Sandra Sunderland v. Bethesda Hospital, Inc. ( 2017 )


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  •              Case: 16-10980   Date Filed: 04/27/2017    Page: 1 of 26
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    Nos. 16-10980, 16-13327
    ________________________
    D.C. Docket No. 9:13-cv-80685-DTKH
    SANDRA SUNDERLAND,
    BODIL TVEDE,
    JAMES LIESE,
    SUSAN LIESE,
    CAROLANN DONOFRIO,
    JOHN DONOFRIO,
    JACQUELINE GLUCKMAN,
    BARBARA DRUMM,
    JOHN VIRGADAULA,
    THE FLORIDA ASSOCIATION OF THE DEAF, INC.,
    Plaintiffs - Appellants,
    versus
    BETHESDA HOSPITAL, INC.,
    d.b.a. Bethesda Memorial Hospital,
    d.b.a. Bethesda Hospital West,
    BETHESDA HEALTH, INC.,
    Defendants - Appellees.
    Case: 16-10980       Date Filed: 04/27/2017       Page: 2 of 26
    ________________________
    Appeals from the United States District Court
    for the Southern District of Florida
    ________________________
    (April 27, 2017)
    Before WILSON and BLACK, Circuit Judges, and RESTANI, ∗ Judge.
    WILSON, Circuit Judge:
    Nine deaf hospital patients and the Florida Association of the Deaf 1 appeal
    the district court’s dismissal at the summary judgment stage of their disability
    discrimination claims against Bethesda Hospital. The patients and the Association
    allege that Bethesda failed to provide the patients with the basic accommodation
    required for a deaf individual to equally access hospital services: an interpretive
    aid that allows the individual to communicate effectively with hospital staff. The
    patients seek compensatory damages under Section 504 of the Rehabilitation Act,
    and both the patients and the Association seek injunctive relief under Section 504
    and the Americans with Disabilities Act (ADA).
    After careful review of the parties’ briefs and the record, and having had the
    benefit of oral argument, we affirm in part and reverse in part. We reverse and
    remand the district court’s grant of summary judgment to Bethesda on Sandra
    ∗
    Honorable Jane A. Restani, Judge for the United States Court of International Trade,
    sitting by designation.
    1
    The Association is a membership organization which promotes the interests of hearing-
    impaired individuals in Florida.
    2
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    Sunderland’s, James Liese’s, Susan Liese’s, John Virgadaula’s, and Jacqueline
    Gluckman’s Section 504 claims for compensatory damages. We also reverse and
    remand the district court’s dismissal on standing grounds of Ms. Gluckman’s and
    the Association’s Section 504 and ADA claims for injunctive relief. We affirm the
    remainder of the district court’s findings.
    I. BACKGROUND 2
    In 2006, Bethesda entered a settlement agreement with the Department of
    Justice after a complaint was filed with the Department alleging discrimination
    against deaf patients. See Bethesda Mem’l Hosp., D.J. No. 202-18-178 (Settlement
    Agreement May 5, 2006), https://www.ada.gov/bethesda.htm. The agreement
    required Bethesda to take certain steps to ensure effective communication with
    deaf patients. See id. For several years after the agreement, Bethesda primarily
    relied on in-person interpreters to accommodate deaf patients. But in 2011 it
    began using a Video Remote Interpreting device (VRI) to communicate with deaf
    patients. The VRI allows patients to videoconference with an interpreter who is
    located remotely.
    Bethesda has a written policy for the VRI:
    For the purpose of rendering emergency health care, the
    Hospital provides . . . [a VRI] Computer on Wheels. . . .
    The [VRI] . . . is stored in the Nursing Supervisor’s
    2
    In this section, we construe in the light most favorable to the patients the facts that are
    relevant to their compensatory-damages claims. See McCullum v. Orlando Reg’l Healthcare
    Sys., Inc., 
    768 F.3d 1135
    , 1141 (11th Cir. 2014).
    3
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    office and will be brought to the area requesting the unit
    by the Nursing Supervisor. . . . In those circumstances
    where VRI does not accommodate patient need[s,] the
    nursing administrative supervisor and[/]or risk
    management will be contacted to assist with providing an
    alternative communication mode such as [an in-person
    interpreter].
    Bethesda’s nurses and Nursing Supervisors administer this policy, while
    Bethesda’s Vice President for Risk Management ensures compliance with the
    policy. A deaf patient’s nurse is responsible for determining whether to provide
    the patient the VRI or a less-substantive interpretive aid. If the nurse finds that the
    VRI is necessary, the nurse requests the VRI and the on-duty Nursing Supervisor
    transports the VRI to the patient’s room. Once the VRI is in the patient’s room,
    the nurse is responsible for assessing whether the VRI is accommodating the
    patient’s needs. To address deficiencies with the VRI, the nurse can take
    corrective measures, such as obtaining assistance from technical-support personnel
    or communicating through written materials. In most situations, only if a nurse
    finds that the VRI is not accommodating the patient will the patient be able to
    access an in-person interpreter. When a nurse finds that an in-person interpreter is
    needed, the Nursing Supervisor is tasked with seeking approval from a hospital
    administrator for the interpreter. Other than transporting the VRI upon a nurse’s
    request and seeking approval for an in-person interpreter, the Nursing Supervisor
    has limited involvement with the process for accommodating a deaf patient.
    4
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    Soon after Bethesda started using the VRI, various hospital personnel
    received reports of patient difficulties with the VRI. Dorothy Kerr, one of
    Bethesda’s Nursing Supervisors, and Gary Ritson, Bethesda’s Vice President for
    Risk Management, were informed of a few instances in which the VRI
    malfunctioned. Ritson also was informed that several patients refused to use the
    VRI and demanded an in-person interpreter. In response to this information,
    Ritson posted a sign in the hospital stating that patients who prefer an in-person
    interpreter rather than the VRI must pay for the interpreter. Finally, the
    Association met with Bethesda’s President to relay certain Association members’
    complaints about the VRI.
    The patients in this case, Sandra Sunderland, Barbara Drumm, James Liese,
    Susan Liese, John Virgadaula, Jacqueline Gluckman, Carolann Donofrio, John
    Donofrio, and Bodil Tvede, each visited Bethesda after Bethesda began using the
    VRI.
    A. Sandra Sunderland
    Ms. Sunderland, who is around 70 years old, had a heart attack in 2012 and
    spent two weeks at Bethesda. During the stay, Ms. Sunderland had a cardiac
    catheterization procedure. Ms. Sunderland asked a nurse for an in-person
    interpreter prior to the procedure, but the nurse denied the request. And the nurse
    did not provide Ms. Sunderland with the VRI. Consequently, the doctor who
    5
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    performed the procedure used neither the VRI nor an in-person interpreter when
    communicating with Ms. Sunderland prior to the procedure. The doctor relied
    solely on gesturing. Ms. Sunderland in her deposition reported that she was
    confused about the procedure and was “scared to death” in the moments leading up
    to it: “[Hospital staff] didn’t tell me anything. . . . [N]othing was explained. I was
    just laying there scared to death and . . . I was like, ‘Huh, what’s going on here?
    Where is my interpreter?’”
    While recovering in the hospital from the procedure, Ms. Sunderland
    developed a hematoma and was sent to the intensive care unit. She was placed on
    a ventilator and was sedated for a few days. When she woke up, a nurse provided
    her information about her medication and its side effects, but her comprehension of
    the information was “questionable.”
    On the fifth day of her admission, Ms. Sunderland again asked a nurse for an
    in-person interpreter. The nurse denied the request but afforded Ms. Sunderland
    access to the VRI. For the remainder of Ms. Sunderland’s hospital stay, the VRI
    was used intermittently. The VRI, however, frequently froze and was blurry. Ms.
    Sunderland’s son complained to a nurse about these issues and requested an in-
    person interpreter. No in-person interpreter was provided.
    Ms. Sunderland lives near Bethesda. She suffers from several heart
    conditions and has a depressive disorder. A medical expert testified in a deposition
    6
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    that Ms. Sunderland, due to her heart conditions, “eventually will go back to the
    hospital,” but “[t]he timing of that is unpredictable.”
    B. Barbara Drumm
    Ms. Drumm is around 80 years old and visited Bethesda once in 2012 and
    once in 2013. In 2012, she was admitted to Bethesda for multiple days for back
    pain. During the first few days of her stay, hospital staff used pen and paper to
    communicate with her and the final day, used the VRI. Ms. Drumm complained
    during her stay about the limited access she had to hospital staff, but she did not
    otherwise complain about communication difficulties. Ms. Drumm’s 2013 visit to
    Bethesda was for chest pain. She communicated with pen and paper and the VRI
    during the visit.
    Ms. Drumm lives near Bethesda and is a member of the Association. She
    intends to return to Bethesda at some point, but she has no procedures scheduled
    and her health is stable.
    C. James and Susan Liese
    James and Susan Liese are married and are both in their 80s. Mr. Liese
    visited Bethesda three times in 2011, and Mrs. Liese accompanied him on all three
    occasions.3
    3
    Mrs. Liese was not a patient at Bethesda. Her claims are based on her visits to Bethesda
    as Mr. Liese’s “companion[].” See 
    28 C.F.R. § 36.303
    (c).
    7
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    Mr. Liese first visited the hospital for an appointment in preparation for a
    hernia surgery. The Lieses asked a nurse for an in-person interpreter, but the nurse
    ignored the request and communicated with the Lieses by pen and paper and by
    trying to read their lips.
    The Lieses returned to Bethesda a few days later for Mr. Liese’s hernia
    surgery. Mr. Liese requested an in-person interpreter, but his nurses opted to use
    the VRI. The nurses, however, used the VRI only intermittently, and when they
    did use the VRI, it frequently malfunctioned. The VRI worked at times but was
    often blurry or failed to activate. Also, Mr. Liese has macular degeneration, so he
    could not see the VRI screen clearly, and on at least one occasion, he and Mrs.
    Liese were unable to comprehend the remotely located interpreter’s signing. Mr.
    Liese, with the assistance of Mrs. Liese, e-mailed a representative from the
    Association shortly after his surgery explaining some of the communication
    difficulties he and his wife faced at Bethesda:
    I requested [a] live interpreter . . . on my arrival[, but] I
    was told they cannot find [a] live interpreter prior to the
    surgery. The interpreter on the VRI [w]as not very
    good[.] . . . [M]y wife . . . [could] not understand what
    [was] going on and the VRI interpreter did no[t] sign
    then [my nurse’s] voice stop[ped] and the VRI
    [interpreter started] sign[ing,] which [was] not very clear.
    Then my wife told the VRI interpreter [that the
    interpreter] sh[ould] sign same time [as] the [n]urse.
    [The] VRI inter[]preter said she ha[d a] problem . . .
    get[ting] the [nurse’s] voice in her earmicrophone . . . . It
    [was also] hard for me to see . . . the VRI.
    8
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    The Lieses returned to Bethesda in late 2011 for Mr. Liese to receive
    treatment for a blood clot. Mr. Liese asked his nurses for an in-person interpreter,
    but the nurses denied the request and used the VRI to communicate with the
    Lieses. The VRI was blurry and repeatedly froze, and while the nurses were
    preparing Mr. Liese for discharge, one nurse struggled to operate the VRI and
    commented on the VRI’s malfunctioning.
    The Lieses live near Bethesda and are members of the Association. Mr.
    Liese had a second hernia surgery in 2013 and suffers from a number of medical
    conditions. Mrs. Liese also suffers from several conditions. The Lieses’
    conditions are stable.
    D. John Virgadaula
    Mr. Virgadaula is in his early 70s and visited Bethesda once in 2014 for a
    shoulder surgery. The VRI was used to facilitate communication with Mr.
    Virgadaula during his pre-operation meetings with hospital staff, including his
    anesthesiology evaluation and his pre-operation interview. Mr. Virgadaula’s
    nurses, however, had difficulty setting up the VRI, and the VRI’s remotely located
    interpreter intermittently became non-visible, preventing Mr. Virgadaula from
    receiving the full information communicated by his doctors and nurses. These
    difficulties were evident to the nurses, who repeatedly attempted to correct the
    visibility issues. Eventually, some hospital staff abandoned the VRI and resorted
    9
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    to simply gesturing to Mr. Virgadaula. Mr. Virgadaula’s doctor, for example,
    resorted to gesturing in the moments leading up to Mr. Virgadaula’s surgery.
    Mr. Virgadaula in his deposition reported:
    While they were [trying to fix the] VRI . . . the doctor
    was getting frustrated, . . . and then the doctor says, You
    know what—he looked at me and kind of gestured—
    Okay is it the right arm, right shoulder or the left
    shoulder? So he’s gesturing to me, asking which
    shoulder it is. . . . And [then] he’s gesturing this to me,
    sleep, you, and then shot in my shoulder.
    Mr. Virgadaula lives near Bethesda and is a member of the Association. He
    has a number of medical conditions, including hypertensive heart disease and
    cataracts. The conditions are stable.
    E. Jacqueline Gluckman
    Ms. Gluckman is in her late 70s. She visited Bethesda twice in 2011 for a
    biopsy procedure and many times thereafter for physical therapy and
    mammograms. Ms. Gluckman first visited Bethesda on October 7, 2011, for her
    biopsy procedure. Nurses attempted to communicate with her using the VRI, but
    the VRI did not work. Ms. Gluckman therefore wrote a note to the nurses
    requesting an in-person interpreter. The nurses declined the request, and because
    the nurses were unable to communicate with Ms. Gluckman, her procedure was
    rescheduled to October 11, 2011. When Ms. Gluckman returned on October 11,
    her nurses used the VRI, but the VRI was blurry and “the picture was no good.”
    10
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    These problems caused confusion between Ms. Gluckman and hospital staff.
    According to deposition testimony from Ms. Gluckman:
    [W]hen the doctor came in [to discuss the biopsy], he
    was all angry [about the VRI issues]. . . . I was trying to
    catch what he was saying on his lips. And [the nurses]
    were, you know, writing. And then they just said, like,
    Well just go ahead and do it. . . . I should have just
    walked out. I felt like I was just like a dog—just dog,
    like, they were just leading on, but they weren’t
    explaining anything to me. And then they had put the
    needle in my arm and it started bleeding.
    After her October 11 visit, Ms. Gluckman returned to Bethesda more than sixteen
    times for physical therapy and routine mammograms.
    Ms. Gluckman lives near Bethesda and is a member of the Association. She
    has several medical conditions, including a sinus syndrome, coronary artery
    disease, arthritis, and hypertension. Although those conditions are generally
    stable, Ms. Gluckman has recently experienced neck and cervical pain.
    F. Carolann Donofrio
    Mrs. Donofrio is around 80 years old and visited Bethesda twice in 2013 for
    a heart condition. When Mrs. Donofrio first visited Bethesda, nurses attempted to
    use the VRI to communicate with her, but they were unable to connect the VRI to a
    remotely located interpreter. Thereafter, the hospital obtained an in-person
    interpreter for Mrs. Donofrio. When Mrs. Donofrio returned to Bethesda later in
    2013, nurses attempted to use the VRI, but the VRI was blurry, requiring the
    11
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    nurses to repeatedly restart it. The hospital again arranged for an in-person
    interpreter.
    Mrs. Donofrio lives near Bethesda. She suffers from a number of heart
    conditions but, according to her physician and cardiologist, is in no “acute stress.”
    G. John Donofrio
    John Donofrio is in his mid-70s and is married to Carolann Donofrio. In
    2013, he suffered from food poisoning and went to Bethesda for treatment. Mrs.
    Donofrio accompanied him. Mr. Donofrio requested by way of a written note that
    hospital staff afford him either an in-person interpreter or the VRI, but staff
    provided neither. The Donofrios instead communicated with staff by pen and
    paper.
    Mr. Donofrio currently lives near Bethesda, and he has diabetes and a few
    heart conditions. Those conditions are stable.
    H. Bodil Tvede
    Ms. Tvede is in her mid-80s and was admitted to Bethesda in 2011 after a
    stroke. A nurse used the VRI to communicate with her at the beginning of her
    stay. At one point during that encounter, the VRI picture zoomed in on the
    remotely located interpreter’s face, preventing Ms. Tvede from seeing the hands of
    the interpreter. Hospital staff relied on pen and paper, as well as “lip reading,” to
    communicate with Ms. Tvede for the rest of her stay.
    12
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    Ms. Tvede is a member of the Association, and she currently lives in Ohio.
    II. PROCEDURAL HISTORY
    Ms. Sunderland, Ms. Drumm, the Lieses, Mr. Virgadaula, Ms. Gluckman,
    Mrs. Donofrio, Mr. Donofrio, Ms. Tvede, and the Association filed a joint
    complaint in district court raising disability discrimination claims under Section
    504 and the ADA. 4 The patients requested compensatory damages under Section
    504, asserting that, during their individual encounters with Bethesda, Bethesda was
    deliberately indifferent to their Section 504 rights. And the Association and the
    patients asked for injunctive relief under Section 504 and the ADA. 5 The
    Association and the patients, alleging that various Bethesda policies and practices
    are discriminatory, requested an order requiring Bethesda to correct the policies
    and practices.
    The district court severed the patients’ claims into three trial groups, with the
    Association’s claims constituting a separate, fourth group. The first patient group
    included the claims of Ms. Sunderland, Ms. Drumm, and Mrs. Donofrio; the
    second group included the claims of the Lieses and Mr. Virgadaula;6 and the third
    group included the claims of Ms. Gluckman, Mr. Donofrio, and Ms. Tvede.
    4
    A tenth patient, Julia Feltzin, also raised claims in the complaint. Ms. Feltzin, however,
    is not a party to this appeal.
    5
    The Association, relying on “associational standing,” requested injunctive relief on
    behalf of its members. See Hunt v. Wash. State Apple Advert. Comm’n, 
    432 U.S. 333
    , 343,
    
    97 S. Ct. 2434
    , 2441 (1977) (internal quotation marks omitted).
    6
    Ms. Feltzin’s claims were also included in this second group.
    13
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    Bethesda filed motions for summary judgment on all of the patients’ claims,
    as well as on the Association’s claims. The district court dismissed the patients’
    claims in three separate orders and, in a fourth order, dismissed the Association’s
    claims.
    In dismissing the patients’ claims, the district court found that most of the
    patients established a triable issue as to whether Bethesda violated their Section
    504 rights by denying them effective communication. However, the court
    determined that (1) no patient can obtain compensatory damages under Section 504
    because none offered sufficient evidence of deliberate indifference and (2) no
    patient has standing to seek injunctive relief under Section 504 and the ADA
    because none showed a real and immediate threat of future injury.
    The district court dismissed the Association’s claims for Section 504 and
    ADA injunctive relief because the Association relied on the same future-injury
    evidence as the patients.
    III. STANDARD OF REVIEW
    We review de novo the district court’s grant of summary judgment on the
    patients’ claims for compensatory damages, “viewing all facts in the light most
    favorable to the [patients] and drawing all reasonable inferences in [their] favor.”
    See McCullum, 768 F.3d at 1141. Summary judgment may be granted only if
    “there is no genuine issue as to any material fact and the moving party is entitled to
    14
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    a judgment as a matter of law.” Id. A genuine issue of material fact exists when
    “the evidence is such that a reasonable jury could return a verdict for the
    nonmoving party.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248, 
    106 S. Ct. 2505
    , 2510 (1986).
    We review the district court’s conclusion that the patients and the
    Association lack standing to seek injunctive relief “anew, without deference to
    the . . . court’s legal conclusions.” Am. Civil Liberties Union of Fla., Inc., v.
    Miami-Dade Cty. Sch. Bd., 
    557 F.3d 1177
    , 1190 (11th Cir. 2009).
    IV. DISCUSSION
    This appeal presents fact-intensive questions: (1) whether any of the
    individual patients established a triable issue of deliberate indifference and
    (2) whether any of the individual patients (or the Association) established standing
    to seek injunctive relief.7 Based on our review of the evidence related to each
    patient, we hold that some of the patients (Ms. Sunderland, the Lieses, Mr.
    Virgadaula, and Ms. Gluckman) have established a triable issue of deliberate
    indifference and that one of the patients (Ms. Gluckman) and the Association have
    established standing.
    A. Deliberate Indifference
    7
    In addition to challenging the district court’s dismissal of their claims, the patients and
    the Association argue that the court abused its discretion in severing the patients’ claims into
    three trial groups. See Weatherly v. Ala. State Univ., 
    728 F.3d 1263
    , 1269 (11th Cir. 2013) (“We
    review a district court’s decision . . . to sever for abuse of discretion.”). We conclude that the
    district court acted within its discretion in severing the claims.
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    Under Section 504, Bethesda must provide to deaf patients and visitors
    interpretive aids that are “necessary to ensure effective communication.” See Liese
    v. Indian River Cty. Hosp. Dist., 
    701 F.3d 334
    , 341, 351 (11th Cir. 2012);
    
    28 C.F.R. § 36.303
    (c)(1) (“A public accommodation shall furnish appropriate
    auxiliary aids and services where necessary to ensure effective communication
    with individuals with disabilities.”). But to obtain compensatory damages, a deaf
    patient or visitor must show more than a denial of effective communication—she
    must show deliberate indifference. Liese, 701 F.3d at 344–45, 348.
    A defendant organization is deliberately indifferent under Section 504 if an
    official of the organization knows that harm to an individual’s Section 504 rights is
    substantially likely and the official fails to act on that likelihood. See id. at 344,
    349. “[A]n official is someone who enjoys substantial supervisory authority within
    an organization’s chain of command so that, when dealing with the complainant,
    the official had complete discretion at a key decision point in the administrative
    process.” Id. at 350 (internal quotation marks omitted). A hospital employee has
    “complete discretion at a key decision point” in the hospital’s accommodation
    process if she has authority to decide whether a patient can access an
    accommodation and the decision is generally not reviewed by a higher authority,
    even though the decision is “technically subject to review.” See id. Whether an
    employee has such authority is “necessarily a fact-based inquiry.” See Doe v. Sch.
    16
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    Bd. of Broward Cty., 
    604 F.3d 1248
    , 1256 (11th Cir. 2010) (internal quotation
    marks omitted).
    Taking the evidence in the light most favorable to the patients, a jury could
    find that Bethesda nurses are officials and that the nurses were deliberately
    indifferent to the Section 504 rights of Ms. Sunderland, the Lieses, Mr. Virgadaula,
    and Ms. Gluckman. However, the evidence is insufficient to support a finding that
    the nurses were deliberately indifferent to the rights of Ms. Drumm, Mrs.
    Donofrio, Mr. Donofrio, or Ms. Tvede.
    1. Under Liese, a jury could conclude that Bethesda nurses are officials.
    In Liese, two deaf individuals alleged that a hospital violated their
    Section 504 rights to effective communication. We found that a triable issue
    existed as to whether doctors at the hospital were officials. See Liese, 701 F.3d at
    350–51. A jury could have found that the doctors were officials, we held, because
    the record suggested that the doctors had “supervisory authority” over hospital
    patients’ access to interpretive aids. See id. at 350. That is to say, the record
    supported a finding that the doctors had “discretion to decide whether or not to
    provide [a patient] with an interpretive aid.” See id. “[N]o evidence . . .
    suggest[ed] that the doctors’ decisions” about whether a patient should receive an
    interpretive aid “were subject to reversal.” Id. And the hospital’s interpretive-aid
    policy indicated that the doctors had broad discretion over patient access to
    17
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    interpretive aids. Id. The policy “offer[ed] no guidance or recommendation as to
    when doctors or nurses should use [interpretive] aids; rather, it afford[ed] the
    [hospital] staff complete discretion in [such] matters.” Id.
    The evidence related to Bethesda nurses’ authority over interpretive aids is
    similar to the evidence related to the Liese doctors’ authority. When the evidence
    is viewed in the light most favorable to the patients, Bethesda nurses can be seen as
    having “supervisory authority” over a patient’s access to interpretive aids. See id.
    The record indicates that nurses decide whether to provide the VRI or other, less-
    substantive interpretive aids to a patient; nurses have authority to take corrective
    measures when problems with the VRI arise; and in most situations, a patient can
    access an in-person interpreter only if her nurse decides that the VRI and other aids
    are not appropriate. Testimony from the patients suggests that (1) nurses manage
    access to the VRI, as well as to less-substantive interpretive aids, and (2) nurses
    have authority to reject unilaterally requests for in-person interpreters. And the
    remainder of the record lends support to such testimony; the record supports a
    finding that nurses’ decisions about when to provide and when to abandon the VRI
    are generally not “subject to reversal.” See id. Indeed, like the policy in Liese,
    Bethesda’s VRI policy provides hospital staff no guidance on when the VRI or
    18
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    another accommodation is appropriate. Nurses are afforded “complete discretion”
    in implementing the policy. See id.8
    2. A jury could find that Bethesda nurses were deliberately indifferent to
    Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s
    Section 504 rights.
    A jury could find that Ms. Sunderland, the Lieses, Mr. Virgadaula, and
    Ms. Gluckman were denied effective communication; that nurses were aware of
    the denials; and that the nurses refused to correct the denials. See id. at 351
    (holding that a triable issue of deliberate indifference existed because a hospital
    doctor “knew that [the hospital] failed to provide [the plaintiff] with appropriate
    auxiliary aids necessary to ensure effective communication” but decided not to
    correct the failure). The evidence indicates that the nurses, knowing the patients
    required an interpretive aid, relied on the VRI to facilitate communication with the
    patients; were put on notice that the VRI was not accommodating the patients; 9 and
    chose to persist in using the VRI without correcting its deficiencies.10 See Gebser
    v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 290, 
    118 S. Ct. 1989
    , 1999 (1998)
    (“[W]e hold that a damages remedy [is not available] . . . unless an official . . . has
    8
    Our determination that a jury could find that Bethesda nurses are officials is a fact-
    intensive determination. We offer no opinion on whether nurses in other healthcare facilities can
    be considered officials.
    9
    In reaching this conclusion, we do not find that a triable issue of ineffective
    communication exists anytime a hospital uses a VRI. Rather, we conclude only that a jury could
    find that the VRI, as administered to the patients here, was ineffective.
    10
    In fact, it appears that the nurses even abandoned the VRI altogether at times without
    providing an alternative interpretive aid.
    19
    Case: 16-10980    Date Filed: 04/27/2017    Page: 20 of 26
    actual knowledge of discrimination . . . and fails adequately to respond.”). In other
    words, the evidence supports a finding that the nurses disregarded a substantial risk
    that the patients were being denied effective communication. See Liese, 701 F.3d
    at 344, 351.
    Ms. Sunderland requested an in-person interpreter at the beginning of her
    stay, placing her nurses on notice that she required an interpretive aid. Yet the
    nurses denied the request and provided neither the VRI nor any other interpretive
    aid. Consequently, prior to an invasive procedure, Ms. Sunderland was forced to
    communicate with her doctor through gesturing. And although the nurses decided
    to provide Ms. Sunderland the VRI after the procedure, the VRI was blurry and
    frequently froze, infringing Ms. Sunderland’s ability to communicate through the
    VRI. See 
    28 C.F.R. § 36.303
    (c)(1)(ii) (“In order to be effective, auxiliary aids and
    services must be provided in accessible formats . . . .”); 
    id.
     § 36.303(f) (“A public
    accommodation that chooses to provide qualified interpreters via VRI service shall
    ensure that it provides . . . video and audio over a . . . connection that delivers high-
    quality video images that do not produce lags, choppy, blurry, or grainy images, or
    irregular pauses in communication . . . .”). Ms. Sunderland’s son complained to
    the nurses about these issues and requested an in-person interpreter. “A reasonable
    juror could well find from these facts that [the nurses] knew that” the VRI was not
    allowing Ms. Sunderland “to understand the” medical services she was receiving.
    20
    Case: 16-10980       Date Filed: 04/27/2017      Page: 21 of 26
    See Liese, 701 F.3d at 351. Even so, the nurses denied Ms. Sunderland and her
    son’s requests for an in-person interpreter and otherwise refused to correct the
    VRI’s deficiencies. 11 See id. (“[A hospital official’s] apparent knowledge that [a
    patient] required an additional interpretive aid to effectively communicate with
    him and his deliberate refusal to provide that aid satisfies the deliberate
    indifference standard.”).
    The Lieses requested an in-person interpreter during each of their visits to
    Bethesda, placing Mr. Liese’s nurses on notice that they required an interpretive
    aid. Mr. Liese’s nurses denied the requests and relied on the VRI to facilitate
    communication. In their administration of the VRI, the nurses arguably
    demonstrated disregard for the Lieses’ communication needs. The nurses failed to
    use the VRI consistently despite their knowledge that the Lieses required an
    interpretive aid. And when the nurses used the VRI, it often froze or was blurry—
    deficiencies that the nurses recognized and that obviously thwarted the VRI’s
    serving as an “appropriate” interpretive aid. See 
    28 C.F.R. § 36.303
    (c), (f).
    Further, in the presence of one of the nurses, the Lieses indicated that they were
    struggling to follow the remotely located interpreter’s signing. The nurses,
    however, chose to continue using the VRI, making no effort to seek an effective
    11
    Beyond seeking an in-person interpreter, a number of strategies for correcting the
    VRI’s deficiencies appear to have been available to the nurses. The nurses, for example, could
    have contacted Bethesda’s technical-support personnel to fix the VRI or could have taken the
    steps necessary to provide effective written communications.
    21
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    alternative such as the interpretive aid requested by the Lieses—an in-person
    interpreter. See Liese, 701 F.3d at 351.
    Mr. Virgadaula’s nurses relied on the VRI to facilitate communications, but
    the remotely located interpreter repeatedly became non-visible, depriving
    Mr. Virgadaula of substantial information that hospital staff were attempting to
    communicate. The nurses recognized this deficiency but continued to rely on the
    VRI. See Duvall v. Cty. of Kitsap, 
    260 F.3d 1124
    , 1140 (9th Cir. 2001) (finding a
    jury issue of deliberate indifference because, among other things, a public entity
    was on notice that a particular accommodation was “inadequate” but the entity
    persisted in relying on the accommodation); cf. Gebser, 
    524 U.S. at 290
    , 
    118 S. Ct. at 1999
    . That decision, unsurprisingly, resulted in communication breakdowns
    between Mr. Virgadaula and his doctor just prior to an invasive procedure.
    Ms. Gluckman had a similar experience at Bethesda as Mr. Virgadaula. Her
    nurses relied on the VRI, but the picture on the VRI screen was blurry and not
    cognizable, thereby thwarting the effectiveness of the VRI. See 
    28 C.F.R. § 36.303
    (c), (f). The nurses and Ms. Gluckman’s doctor all recognized this
    deficiency; in fact, the doctor expressed frustration about the VRI’s
    ineffectiveness. But the nurses chose to continue using the VRI without correcting
    the deficiency. See Duvall, 
    260 F.3d at 1140
    ; cf. Gebser, 
    524 U.S. at 290
    ,
    
    118 S. Ct. at 1999
    .
    22
    Case: 16-10980       Date Filed: 04/27/2017       Page: 23 of 26
    3. The evidence set forth by Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and
    Ms. Tvede is insufficient to support a finding of deliberate indifference.
    Although Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and Ms. Tvede may
    have been denied effective communication, a jury could not find that a nurse—or
    any other Bethesda employee—knew such a denial was substantially likely and
    failed to act.12 First, Ms. Drumm, Mr. Donofrio, and Ms. Tvede offered no
    evidence from which a jury could find that a nurse knew their right to effective
    communication was likely being violated. Ms. Drumm and Ms. Tvede were
    provided the VRI, but no evidence indicates that during the administration of the
    VRI there were deficiencies of which their nurses had notice. Mr. Donofrio was
    accommodated with pen and paper rather than the VRI or an in-person interpreter,
    but based on the record, his nurses had no reason to believe that the notes were an
    ineffective accommodation. Second, Mrs. Donofrio’s claim of deliberate
    indifference is belied by Bethesda’s providing her in-person interpreters when the
    VRI was ineffective.
    B. Standing to Seek Injunctive Relief
    12
    The patients claim that Bethesda’s President, a Nursing Supervisor (Kerr), and the Vice
    President of Risk Management (Ritson) acted with deliberate indifference because they were
    notified that Bethesda’s approach to the VRI was causing communication failures but failed to
    act. However, the evidence at most shows that the President, Kerr, and Ritson were aware of a
    few instances where the VRI malfunctioned or was otherwise ineffective. A mere awareness that
    the VRI was sometimes ineffective does not amount to knowledge that Bethesda’s approach to
    the VRI was substantially likely to lead to violations of patients’ Section 504 rights.
    23
    Case: 16-10980       Date Filed: 04/27/2017      Page: 24 of 26
    The patients’ “standing to seek the injuncti[ve relief] requested depends on
    whether [they are] likely to suffer future injury.” 13 See Houston v. Marod
    Supermarkets, Inc., 
    733 F.3d 1323
    , 1334 (11th Cir. 2013) (internal quotation marks
    omitted). A “sufficient likelihood” must exist that the patients “will be affected by
    [Bethesda’s] allegedly unlawful conduct in the future.” See id. at 1328 (internal
    quotation marks omitted). This requires the patients to establish “a real and
    immediate—as opposed to a merely conjectural or hypothetical—threat of future
    injury.” See id. at 1334 (internal quotation marks omitted). To establish such a
    threat, each patient must show that (1) there is a “real and immediate” likelihood
    that she will return to Bethesda and (2) she “will likely experience a denial of
    benefits or discrimination” upon her return. See McCullum, 768 F.3d at 1145–46.
    The district court erred in finding that Ms. Gluckman lacks standing, but the
    court did not err in determining that the remaining eight patients lack standing.
    Ms. Gluckman has shown a real and immediate likelihood that she will
    return to Bethesda, and she has shown that upon her return she will likely
    experience discrimination. First, since 2011, Ms. Gluckman has visited Bethesda
    more than sixteen times, and some of the visits were for routine screenings—
    annual mammograms. Because Ms. Gluckman has a family history of breast
    13
    Given the nature of the Association’s claims and the record before us, the
    Association’s standing turns on the standing of the patients who are Association members. See
    Hunt, 
    432 U.S. at
    342–43, 
    97 S. Ct. at 2441
    .
    24
    Case: 16-10980        Date Filed: 04/27/2017        Page: 25 of 26
    cancer, she regularly undergoes mammograms. Her Bethesda records show that
    she visited Bethesda in 2013, 2014, and 2015 for mammograms. Given the
    frequency of Ms. Gluckman’s visits and the routine nature of her screenings, the
    likelihood that she will return to Bethesda in the immediate future is not merely
    conjectural. Second, the evidence indicates that, on more than one occasion,
    Bethesda failed to accommodate Ms. Gluckman, and no evidence suggests that
    Bethesda has taken steps to prevent such a failure in the future. See Houston, 733
    F.3d at 1336 (“[A] plaintiff’s exposure to illegal conduct in the past is . . . evidence
    bearing on whether there is a real and immediate threat of repeated injury.”
    (internal quotation marks and citation omitted)). 14
    The remaining eight patients, however, have not established standing
    because they have not shown a real and immediate likelihood that they will return
    to Bethesda. The eight patients argue that, since they have medical conditions that
    could at any time require them to visit a hospital, they have demonstrated a real
    and immediate likelihood of returning to Bethesda. But the evidence shows that
    the patients’ conditions are stable. See McCullum, 768 F.3d at 1146 (holding that a
    plaintiff who had surgery at a hospital did not show a real and immediate threat of
    14
    Because Ms. Gluckman, a member of the Association, has standing, the Association
    also has standing to pursue injunctive relief. The Association has satisfied the requirements for
    associational standing. At least one of the Association’s members, Ms. Gluckman, has standing
    to “sue in [her] own right”; the interests that the Association “seeks to protect are germane to
    [its] purpose”; and “neither the claim asserted nor the relief requested requires the participation
    of [the Association’s] individual members.” See Hunt, 
    432 U.S. at 343
    , 
    97 S. Ct. at 2441
    .
    25
    Case: 16-10980    Date Filed: 04/27/2017    Page: 26 of 26
    returning to the hospital because the evidence demonstrated that he could control
    his symptoms thereafter with medication). Although the patients might some day
    return to Bethesda for treatment, the evidence does not establish a real and
    immediate likelihood that they will do so. See Houston, 733 F.3d at 1338
    (“‘[S]ome day’ intentions—without any description of concrete plans, or indeed
    even any specification of when the some day will be—do not support a finding of
    [standing].”).
    V. CONCLUSION
    We reverse the district court’s grant of summary judgment to Bethesda on
    Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s Section 504
    claims for compensatory damages. We also reverse the district court’s dismissal
    on standing grounds of Ms. Gluckman’s and the Association’s Section 504 and
    ADA claims for injunctive relief. We remand each for further proceedings
    consistent with this opinion. We affirm the remainder of the district court’s
    findings.
    AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
    26