the optometry program and, what, if any, employment opportunities would be available to plaintiff after graduation. The examination lasted for several hours. During the course of the examination plaintiff told Ebbers and others at the SCO Clinic that he was planning to attend SCO. Although the examination was for the purpose of assessing vision problems, Ebbers testified that during this examination he had an opportunity to observe plaintiff's movements.

Plaintiff's medical and health records for the prior ten years were made available to the clinic personnel at SCO in January 1977. In particular, the 1967 report of the National Institute of Health was provided to Ebbers. The report sets out in detail plaintiff's neurological and visual problems. Ebbers testified that he read this report thoroughly. Further, the SCO clinic staff was aware of retinitis pigmentosa and "all of its implications."

After examining plaintiff and reviewing plaintiff's medical records, Ebbers wrote to Phyllis Dale on January 12, 1977, advising that plaintiff's "ability to overcome his field constriction by eye movements, combined with his academic record, and his motivation, all indicate that visually he should be able to handle any academic endeavor he attempts." Moreover, Ebbers stated, "the stability of his condition should persist and should not interfere with completion of his studies or continuation of his chosen profession."

About this same time plaintiff was given a general physical examination by Dr. Nicholas Gotten, Jr. On January 13, 1977, Gotten wrote to Phyllis Dale indicating that plaintiff has an "undiagnosed neurological condition, stable." Gotten further stated that plaintiff was unsuited for certain vocations that required coordination and sensory input. Gotten doubted that plaintiff could be an optometrist, but felt he should be allowed to try. This letter was not furnished to SCO.

On February 1, 1977, Phyllis Dale met with Ebbers and Vasa to discuss SCO's evaluation of plaintiff for a vocation in the field of optometry. Both doctors indicated to her that at first they had been pessimistic about plaintiff's ability to succeed in optometry. They told her, however, that after examining him and reviewing the medical records, they believed that plaintiff's condition appeared stable, that the possibilities for plaintiff in optometry were promising, and that plaintiff should be able to practice optometry without restriction. Moreover, Ebbers and Vasa advised Dale that even if plaintiff's condition should deteriorate, he would still have employment opportunities in teaching, supervising others in training, or in operating an optometric business. Based on the assurances and statements of Ebbers and Vasa, Dale recommended that the Rehabilitation for the Blind Division of the Department of Human Services support plaintiff in optometry school.¹

On November 28, 1977, with Dale's assistance, plaintiff sought admission for the third time to the four-year optometry program at SCO. Plaintiff's application stated on line 10: "Physical Handicaps: Retinitis pigmentosa."

Plaintiff was accepted into the O.D. program at SCO for the academic year beginning in the fall of 1978. Subsequent to his acceptance a Dr. James W. Day completed a physical examination form for plaintiff which was submitted to SCO. The form did not indicate plaintiff's handicaps.²

Plaintiff entered SCO in the fall of 1978, and successfully completed more than three years of the four year O.D. program. At the end of the summer quarter in 1981, which was the beginning of his final year at SCO, plaintiff was a senior in good standing, with a grade point of 2.41 of a possible 4.00. He had completed the same course of study as others in his class at that time and had done so without any special accomodations by SCO.

During this three year period, plaintiff participated in volunteer clinical projects sponsored by the Lions Clubs in Guatamala, Costa Rica and Belize, examined and worked with patients, and performed successfully in the SCO clinic. Dr. Thomas Stander, a classmate of plaintiff, testified that he had traveled to Central America with plaintiff on four occasions, that plaintiff actively participated in patient care, and that on one trip he and plaintiff took charge of the trip.

C. Plaintiff's Failure to Pass Clinical Proficiency Requirements.

During plaintiff's second year at SCO, in response to changes in state laws permitting optometrists to use diagnostic drugs to diagnose eye pathology, the school changed its graduation requirements to make its existing externship program mandatory for all students. In addition, it added clinical proficiency requirements which had to be satisfied prior to entering the mandatory externship program, including a requirement that students demonstrate proficiency on various instruments used in the pathology clinic. The externship and clinical proficiency requirements were made applicable to all students enrolled at that time.³

In the spring of 1981, plaintiff experienced difficulty using certain instruments in the pathology clinic. Dr. Denson Smith, Chief of the Pathology Clinic, was advised of plaintiff's difficulties in May 1981. Smith observed plaintiff in the pathology clinic and concluded in July 1981 that it would be hazardous for plaintiff to perform any techniques in the pathology clinic that would involve physical contact with patients. Smith was of the opinion that plaintiff did not have the necessary "eye sight" or the "coordination and sensitivity in his fingers" to perform with the instruments in the pathology clinic. After this point Smith prohibited plaintiff from touching patients in the pathology clinic and restricted plaintiff's activities to taking case history and evaluating data. Plaintiff was permitted to continue working with patients in SCO's other specialty clinics, including the contact lens clinic.

On September 11, 1981, Dr. John Levene, SCO Dean of Faculty, wrote to SCO President Spurgeon B. Eure, stating: "In view of his tremendous handicaps, plaintiff is to be commended for the tremendous effort that he has put out and what he has achieved so far academically.... He obviously must realize that he can never practice optometry as a "normal" clinical practitioner."...