Glanz v. Vernick, Civ. A. No. 89-0748-MA.

• Decision Date: 05 February 1991
• Docket Number: Civ. A. No. 89-0748-MA.
• Citation: 756 F. Supp. 632
• Parties: Rosalie GLANZ, executrix of the estate of Raymond Vadnais, Plaintiff, v. Dr. David M. VERNICK, Dr. Michael Miller, Beth Israel Corporation, and Beth Israel Hospital, Defendants.
• Court: U.S. District Court — District of Massachusetts

756 F. Supp. 632

Rosalie GLANZ, executrix of the estate of Raymond Vadnais, Plaintiff, v. Dr. David M. VERNICK, Dr. Michael Miller, Beth Israel Corporation, and Beth Israel Hospital, Defendants.

Civ. A. No. 89-0748-MA.

United States District Court, D. Massachusetts.

February 5, 1991.

COPYRIGHT MATERIAL OMITTED

Harvey A. Schwartz, Schwartz, Shaw & Griffith, Boston, Mass., for plaintiff.

Claudia Hunter, Bloom and Buell, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

In April, 1989, plaintiff's decedent, Raymond Vadnais, brought this suit alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973 (the "Act"), 29 U.S.C. § 794, along with two state-law claims. Mr. Vadnais claimed that defendant Dr. Vernick, a staff member at Beth Israel Hospital, refused to perform elective ear surgery on him because Mr. Vadnais had tested positive for Human Immunodeficiency Virus (HIV), associated with Acquired Immune Deficiency Syndrome (AIDS). Mr. Vadnais claimed to have suffered severe pain in his right ear, which pain was prolonged because of the defendants' failure to perform surgery and disappeared only when surgery was performed elsewhere.

On March 14, 1990, Mr. Vadnais died of AIDS-related illnesses. The motion of plaintiff, executor of the estate of Mr. Vadnais, to be substituted as a party plaintiff pursuant to Fed.R.Civ.P. 25(a)(1) was allowed. Prior to Mr. Vadnais's death, defendants had filed motions for summary judgment. Those motions were stayed to allow defendants to file a motion to dismiss on the ground that the federal cause of action abated with Mr. Vadnais's death. That motion was denied in part, and the executor was allowed to maintain this suit to seek compensatory, but not punitive, damages. Glanz v. Vernick, 750 F.Supp. 39 (D.Mass.1990). The case is now before me on the summary judgment motions.

I

The allegations in the complaint can be briefly summarized as follows. In December, 1986, defendant Dr. Vernick saw Mr. Vadnais at the Ear, Nose, and Throat Clinic (the "ENT Clinic") at Beth Israel Hospital and treated him for severe pain in the right ear, at first by prescribing antibiotics and ear drops. In January, 1987, Dr. Vernick diagnosed a perforation in Mr. Vadnais's right ear and, at Mr. Vadnais's third visit, recommended surgery to repair the perforation. After Mr. Vadnais agreed to undergo surgery, Dr. Vernick learned that Mr. Vadnais was infected with HIV and in March, 1987, informed Mr. Vadnais that he would not perform the operation. The ear condition persisted, causing severe pain and discomfort, while Mr. Vadnais continued the ineffective use of antibiotics and ear drops.

In August, 1988, Dr. Yale Berry, unaware of Mr. Vadnais's HIV status, performed the surgery, curing Mr. Vadnais's ear problem. Subsequently, Mr. Vadnais brought this lawsuit seeking to enjoin defendants from denying him any further surgical procedures. Mr. Vadnais also sought compensatory damages for the pain and suffering and emotional distress caused by the delay in receiving corrective surgery, along with punitive damages and attorney's fees. As mentioned above, only the action for compensatory damages survived Mr. Vadnais's death.

II

Count I of the complaint charges that Dr. Vernick, Beth Israel Hospital, and Beth Israel Corporation (the latter two hereinafter referred to collectively as "Beth Israel"), by refusing to perform surgery, unlawfully discriminated against Mr. Vadnais because of his handicap, HIV seropositivity, in violation of § 504 of the Rehabilitation Act. Count II alleges a separate violation of § 504 against the Beth Israel defendants for failure "to adequately educate, train and supervise" staff regarding HIV and AIDS infection. Amended Complaint ¶ 88.

Section 504 states in pertinent part that "no otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, 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.

The defendants do not dispute that HIV-positive status is a "handicap" within the meaning of the Act. In fact, several district courts and the Department of Justice have found that it does qualify. See Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 714 F.Supp. 1377, 1385 n. 4 (E.D.La.1989), aff'd, 909 F.2d 820 (5th Cir. 1990). Nor do defendants contest that a private cause of action for compensatory damages is available under § 504. While the First Circuit has never squarely addressed the issue, see Hurry v. Jones, 734 F.2d 879, 886 (1st Cir.1984) (finding no need to reach the question); Ciampa v. Massachusetts Rehabilitation Comm'n, 718 F.2d 1 (1st Cir.1983) (assuming without deciding that damages are available under § 504), there is ample authority for the conclusion that compensatory damages are available. See Miener v. Missouri, 673 F.2d 969, 973-74 (8th Cir.) (collecting cases finding an implied right of action under § 504), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); see also Gelman v. Department of Educ., 544 F.Supp. 651 (D.Colo.1982) (concluding that compensatory damages, but not punitive damages, are available under § 504).

Rather, the defendants argue that summary judgment is appropriate for several other reasons. Dr. Vernick argues that summary judgment should be allowed in his favor because Mr. Vadnais was not "otherwise qualified" for surgery, as required by § 504, and because Dr. Vernick does not "receive Federal financial assistance." The Beth Israel defendants argue as to Count I that they never treated the patient, had no control over Dr. Vernick's medical decisions, and cannot be held vicariously liable for his actions. As to Count II, they argue that there is no liability under § 504 for failure to train.

Summary judgment may be granted to a moving party if there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The facts must be viewed in the light most favorable to the non-moving party. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Summary judgment cannot be issued if there exist any factual issues that need to be decided before the legal issues can be. Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir.1989).

A. "Receiving Federal Financial Assistance"

Plaintiff contends that Beth Israel is a "program or activity receiving Federal financial assistance" within the meaning of § 504 by virtue of the fact that it receives Medicare and Medicaid payments. The Act defines "program or activity" as "an entire corporation, partnership, or other private organization, or entire sole proprietorship — ... (ii) which is principally engaged in the business of providing ... health care...." 29 U.S.C. § 794(b)(3)(A). Beth Israel's ENT Clinic is clearly a "program or activity" as defined in this provision. Whether such a program qualifies as "receiving Federal financial assistance" within the meaning of § 504 solely because its medical services are paid for by Medicaid presents a pure question of law. The parties cite only once case that has met this issue head on. In United States v. Baylor Univ. Medical Center, 736 F.2d 1039 (5th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 958, 83 L.Ed.2d 964 (1985), the Fifth Circuit held that the receipt of Medicare and Medicaid payments by a hospital triggered the coverage of § 504. The Fifth Circuit found that legislative history establishes conclusively that Medicare and Medicaid were intended to constitute federal financial assistance for the purposes of Title VI, and that the scope and effect of § 504 were intended to be identical to those of Title VI. Id. at 1042-45. The Fifth Circuit also noted that this result accords with longstanding Department of Health and Human Services interpretation of § 504, id. at 1047, and is equally compelled by the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). Baylor Univ., 736 F.2d at 1046. I agree with the Fifth Circuit's reasoning and hold that a hospital's receipt of Medicare or Medicaid payments for its services qualifies as receiving federal financial assistance within the meaning of § 504.

It is undisputed that Mr. Vadnais presented himself to the ENT Clinic and that the Clinic referred him to Dr. Vernick, a staff physician. Beth Israel, not Dr. Vernick, billed Mr. Vadnais for the services provided at the ENT Clinic, and Beth Israel received Medicaid reimbursement for those services. Thus, summary judgment for the defendants cannot be granted on the ground that the alleged discrimination did not occur in a program receiving federal assistance.

Defendants also assert that the alleged discrimination did not occur in a federally funded program because the procedure that Mr. Vadnais underwent was an elective procedure, and elective surgery is not covered by Medicaid. Whether the particular procedure is covered, however, is irrelevant. If the ENT Clinic is a program or activity for the purposes of § 504, then it cannot discriminate against any handicapped individuals, regardless of whether they receive Medicaid benefits or not. Grove City College, 465 U.S. at 571 n. 21, 104 S.Ct. at 1220 n. 21; Baylor Univ., 736 F.2d at 1047-48.

Beth Israel further argues that, despite the fact that Mr. Vadnais was a patient of the hospital, that the hospital billed him, and that it received Medicaid payments for the treatment he received at the ENT Clinic, Mr. Vadnais was Dr. Vernick's patient, not Beth Israel's. Beth Israel cites Massachusetts case law for the proposition that a hospital cannot be held liable for the actions of its doctors. The cited cases, however, establish that a hospital can be vicariously liable for the actions of its doctors — the question of liability is...