Rose v. Cahee

• Decision Date: 22 July 2010
• Docket Number: Case No. 09-CV-142
• Citation: 727 F.Supp.2d 728
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Melody J. ROSE, Plaintiff, v. Steven M. CAHEE, M.D., Fond Du Lac Regional Clinic, S.C., and Agnesian Healthcare, Inc., Defendants.

727 F.Supp.2d 728

Melody J. ROSE, Plaintiff,

v.Steven M. CAHEE, M.D., Fond Du Lac Regional Clinic, S.C., and Agnesian Healthcare, Inc., Defendants.

Case No. 09-CV-142.

United States District Court,

E.D. Wisconsin.

July 22, 2010.

Kathryn S. Devine, Phillip J. Holroyd, Nina M. Knierim, Schiff Hardin LLP, Scott A. Schoettes, Lambda Legal Defense and Education Fund Inc., Chicago, IL, Rebekah A. Kopec-Farrell, Legal Services Program of Wisconsin, Milwaukee, WI, Bebe J. Anderson, Lambda Legal Defense and Education Fund Inc., New York, NY, for Plaintiff.

William R. Wick, Eric G. Nycz, Justin F. Wallace, Terri L. Weber, Nash Spindler Grimstad & McCracken LLP, Manitowoc, WI, Laurie J. McLeroy, Michael L. Johnson, Neal S. Krokosky, Otjen Van Ert & Weir SC, Milwaukee, WI, for Defendants.

ORDER

J.P. STADTMUELLER, District Judge.

Plaintiff Melody Rose ("Rose") brings this action alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12181 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and Wisconsin statutes § 106.52 and § 252.14. Rose's claims stem from the alleged refusal of defendant Dr. Steven Cahee ("Dr. Cahee") to perform gallbladder surgery on Rose because she is infected with human immunodeficiency virus (HIV). The three defendants filed two separate motions for summary judgment that are now before the court. Defendants Dr. Cahee and the Fond du Lac Regional Clinic, S.C. ("Fond du Lac Clinic" or "the Clinic") argue in the first motion that they are not subject to the ADA or the Rehabilitation Act, that they are entitled to judgment as a matter of law even if they are subject to the federal laws, and that the Wisconsin state law claims are preempted. Defendant Agnesian Healthcare, Inc. ("Agnesian") files an independent motion for summary judgment arguing: 1) that it is statutorily exempt from Title III of the ADA because it is an entity controlled by a religious organization; and 2) that Rose cannot prove her remaining claims. The motions involve overlapping factual issues and the court will address them in a single order for the sake of efficiency. Based on the reasoning set forth below, the court will grant, in part, and deny, in part, each of the motions filed by the defendants.

BACKGROUND

I. Medical Treatment Provided to Rose

Plaintiff Rose lives with HIV and has done so since before the medical consultation with Dr. Cahee that underlies this action. (Agnesian's Responses to Plaintiff's Additional Proposed Findings of Fact (PFOF) ¶¶ 1, 10). During the medical consultations and treatment at issue, Rose was an inmate at Taycheedah Correctional Institution ("Taycheedah") in Fond du Lac, Wisconsin. (Plaintiff's Response to Dr. Cahee's and Fond du Lac Clinic's Proposed Findings of Fact, (CFOF), ¶ 4; PFOF ¶ 2). Rose received medical treatment from several physicians during her incarceration. Her HIV was treated by Dr. Graziano, an immunologist and HIV specialist at the University of Wisconsin Hospital and Clinics, and her general care was provided by Dr. Steven Meress, a physician who provides services to Taycheedahprisoners. (PFOF ¶ 3, 4; CFOF ¶ 27; AFOF ¶ 23).

Dr. Graziano first saw Rose on January 9, 2008, and learned from Rose that she had a history of gallbladder infections. (CFOF ¶ 28). Rose visited Dr. Graziano again on February 27, 2008, and Dr. Graziano determined that she should be placed on antiretroviral medications to treat her HIV. (PFOF ¶ 6; CFOF ¶¶ 30, 31). However, Dr. Graziano did not begin Rose on medications at the time of her appointment because he first wanted Rose evaluated for gallbladder surgery. (CFOF ¶¶ 32, 33; PFOF ¶ 7). Because of Dr. Graziano's concerns, Rose's general physician, Dr. Meress, referred Rose for a surgical consult through the prison's off-site service request process. (PFOF. ¶ 9; CFOF ¶ 35; AFOF ¶ 24). Rose was referred to Dr. Cahee at the Fond du Lac Clinic for a surgical consultation regarding the removal of her gallbladder. (CFOF ¶ 38). Dr. Cahee is a licensed general surgeon and Rose met with him at the clinic on March 7, 2008. (AFOF ¶ 8; PFOF ¶ 10).

During Rose's consultation with Dr. Cahee, the surgeon confirmed that she was seeing him because of issues with her gallbladder. (PFOF.¶ 16). Rose and Dr. Cahee then discussed the matter of Rose's HIV and the level of her viral load. (PFOF ¶ 17). The subsequent exchange between Rose and Dr. Cahee is in dispute. Rose testified that when Dr. Cahee learned her viral load, he informed her that he would not do the surgery because of the danger it posed to him and his surgical team. Dr. Cahee, however, has a different interpretation of events. Dr. Cahee claims that he left the appointment without ever making a final decision or recommendation regarding surgery because he wanted further information. Following the appointment, Taycheedah faxed Dr. Cahee an ultrasound report regarding Rose's gallbladder and a list of Rose's medications. (PFOF ¶ 21). Approximately one month after his consultation with Rose, on April 9, 2008, Dr. Cahee dictated notes regarding their meeting. (PFOF ¶ 22; AFOF ¶ 43). Dr. Cahee made the following statement in his notes: "It seems reasonable to remove her gallbladder, although if she does indeed, as she says, have HIV with a high viral load, it seems reasonable that she might be started on medication for this as it could reduce the risk of exposure to the surgical team." (PFOF ¶¶ 33, 34; CFOF ¶ 51).

In the meantime, Rose resumed normal treatment at Taycheedah following her consultation at the Fond du Lac Clinic. During a visit with Dr. Meress at the prison, Rose informed him that Dr. Cahee refused to perform surgery because she was HIV positive. (PFOF ¶ 25). Dr. Meress followed up on Rose's comments by contacting Dr. Cahee via telephone on March 20, 2008. (CFOF ¶ 52; AFOF ¶ 40). Dr. Cahee responded to Dr. Meress's inquiries by stating that he would not perform surgery because Rose was not on HIV medications, resulting in a risk to him and his surgical team. (PFOF ¶ 26). Dr. Cahee also noted that he would not perform any surgery until Rose had been taking HIV medications for a month. (PFOF ¶ 27). Dr. Meress then contacted Dr. Graziano and reported to him the comments made by Dr. Cahee. (PFOF ¶ 31). Dr. Graziano instructed Dr. Meress to send Rose to the University of Wisconsin to have surgery performed. (PFOF ¶ 32; CFOF ¶ 54; AFOF ¶ 44).

Rose traveled to the University of Wisconsin on April 17, 2008, for a consultation regarding her gallbladder. (PFOF ¶ 35). Dr. Jon Gould, a surgeon at the University facility, determined that Rose's gallbladder should be removed because it contained gallstones and because she reported symptoms of biliary colic. (PFOF ¶¶ 36-37).Rose's HIV and the status of her HIV medications did not play any role in Dr. Gould's decision. (PFOF ¶ 38). Dr. Gould removed Rose's gallbladder approximately six weeks later, on June 2, 2008. (PFOF ¶ 39; CFOF ¶ 56; AFOF ¶ 47).

II. Relationship Between the Fond du Lac Clinic and Agnesian Healthcare

Rose was referred to the Fond du Lac Clinic for her surgical consultation with Dr. Cahee. The Fond du Lac Clinic is both the name of the clinic facility in which patients receive care and the name of the service corporation owned by physicians who provide medical services at the facility. The clinic building and the property on which it sits are owned by Agnesian and Agnesian directly employs certain staff, such as nurses and receptionists, to provide services there. (AFOF ¶¶ 5, 6; CFOF ¶¶ 10, 11). Agnesian provides health services to individuals incarcerated at Taycheedah, pursuant to an ongoing contractual agreement with the Wisconsin Department of Corrections under which Agnesian arranges health services for incarcerated individuals. (PFOF ¶ 41). Consequently, inmates at Taycheedah are often referred to the Fond du Lac Clinic and St. Agnes Hospital, another nearby facility run by Agnesian. (PFOF ¶ 42).

The Fond du Lac Clinic site and facilities are owned by Agnesian but the Fond du Lac Clinic, S.C. is a service corporation owned by its shareholder physicians. (AFOF ¶ 7; CFOF ¶ 13). These physicians, such as Dr. Cahee, provide services at Agnesian's facilities but are directly employed by the service corporation. (PFOF ¶ 11). The service corporation that is the Fond du Lac Clinic provides professional services at the clinic facility pursuant to a Professional Services Agreement with Agnesian. (CFOF ¶ 12). Though the service corporation provides the medical services, Agnesian staff schedules patients to be seen by the Clinic's physicians and Agnesian personnel run the Clinic's Business Department. (CFOF ¶¶ 15, 24). Agnesian handles all billing for medical services provided at the Clinic by collecting payments and setting the rates for physicians. (CFOF ¶ 16-18). Agnesian generates bills for services provided to patients by Clinic physicians and sends them to third-party payors. (CFOF ¶¶ 19-20). Agnesian then collects payments for the medical services and distributes a portion of the proceeds to the service corporation as compensation under their agreement. The Fond du Lac Clinic then compensates its employees based on provisions in the agreement. (CFOF ¶ 21). Though the Fond du Lac Clinic pays its own employees, Agnesian oversees the compensation by requiring the Clinic to submit information verifying that it is paying its physicians in compliance with the agreement. (CFOF ¶ 22).

III. Operation and Control of Agnesian

Agnesian is a not-for-profit, tax-exempt corporation organized under Wisconsin law that presents itself as an integrated healthcare system. (AFOF ¶¶ 19, 21; PFOF ¶¶ 45, 47). Agnesian is sponsored by the Congregation of the Sisters of Saint Agnes of Fond du Lac, Wisconsin, a Roman Catholic religious institute, and Agnesian's mission statement notes: "We are rooted in the healing ministry of the Catholic church as we continue the mission of our sponsor, the Congregation of Sisters of St. Agnes."...