Mayberry v. Von Valtier, 93-CV-71383-DT.

• Decision Date: 08 February 1994
• Docket Number: No. 93-CV-71383-DT.,93-CV-71383-DT.
• Citation: 843 F. Supp. 1160
• Parties: Shirley MAYBERRY, Plaintiff, v. Cheryl C. VON VALTIER and Rochester Family Practice Associates, Defendants.
• Court: U.S. District Court — Western District of Michigan

843 F. Supp. 1160

Shirley MAYBERRY, Plaintiff, v. Cheryl C. VON VALTIER and Rochester Family Practice Associates, Defendants.

No. 93-CV-71383-DT.

United States District Court, E.D. Michigan, S.D.

February 8, 1994.

Sidney Kraizman, Detroit, MI, for plaintiff.

Stephen D. McGraw, Thomas R. Williams, Christopher A. Cornwall, Kerr, Russell and Weber, Detroit, MI, for defendant Cheryl C. Von Valtier.

Charles E. Murphy, Cox & Hodgman, Troy, MI, for defendant Rochester Family Practice Associates.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT VON VALTIER'S MOTION FOR SUMMARY JUDGMENT

WOODS, District Judge.

This matter having come before the Court on defendant Cheryl C. Von Valtier's Motion for Summary Judgment;

The Court having reviewed the pleadings submitted herein, and being otherwise fully informed in the matter;

The Court finds that defendant's Motion shall be, and hereby is, DENIED.

Defendant, Cheryl C. Von Valtier, is a physician licensed to practice medicine in the State of Michigan. Plaintiff, Shirley Mayberry, is a 67 year old deaf woman. Since 1987, Dr. Von Valtier has treated Ms. Mayberry as her family physician. Ms. Mayberry testified that she was able to lipread until she completely lost her hearing in 1990, and that she is able to understand simple notes. Ms. Mayberry and Dr. Von Valtier communicated during physical examinations by passing notes back and forth, or by using a signor. The signor was often one of Ms. Mayberry's children, and on three occasions a professional interpreter had been used. Dr. Von Valtier testified that visits with Ms. Mayberry took twice as long with an interpreter than when they passed notes, but that she did not mind spending the extra time.

On March 15, 1991, Ms. Mayberry brought her daughter Claudia Langston to her appointment with Dr. Von Valtier. Ms. Langston told Dr. Von Valtier that her mother's hearing had gotten progressively worse. During that visit, Dr. Von Valtier discovered that the back pain Ms. Mayberry had earlier complained of was higher than she had originally understood. Dr. Von Valtier wrote the following note on her chart: "Ms. Mayberry states pain has not moved, but this is higher than I had understood her to say. Probably due to poor communication." Ms. Langston swears in her affidavit that Dr. Von Valtier told her that an interpreter made communication with Ms. Mayberry clearer and easier than writing notes. In addition, Dr. Von Valtier told her that she wanted Ms. Mayberry to have an interpreter when she was seen at her medical office.

On three occasions, Ms. Mayberry had an interpreter from Deaf, Hearing and Speech Services — Senior Citizens present during appointments with Dr. Von Valtier. On two of those occasions, once in 1989 and once in 1990, Dr. Von Valtier did not have to pay for the interpreter. On the third occasion, December 18, 1992, Ms. Mayberry was due to have a general examination, and she requested an interpreter because she felt she needed one. Dr. Von Valtier's office consented to pay for the interpreter's services pursuant to its duty under the Americans with Disabilities Act. Dr. Von Valtier wrote to Ms. Mayberry on January 7, 1993, summarizing the results of her examination.

Dr. Von Valtier was billed $28.00 by Monalee Ferrero for her interpreting services. Dr. Von Valtier paid the bill, and sent the following letter to Ms. Ferrero.

Enclosed is payment for your services to Shirley Mayberry in this office 12/18/92. The Medicare payment for Mrs. Mayberry's office visit has been received, and I would now like to explain why I won't be able to utilize your services in the future, or indeed why I really can't afford to take care of Mrs. Mayberry at all.

My regular fee for a 15 minute office visit is $40.00. I spent about 45 minutes with Mrs. Mayberry on December 12, 1992, for this I was paid $37.17 by Medicare and (hopefully) $9.29 by Mrs. Mayberry. My office overhead expense rate is a rather steady 70% of my gross receipts, which means that for that 45 minutes I was able to "pocket" $13.94, that is, until I paid your bill for $28.00.

I certainly hope that the Federal Government does not further slash this outrageous profit margin.

A copy of this letter was also sent to Ms. Mayberry.

After Ms. Mayberry received the letter addressed to Ms. Ferrero, she became angry and called Dr. Von Valtier's office to ask for her records. Ms. Mayberry admits that she did not ask Dr. Von Valtier what she intended by the letter. Ms. Mayberry interpreted the letter to mean that Dr. Von Valtier would not hire an interpreter for her again, and that she had been discharged as a patient. (Mayberry deposition, p. 120). At her deposition, Dr. Von Valtier explained that the letter was poorly written and ambiguous, and it was not her intention to discharge Ms. Mayberry from her practice, nor did she intend to refuse to pay for an interpreter in the future. Dr. Von Valtier claims to have a specific protocol for discharging patients, and that protocol was not initiated in this case. Dr. Von Valtier sums up the purpose of her letter as a protest of the Americans with Disabilities Act, saying:

I felt that although this ADA is the law of the land, and I have to obey it, I don't think it's fair. I wanted to protest it. I feel that I have a right to protest it even though I have to obey it. And this was one protest that I could make because of the fact that for six years, Shirley Mayberry and I successfully communicated with each other with pencil and paper. (Von Valtier Deposition, p. 58-59).

Plaintiff's complaint alleges that she has been denied future treatment by defendant because she is deaf. Plaintiff alleges that defendant's actions in refusing to provide interpreter services in the future, and in terminating her medical care, amounts to discrimination in violation of the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Federal Rehabilitation Act of 1973, and the Michigan Handicappers' Civil Rights Act.

Plaintiff seeks an injunction against defendant, ordering her to provide medical treatment to plaintiff, and to pay for an interpreter during medical appointments. It is requested that the injunction also order defendant to promulgate policies and procedures for providing interpreters to ensure effective communication for plaintiff and other deaf patients. Plaintiff additionally seeks an order that defendant be required to notify plaintiff and other deaf patients of their right to auxiliary aids and services. Plaintiff further seeks recovery for her emotional suffering in the amount of $10,000, along with attorney fees and court costs.

Pursuant to Fed.R.Civ.Proc. 56(c) a motion for summary judgment is to be granted only if the evidence indicates that no genuine issue of material fact exists. In order to avoid summary judgment, the opposing party must have set out sufficient evidence in the record to allow a reasonable jury to find for him at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The sufficiency of the evidence is to be tested against the substantive standard of proof that would control at trial. Anderson, 477 U.S. 242, 106 S.Ct. 2505. The moving party has the burden of showing that there is an absence of evidence to support the non-moving party's case. Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. In disposing of a motion for summary judgment, this Court must consider the evidence in the light most favorable to the non-moving party, but may weigh competing inferences for their persuasiveness. Matsushita, 475 U.S. 574, 106 S.Ct. 1348.

A. Americans with Disabilities Act (ADA)

Under the ADA, the general rule prohibiting discrimination by public accommodations states that:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). A place of public accommodation is defined to include the professional office of a health care provider. 42 U.S.C. § 12181(7)(F). Defendant Dr. Von Valtier's medical office is therefore a place of public accommodation for purposes of the ADA. The term disability means "a physical or mental impairment that substantially limits one or more of the major life activities of such individual...." It is undisputed that plaintiff's deafness is a disability under the ADA.

The ADA defines discrimination as including a failure to take necessary steps to ensure that no individual with a disability is denied services because of the absence of auxiliary aids and services. The Department of Justice has promulgated regulations to implement the ADA, and states in its commentary on the final regulations:

The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication.

Fed.Reg., Vol 56, No. 144, Page 35566 (July 26, 1991); 28 CFR 36.303, App. B. The regulations include examples of auxiliary aids and services required to be furnished where necessary to ensure effective communication. The examples given for persons with hearing losses include qualified interpreters and notetakers. 28 CFR § 36.303(b)(1). The effective communication requirement of the ADA has been interpreted such that Congress expects places of public accommodation to consult with disabled persons when it comes to auxiliary aids...