Nordwall v. PHC-Las Cruces, Inc.

• Decision Date: 31 July 2013
• Docket Number: No. CIV 12–0429 JB/WPL.,CIV 12–0429 JB/WPL.
• Citation: 960 F.Supp.2d 1200
• Parties: Bilye NORDWALL, in her capacity as Personal Representative of James Davis, Deceased, Plaintiff, v. PHC–LAS CRUCES, INC., a New Mexico corporation, d/b/a Memorial Medical Center, Defendant.
• Court: U.S. District Court — District of New Mexico

960 F.Supp.2d 1200

Bilye NORDWALL, in her capacity as Personal Representative of James Davis, Deceased, Plaintiff,

v.PHC–LAS CRUCES, INC., a New Mexico corporation, d/b/a Memorial Medical Center, Defendant.

No. CIV 12–0429 JB/WPL.

United States District Court,

D. New Mexico.

July 31, 2013.

Roseanne Camunez, Joleen K. Youngers, Camunez Law Firm, Las Cruces, NM, for Plaintiff.

Michael J. Dekleva, Holly E. Armstrong, Rebecca Kenny, Madison, Harbour & Mroz PA, Albuquerque, NM, Kevin Kuhn, Stephen E. Oertle, Wheeler Trigg O'Donnell, LLP, Denver, Colorado, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant PHC–Las Cruces, Inc.'s Motion for Partial Summary Judgment on Plaintiff's Claim Under the Rehabilitation Act and Memorandum in Support, filed September 20, 2012 (Doc. 41)(“Motion for Summary Judgment”). The Court held a hearing on November 28, 2012. The primary issues are: (i) whether Plaintiff Bilye Nordwall's cause of action under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, brought in her capacity as personal representative of her son, James Davis, deceased, survived J. Davis' death; and (ii) whether PHC–Las Cruces, Inc. d/b/a Memorial Medical Center (“Memorial Medical”) intentionally discriminated against J. Davis by acting with deliberate indifference to a substantially likely violation of the Rehabilitation Act during J. Davis' February, 2009, admission to Memorial Medical. The Court will grant the Motion for Summary Judgment. The Court concludes that the United States Court of Appeals for the Tenth Circuit would incorporate the applicable New Mexico law to determine whether Rehabilitation Act claims survive a claimant's death. Because the Court concludes that the Tenth Circuit would look to whether an intentional tort claim abates at the time of the claimant's death as the applicable New Mexico law, and because the Tenth Circuit has held that an intentional tort claim abates at the time of a claimant's death, the Court concludes that J. Davis' Rehabilitation Act claim abated at the time of his death. Accordingly the Court will grant summary judgment in favor of Memorial on this basis, and dismiss with prejudice B. Nordwall's Rehabilitation Act claim. As an alternative basis, the Court will grant summary judgment in favor of Memorial Medical on B. Nordwall's Rehabilitation Act claim, because B. Nordwall has not established a genuine issue of material fact whether Memorial Medical intentionally discriminated against J. Davis under § 504 of the Rehabilitation Act, and cannot, therefore, recover compensatory damages. She has failed to show Memorial Medical acted with deliberate indifference to J. Davis' federally-protected rights, because there is no genuine issue of material act whether policymakers knew of a substantially likely violation to J. Davis' rights under the Rehabilitation Act and then failed to act to prevent such a violation. Because no federal law claims remain after the Court dismisses the Rehabilitation Act claim, the Court declines to exercise supplementary jurisdiction over the state-law claims, and will remand the case to state court.

FACTUAL BACKGROUND

This case arises from the allegations of Bilye Nordwall, J. Davis' mother, that Memorial Medical violated J. Davis' rights under the Rehabilitation Act during his stay at Memorial Medical from February 7, to February 23, 2009. See First Amended Complaint ¶¶ 66–77, at 10–11, filed in state court on March 23, 2012, filed in federal court on April 24, 2012 (Doc. 1–1)(“Complaint”). Memorial Medical is a hospital located in Las Cruces, New Mexico. See Complaint ¶ 8, at 2 (setting forth this fact); Answer to First Amended Complaint ¶ 9, at 2 (Doc. 4)(“Answer”)(not controverting this fact).

As a result of an infection that occurred shortly after his birth, J. Davis became profoundly deaf. See Response to Motion for Partial Summary Judgment ¶ 15, at 4, filed October 19, 2012 (Doc. 47)(“MSJ Response”)(setting forth this fact); Defendant PHC–Las Cruces, Inc.'s Reply in Support of Motion for Partial Summary Judgment Regarding Plaintiffs' Rehabilitation Act Claim at 2, filed November 9, 2012 (Doc. 53)(“Reply”)(not controverting this fact). J. Davis could not hear anything below the ninety decibel range. See MSJ Response ¶ 21, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). Nonetheless, J. Davis communicated verbally to some degree. See Plaintiff's Supplemental Response to Motion for Partial Summary Judgment ¶ 6, at 2, filed January 22, 2013 (Doc. 61)(“Supplemental Response”)(stating that J. Davis' verbal communication was limited, especially after he lost his teeth); Defendant PHC–Las Cruces, Inc.'s Sur Reply in Support of Its Motion for Partial Summary Judgment Regarding Plaintiffs' Rehabilitation Act Claim ¶ 4, at 2, filed February 4, 2013 (Doc. 62)(“Surreply”)(not controverting this fact). Additionally, J. Davis used sign language, lip reading, and writing to communicate during his February, 2009, admission at Memorial Medical.¹See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). J. Davis' stepfather, Carl Nordwall, understood J. Davis' speech. See Deposition of Carl Nordwall at 24:15–16 (taken August 28, 2012), filed November 9, 2012 (Doc. 53–1)(“C. Nordwall Depo.”). See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). J. Davis had a good vocabulary for a deaf person. See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). Additionally, C. Nordwall stated that J. Davis was “perceptive in reading people's face—or lips and faces, expressions, gestures, and all of that.” C. Nordwall Depo. 24:24–25:3. See Reply ¶ 5, at 2 (setting forth this fact); Supplemental Response at 1 (not controverting this fact). Signing is referred to as “manual communication.” Deposition of Bilye Nordwall at 46:16–17 (taken August 27, 2012), filed November 19, 2012 (Doc. 47–1)(“B. Nordwall Depo”). J. Davis' mother, B. Nordwall, is a trained signer who is familiar with three different types of sign. See MSJ Response ¶ 18, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). American Sign Language (“ASL”) is grammatically different than English. See B. Nordwall Depo. at 46:18–20. J. Davis was most comfortable, in manual communication, with American Sign Language (“ASL”). See MSJ Response at ¶ 16 at 5 (setting forth this fact).² As a signer, B. Nordwall communicates the substance of messages, whereas a certified interpreter translates conversations verbatim. See MSJ Response ¶ 18, at 5 (setting forth this fact); Reply at 3 (not controverting this fact).

B. Nordwall accompanied J. Davis to some of his medical appointments. See MSJ Response ¶ 22, at 5 (setting forth this fact).³ In her capacity as a signer, B. Nordwall could not translate anything medically technical. See MSJ Response ¶ 22, at 5 (setting forth this fact); Reply ¶ 7, at 3 (not controverting this fact). In general, interpreters are often necessary for deaf patients to understand treatment options and to obtain informed consent. See Supplemental Response ¶ 10, at 3 (setting forth this fact); Surreply at 4 (not controverting this fact). Before his February 2009 stay at Memorial Medical, J. Davis demonstrated an ability to communicate with healthcare providers in writing. See Motion for Summary Judgment ¶ 20, at 6 (setting forth this fact).⁴

Memorial Medical admitted J. Davis on February 7, 2009, and discharged him February 23, 2009. See MSJ Response ¶ 23, at 5 (setting forth this fact); Reply at 3 (not controverting this fact). J. Davis suffered from chronic obstructive pulmonary disease, cor polmonae, pulmonary arterial hypertension, congestive heart failure, and Hepatitis C.⁵See Motion for Summary Judgment ¶ 9, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). J. Davis required supplemental oxygen at all times. See Motion for Summary Judgment ¶¶ 10, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). J. Davis often refused to wear the non-rebreather oxygen mask. See Motion for Summary Judgment ¶¶ 11, at 4 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). As a result, J. Davis experienced life-threating oxygen deprivation. See Motion for Summary Judgment ¶¶ 12, at 5 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact). Because of these symptoms, healthcare providers attempted to treat him with supplemental oxygen, and J. Davis was sometimes combative during his treatment at Memorial Medical.⁶See Motion for Summary Judgment ¶¶ 13–14, at 4–5 (setting forth this fact); MSJ Response ¶ 8, at 4 (not controverting this fact).

When Memorial Medical admitted J. Davis in February, 2009, Memorial Medical had a policy regarding interpretive services for deaf patients. See Motion for Summary Judgment ¶ 17, at 5 (setting forth this fact); MSJ Response ¶ 10, at 4 (not controverting this fact). The Memorial Medical Center Administrative Policy and Procedure Manual, filed September 20, 2012 (Doc. 41–5) (“Administrative Policy and Procedure Manual”), addressed the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and interpreter services. Memorial Medical's Administrative Policy and Procedure Manual required that Memorial Medical provide deaf patients with auxiliary aids. See Administrative Policy and Procedure Manual at 2; MSJ Response ¶ 39, at 8–9 (setting forth this fact); Reply at 4 (not controverting this fact). Memorial Medical possessed “low-tech communication aides,” including easy listening devices, communication boards, telecommunication devices for the deaf (“TDD”), a contact list of available area sign language interpreters, and televisions equipped with closed caption....