Susan Liese v. Indian River County Hospital District , 701 F.3d 334 ( 2012 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15968
________________________
D.C. Docket No. 2:09-cv-14388-DLG
SUSAN LIESE,
JAMES LIESE,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
versus
INDIAN RIVER COUNTY HOSPITAL DISTRICT,
INDIAN RIVER MEMORIAL HOSPITAL, INC.,
d.b.a. Indian River Medical Center,
JOSE ORTEGA, M.D.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 13, 2012)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
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MARCUS, Circuit Judge:
In this appeal, Susan and James Liese, the plaintiffs, challenge the district
court’s order granting summary judgment in favor of the defendant, Indian River
Memorial Hospital, Inc. (“IRMH” or the “Hospital”). The Lieses, who both suffer
from severe hearing impairment, brought this suit against IRMH under § 504 of
the Rehabilitation Act of 1973 (the “RA” or “Rehabilitation Act”), 29 U.S.C. §
794, and Florida state law alleging a failure to communicate effectively when
Susan Liese sought treatment at the Hospital’s emergency room in November
2007. The Lieses say that the failure of the Hospital and its medical personnel to
respond to their repeated requests for a sign-language interpreter states a valid
claim for compensatory damages under the Rehabilitation Act, and a basis for
recovery by Susan Liese under Florida law because of the Hospital’s negligent
infliction of emotional distress.
This appeal raises two central legal questions: whether the defendant’s
“deliberate indifference,” if proven, is sufficient to establish intentional
discrimination under § 504 of the RA; and whether the actions of medical
personnel, including doctors and nurses employed by IRMH and involved in
treating the plaintiffs, can be attributed to the Hospital.
After thorough review and taking the facts in a light most favorable to the
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non-moving parties, we answer the first question in the affirmative. As for the
second question, we hold that the actions of the Hospital’s doctors may be
attributed to the Hospital for purposes of establishing liability under the
Rehabilitation Act. The Lieses have alleged sufficient facts to withstand summary
judgment on their claim for compensatory damages. Moreover, the record
evidence, when taken in a light most favorable to the Lieses, would allow a
reasonable jury to find by a preponderance of the evidence that IRMH doctors,
who were clothed with complete discretion in deciding whether to provide
necessary communicative aids to Susan Liese, were deliberately indifferent to her
rights under the Rehabilitation Act. Accordingly, we reverse the grant of summary
judgment to the Hospital on the Lieses’ Rehabilitation Act claim and remand for
further proceedings consistent with this opinion. However, the district court
properly entered summary judgment for the Hospital on Susan Liese’s state law
claim for negligent infliction of emotional distress.
I.
Because we are reviewing the district court’s grant of summary judgment to
the defendant, we view the facts and draw all reasonable inferences in a light most
favorable to the plaintiffs. See Gentry v. Harborage Cottages-Stuart, LLLP, 654
F.3d 1247, 1255 (11th Cir. 2011).
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A.
The essential facts, taken in that light, are these: IRMH leases and operates
a hospital in Vero Beach, Florida, that receives federal financial assistance. IRMH
maintains a policy entitled “Communication Barriers” that describes itself as “a
plan for effectively communicating in the language needed by the patient as well
as assistance for the hearing impaired.” The Hospital’s policy includes several
provisions relevant to this case. Three different mechanisms for communicating
with individuals with communication disabilities are included within the plan and
are found under the heading “Interpreter Availability”: interpreter lists, an AT&T
Language Line, and a video-interpreter service called “My Accessible Real-Time
Trusted Interpreter” (“MARTTI”). The interpreter lists section observes that
“Interpreter Lists (for foreign languages and sign language) are available on the
Intranet.” It also provides that “clinical interpreters may be used when clinical
interpretations are necessary,” while “non-clinical interpreters are used only for
demographic information, billing information, etc.” The “AT&T Language Line”
is an audio-based means of interpretation for speakers of foreign languages that is
available at all times by calling the Hospital operator and requesting assistance.
Finally, MARTTI -- a videoconferencing system that provides interpreters for
speakers of foreign languages and hearing-impaired individuals who need to use
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sign language -- is also available at any time and is kept in a storage room in the
emergency room of the Hospital. Significantly, the policy does not give any
guidance or recommendations as to when Hospital staff should use these
communicative aids. Rather, medical personnel have complete discretion in this
matter.
As counsel for IRMH conceded at oral argument, the Hospital’s medical
staff -- including doctors and nurses -- had the power to order that any of these
communication mechanisms be provided to a hearing-impaired patient. One nurse
testified that she had used MARTTI with a patient after a psychiatrist had directly
ordered the use of MARTTI. Annette Barton-Riley, who served as director of risk
management and as privacy and compliance officer at the Hospital between 2002
and 2008, testified that a patient would generally request an interpreter through his
“care provider,” a term that Barton-Riley defined as “a nurse.” She added that, if a
nurse refused to provide an interpreter, a patient could ask for a supervising nurse
to review that decision. Nevertheless, she stressed that a nurse had the authority to
order an interpreter for a patient and that it was “up to the staff to assess what the
patient’s needs are and make a determination as to what would meet those needs.”
Although the “Communication Barriers” policy itself says that accessing MARTTI
requires calling security to arrange a delivery of the machine, two IRMH nurses
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said in their depositions that they could also go to the emergency room and
retrieve the equipment themselves.
In an earlier lawsuit against the Hospital in 2005, Susan Fisher, a hearing-
impaired individual, sued IRMH alleging that IRMH had failed to provide
effective communication to deaf individuals. Fisher and IRMH eventually settled
the claim. The agreement provided for a monetary recovery by Fisher, training by
IRMH “on treatment of the hearing impaired,” and the purchase of
videoconferencing equipment by IRMH within six months of the settlement. The
agreement also required IRMH to inform hearing-impaired patients of available
services and maintain a list of qualified interpreters in the area.
In March 2007, IRMH’s education department conducted a training session
on the use of the MARTTI machine, which was attended by more than eighty
Hospital employees. A nurse who attended this training recalled it lasting
approximately ten minutes and that it gave only instructions on how to get
MARTTI and a demonstration on how to use the machine. The nurses deposed in
this case who treated Susan Liese expressed varying levels of familiarity with
IRMH’s “Communication Barriers” policy.1 Two nurses who were specifically
1
One nurse had no knowledge of whether IRMH had any policy regarding the deaf or
hearing impaired, while another did not recall if there was such a policy. A third nurse, however,
knew all three means of communication in the “Communication Barriers” policy.
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questioned about communicating with the hearing impaired offered various means
of communication: speaking louder; lipreading; the use of written messages or
charts; and the use of sign language, if necessary, through an interpreter.
B.
It is against this backdrop that the plaintiffs entered the Hospital’s
emergency room in November 2007. Susan Liese (“Liese”) is sixty-seven years
old and suffers from extensive hearing loss. Due to a childhood illness, she is deaf
in her right ear and has severe hearing loss in her left ear. Her husband, James
Liese, is seventy-eight years old and deaf. They communicate with each other
primarily in sign language. Susan Liese is fluent in American Sign Language
(“ASL”), while her husband uses a combination of “signed English and ASL.”
The Lieses claim that Susan Liese reads at a fourth-grade level and that James
Liese reads at a sixth-grade level. James Liese also testified at his deposition that
it is hard for him to read fine print because he suffers from a vision disorder that
he called “age macro degeneration,” or AMD.
On November 28, 2007, Liese went to the Hospital with her husband. Liese
had called her primary care doctor -- Dr. Brown -- through a video relay service,
complaining that she was experiencing dizziness and chest pains. The doctor
ordered Liese to go directly to the emergency room. Upon arriving at IRMH, the
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Lieses went to the front desk. The front desk employee and Susan Liese
exchanged written notes to convey Susan Liese’s identifying information and her
reason for coming to the Hospital. Both Susan Liese and James Liese asked for an
interpreter at the front desk. The requests were made in writing and orally: James
Liese passed a note requesting a “sign language interpreter,” while either James
Liese or Susan Liese orally asked for an interpreter. The front desk employee
orally responded that the nurse would take care of it. Susan Liese did not
understand what the employee said, but James Liese explained to her what the
employee had said. The Lieses then moved to a small waiting room in the
emergency room. A Hospital employee (it is unclear which one) mouthed
repeatedly “Doctor will be with you.”2
2
At her deposition, Liese offered the following:
Q. So someone told you that the doctor would be there or you
would be seen by a doctor shortly?
A. That’s all he kept on mouthing, “Doctor will be with you.
Doctor will be with you.” I sat in this room. I waited for a long
time. A doctor came in, immediately looked at me, then went back
out. I can’t remember which doctor came in . . . . He was
checking the x-rays. I was puzzled with what was going on, no
name, I don’t know who that was.
Later on, [a] doctor came in. “Can you read my lips?”
I said, “I don’t understand.” My husband didn’t know what was
going on, and we asked for an interpreter because we couldn’t
understand.
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Several doctors were involved in treating Liese in the ER, but the exact
nature of her interaction with each one is unclear from the record. Liese told one
of the emergency room doctors that she could read lips “some.” A “second
person” -- whom Liese believes to have been Dr. Theodore Perry (“Dr. Perry”) --
conducted a more thorough examination. Liese’s exact interaction with Dr. Perry
is not entirely clear from the record. At one point he asked her, “Can you read my
lips?” She responded, “No.” Liese also testified that, at some point, the following
exchange occurred: “[Dr. Perry] laughed at me, can you read my lips? He was
overexaggerated. And I said thank you. And my husband could, but not
completely.” Liese testified that, besides this brief exchange, she could not
understand Dr. Perry. She does not recall if Dr. Perry communicated in any other
way at that time.
During her meeting with Dr. Perry, Liese verbalized that she had chest pain
“You understand me?”
And he goes, like, “No, no, I don’t know what’s going -- I don’t
understand what’s going on.”
So someone else came in. So it was that -- and they -- they
understand me. They had no nametag or anything.
“Where’s the interpreter?”
Nothing.
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and dizziness. After the examination, Liese again verbally asked for an interpreter
from “[o]ne of the staff or a nurse,” who responded that he or she would “get
something called a VIP.”3 Liese further said that she asked “everybody who came
in . . . the nurse, the doctor, the phlebotomist . . . for an interpreter.”
Several tests were performed on Liese in the emergency room. She says
that she had minimal communication with the individuals performing the tests; she
was not told why the tests were necessary, and she learned only what the tests
were. In response to her question asking why she needed an X-ray, the individual
responded “X-ray”; in another situation, the person said “heart” and “pointed to
the heart” before conducting what Liese believes to have been an EKG.4 Liese
saw her two doctors talking with one another after an ultrasound had been
performed; she did not know what they were saying and did not inquire about their
conversation.
Sometime in the afternoon, after the tests were concluded, Dr. Perry
informed Liese that her gallbladder needed to be removed and that it was an
3
As discussed below, Nancy Paulsen, Susan Liese’s daughter who suffers from no
communicative disabilities, called IRMH and requested an interpreter for her mother from “a
female nurse.” Paulsen said she believed that the nurse had called the “video box” that would
substitute for an interpreter a “VIP box.” Both Liese’s and Paulsen’s conversations could
therefore reasonably be construed as referring to MARTTI.
4
Liese recounted, “I can’t hear what they’re talking about. . . . I don’t understand
nothing. I wish I had an interpreter there, but I wasn’t, it’s depressing.”
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emergency. Dr. Perry explained the manner in which the surgery would be
performed through a combination of speaking, pantomime, and note-writing.
According to Liese, Dr. Perry was “pointing and pointing . . . to all my tubes, a
light or what would go inside” as part of his explanation. Dr. Perry also said that
the surgery would be “laparoscopic,” a word that Dr. Perry wrote down on a piece
of paper and gave to Liese. He apparently wrote other notes to Liese as well, but it
“wasn’t like a back and forth communication of writing, notes back and forth to
each other. It was a word and then he explained the word.” Instead, Liese said
both she and Dr. Perry “mostly” communicated orally. Liese testified that she did
not understand the notes, but she did not tell Dr. Perry that she did not understand
what he had written. She did, however, again request an interpreter; Dr. Perry said
nothing in response. When Liese asked Dr. Perry why she was having surgery on
her stomach when she was having pains in her chest, he simply wrote a short note
saying “remove it and you’ll feel better after that.” To be sure, the facts offered by
Susan Liese and Dr. Perry differ significantly. Indeed, Dr. Perry testified that
Susan Liese “never” asked him for an interpreter and that he “would have walked
out of the room and got her an interpreter” if she had done so. At this stage in the
proceedings, we are obliged to accept Susan Liese’s account.
Later that day, Liese sent a text message to her daughter, Nancy Paulsen.
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Liese told Paulsen that she was in the hospital and was going to have surgery.
Paulsen asked her mother whether an interpreter had been provided. When Liese
told her that no interpreter had been provided, Paulsen called the Hospital and was
transferred to a nurse on Liese’s floor. Paulsen inquired about an interpreter; the
nurse responded that “they were working on it” and that a “video box” that was as
good as an interpreter would be provided. Paulsen also learned during the phone
call that Liese had to undergo an emergency gallbladder-removal surgery because
of gallstones.
At some point, Liese was informed that her surgery was scheduled for the
following day and that she would have to spend the night in the hospital. The next
morning, on the day of the surgery, Dr. Perry visited Liese to talk about the
surgery. Liese again asked him, “Why -- why are you removing -- removing the
gallbladder? I have chest pains. I had no abdomen pains.” She does not remember
his exact response, except that he merely reiterated that it needed to be removed
without providing any explanation. She again asked Dr. Perry for an interpreter;
and again, Dr. Perry did not respond.
A nurse then provided Liese with a consent form for the surgery. Liese said
that the nurse gave her the form, said only “please sign,” and that the consent form
was “for surgery.” Liese explained that she did not read the consent form, that she
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could not understand it, and that her husband read only “the top part, not the fine
print underneath.” Dr. Jose Ortega (“Dr. Ortega”), an anesthesiologist, also visited
Liese at some point during the morning of her surgery. Dr. Ortega told her he was
going to provide anesthesia. He did not give any additional explanation, but Liese
says she “knew what [anesthesia] mean[t]” from prior surgeries. Liese claims that
she signed the anesthesia consent form, that she read only the top part, and that her
husband told her that the form was for “putting [her] to sleep” and to sign it. The
Lieses did not ask Dr. Ortega any questions, and Liese said that she did not have
any “difficulty in communication” with Dr. Ortega. Liese never told anyone that
she could not understand any of the consent forms.
Liese then proceeded to surgery, which was, by all accounts, successful.
After the surgery, Dr. Perry visited Liese. According to Liese, “he looked at the
chart thing, and he said, ‘Go home, rest,’ and thumbs up.” She added that she
could not understand the remainder of what he had said.
The plaintiffs brought this lawsuit in the United States District Court for the
Southern District of Florida in November 2009. Both Susan Liese and James
Liese alleged that the Hospital’s failure to provide auxiliary aids necessary to
ensure effective communication violated § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794. Susan Liese also sued IRMH, Dr. Ortega, and Dr. Perry under
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state law for failing to obtain informed consent and for the negligent infliction of
emotional distress. Both Dr. Perry and Dr. Ortega were eventually dismissed from
the lawsuit, leaving IRMH as the only defendant.
The district court ultimately granted IRMH’s motion for summary judgment
on all claims. The court had originally granted summary judgment to IRMH on
the state law claims but had denied summary judgment on the Rehabilitation Act
claim. However, the court reconsidered its decision on the Rehabilitation Act
claim sua sponte after it concluded that the facts surrounding the earlier Fisher
settlement would be inadmissible under Federal Rule of Evidence 408
(Compromise Offers and Negotiations) to establish IRMH’s liability in the case.
In reconsidering IRMH’s motion for summary judgment on the Rehabilitation Act
claim, the district court determined that the Lieses had not offered sufficient
evidence in the absence of the Fisher settlement to state a valid claim for
compensatory damages under the Rehabilitation Act. The district court observed
that this Court had not yet decided whether deliberate indifference or
discriminatory animus was the proper standard for establishing the discriminatory
intent required to recover compensatory damages under the Act. However, it
concluded that the Lieses’ claim failed anyway as a matter of law under the
less-stringent deliberate indifference standard, since the Hospital had a policy in
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place regarding communicative barriers and conducted employee training on the
issue. Ultimately, the district court determined that while IRMH may have
negligently violated the Rehabilitation Act, negligent conduct was not sufficient.
The plaintiffs timely appealed the district court’s grant of summary
judgment on the RA and negligent infliction of emotional distress claims, as well
as an order excluding the Fisher settlement, and a protective order limiting
examination of two nonparty doctors.
II.
We review a district court’s grant of summary judgment de novo. FindWhat
Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). At this stage in the proceedings we are required to “view all of
the evidence in a light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” FindWhat, 658 F.3d at 1307. The
entry of a protective order is reviewed only for abuse of discretion. Chrysler Int’l
Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002).
A.
Section 504 of the RA provides that “[n]o otherwise qualified individual
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with a disability in the United States . . . shall, solely by reason of her or his
disability, 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(a). Regulations promulgated by the
Department of Health and Human Services offer additional guidance regarding the
statute’s prohibition in this context. First, “[a] recipient hospital that provides
health services or benefits shall establish a procedure for effective communication
with persons with impaired hearing for the purpose of providing emergency health
care.” 45 C.F.R. § 84.52(c). Second, “[a] recipient . . . that employs fifteen or
more persons shall provide appropriate auxiliary aids to persons with impaired
sensory, manual, or speaking skills, where necessary to afford such persons an
equal opportunity to benefit from the service in question.” 45 C.F.R. § 84.52(d)(1)
(emphases added). These “auxiliary aids may include brailled and taped material,
interpreters, and other aids for persons with impaired hearing or vision.” 45
C.F.R. § 84.52(d)(3). “[A]ids, benefits, and services, to be equally effective, are
not required to produce the identical result or level of achievement for
handicapped and nonhandicapped persons, but must afford handicapped persons
equal opportunity to obtain the same result, to gain the same benefit, or to reach
the same level of achievement, in the most integrated setting appropriate to the
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person’s needs.” 45 C.F.R. § 84.4(b)(2).
To recover compensatory damages under § 504, the Lieses must show that
(1) IRMH violated their rights under § 504, and (2) that IRMH did so with
discriminatory intent. See Woods v. President & Trs. of Spring Hill Coll., 978
F.2d 1214, 1219 (11th Cir. 1992). The “discriminatory intent” element raises two
related legal questions: first, whether a defendant’s deliberate indifference is
sufficient to establish intentional discrimination under § 504 of the RA; and
second, whether the conduct of the Hospital’s medical personnel, including its
doctors and nurses involved in treating Susan Liese, can be attributed to the
defendant under § 504 of the RA.
B.
We turn first to the issue of whether IRMH has violated the plaintiffs’ rights
under § 504. The Lieses claim that IRMH failed to provide “appropriate auxiliary
aids” in violation of the RA and 45 C.F.R. § 84.52(d)(1).
We begin with the obvious: the task of determining whether an entity
subject to the RA has provided appropriate auxiliary aids where necessary is
inherently fact-intensive. See, e.g., Chisolm v. McManimon, 275 F.3d 315, 327
(3d Cir. 2001) (“Generally, the effectiveness of auxiliary aids and/or services is a
question of fact precluding summary judgment.”); Randolph v. Rodgers, 170 F.3d
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850, 859 (8th Cir. 1999) (finding that whether a sign language interpreter was
required under the RA is a question of fact inappropriate for summary judgment);
Duffy v. Riveland, 98 F.3d 447, 454-56 (9th Cir. 1996) (concluding that whether
qualified sign language interpreter was required under the Americans with
Disabilities Act of 1990 is a question of fact inappropriate for summary judgment).
Nonetheless, this does not mean that every request for an auxiliary aid that is not
granted precludes summary judgment or creates liability under the RA. Thus, for
example, as both parties agree, the simple failure to provide an interpreter on
request is not necessarily deliberately indifferent to an individual’s rights under
the RA. Indeed, construing the regulations in this manner would effectively
substitute “demanded” auxiliary aid for “necessary” auxiliary aid. Instead, the
proper inquiry is whether the auxiliary aid that a hospital provided to its hearing-
impaired patient gave that patient an equal opportunity to benefit from the
hospital’s treatment.
Whether a particular aid is effective in affording a patient an equal
opportunity to benefit from medical treatment largely depends on context,
including, principally, the nature, significance, and complexity of the treatment.
For example, emergency surgery is often a complicated concept to convey to a
person who can hear well; the attendant risks, manner of surgery, prognosis, and
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advantages or disadvantages of immediate or postponed surgery can only
complicate this communicative task. Thus, under circumstances in which a patient
must decide whether to undergo immediate surgery involving the removal of an
organ under a general anesthetic, understanding the necessity, risks, and
procedures surrounding the surgery is paramount. Under these circumstances,
auxiliary aids limited to written notes, body gestures, and lipreading may be
ineffective in ensuring that a hearing-impaired patient receives equal opportunity
to benefit from the treatment.5
In this case, IRMH medical personnel conducted a battery of tests on Liese
and then removed her gallbladder through emergency laparoscopic surgery. The
auxiliary aids that the personnel relied on to communicate the nature of and need
for the surgery consisted of mouthing words for the Lieses to try and lipread,
5
The Department of Justice (“DOJ”) has suggested as much in its interpretation of
regulations promulgated under the Americans with Disabilities Act of 1990 (“ADA”), tit. III,
Pub. L. No. 101-336, 104 Stat. 327, 353 (codified as amended at 42 U.S.C. §§ 12181-12189),
which concerns discrimination by places of public accommodation. A DOJ regulation nearly
identical to the RA regulations at issue in this case provides that “[a] public accommodation shall
furnish appropriate auxiliary aids and services where necessary to ensure effective
communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). In construing this
provision in the medical context, the Department noted as an example that “an individual with a
disability who is deaf or hard of hearing may need a qualified interpreter to discuss with hospital
personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed medication
(e.g., dosage, side effects, drug interactions, etc.).” 28 C.F.R. pt. 36, app. A. Conversely, a
person with the same disability “who purchases an item in the hospital gift shop may need only
an exchange of written notes to achieve effective communication.” Id.
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writing notes, and pantomiming.6 Viewed in a light most favorable to the Lieses,
the record contains sufficient evidence to show that these limited auxiliary aids
were ineffective and that additional aids were necessary. At her deposition, Liese
testified that she did not understand much of what she was purportedly told about
her condition, prognosis, and proposed treatment by the attending emergency
room personnel. Liese did not understand the battery of tests that were conducted
on her. She said in her deposition that she repeatedly asked Dr. Perry why she was
having gallbladder surgery when she was suffering from chest pains, not stomach
pains, a question to which Dr. Perry apparently responded by writing a note that
said, “remove it and you’ll feel better after that.” Liese flatly asserted that the
doctor “didn’t tell me [or] explain anything.” In light of the major surgery
required, under a general anesthetic, on an emergency basis, it seems to us fairly
arguable that effective communication entails telling the patient more than that the
proposed surgery will solve the problem. We think a reasonable juror could find
from these facts that IRMH failed to provide appropriate and necessary auxiliary
aids to ensure that the Lieses received an equal opportunity to benefit from
medical treatment.
6
Even as to non-hearing-impaired patients, Dr. Perry remarked in his deposition that “[i]t
is not infrequent for a patient . . . not to understand what the word laparoscopic means.”
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But such a failure by itself will not sustain a claim for compensatory
damages; the Lieses must also show by a preponderance that the Hospital’s failure
to provide appropriate auxiliary aids was the result of intentional discrimination.
See Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219 (11th
Cir.1992). This Court has not yet determined what standard of proof a plaintiff
must meet to demonstrate discriminatory intent under the RA. See e.g., T.W. ex
rel Wilson v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588, 604 (11th Cir. 2010);
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1080-81 (11th Cir. 2007). Nor have
we had occasion to address the issue of who within an organization must act with
discriminatory intent. See Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248,
1254-1255 (11th Cir. 2010) (in Title IX context). We address these issues now.
C.
As an initial matter, our prior cases have suggested, without deciding
between, two alternative standards for defining discriminatory intent: deliberate
indifference and discriminatory animus. See, e.g., T.W., 610 F.3d at 604.
This Court has defined deliberate indifference in the RA context as
occurring when “the defendant knew that harm to a federally protected right was
substantially likely and . . . failed to act on that likelihood.” T.W., 610 F.3d at 604
(emphases added); accord Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268,
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275 (2d Cir. 2009); Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d
1222, 1228-29 (10th Cir. 2009); Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139
(9th Cir. 2001). As we have observed in another context, deliberate indifference
plainly requires more than gross negligence. See Bozeman v. Orum, 422 F.3d
1265, 1272 (11th Cir. 2005) (per curiam) (discussing standard in medical needs
claim brought under the Eighth Amendment). Rather, deliberate indifference
requires that the indifference be a “deliberate choice,” Loeffler, 582 F.3d at 276,
which is an “exacting standard,” Doe, 604 F.3d at 1259.
Discriminatory animus, by contrast, requires a showing of prejudice, spite,
or ill will. See, e.g., Wood, 978 F.2d at 1218-19 (11th Cir. 1992); see also Ferrill
v. Parker Grp., Inc., 168 F.3d 468, 472-73 & n.7 (11th Cir. 1999) (defining “racial
animus” as “ill will, enmity, or hostility”). Put differently, discriminatory animus
is generally thought to be a combination of intentionally differential treatment and
a disdainful motive for acting that way. See Wood, 978 F.2d at 1220 (noting that
“intentional discrimination” is a “lesser requirement” than “discriminatory
animus”).
Here, the Lieses argue that “deliberate indifference” is the appropriate
standard for defining discriminatory intent. The Hospital does not dispute this
point on appeal. Rather, it argues that the Lieses’ claim fails as a matter of law
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even under a deliberate indifference standard. We agree with the parties and hold
that a plaintiff may demonstrate discriminatory intent through a showing of
deliberate indifference.
We begin by noting that all but one of our sister circuits to have addressed
this issue have similarly concluded that a claim for compensatory damages under §
504 of the RA may be satisfied by a showing of deliberate indifference. See
Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011) (“The district
court decided that deliberate indifference was the appropriate standard for
showing intentional discrimination in this type of case . . . . [W]e agree.”); Duvall
v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (“To recover monetary
damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must
prove intentional discrimination on the part of the defendant . . . . We now
determine that the deliberate indifference standard applies.” (citations and footnote
omitted)); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.
1999) (“[I]ntentional discrimination can be inferred from a defendant’s deliberate
indifference to the strong likelihood that pursuit of its questioned policies will
likely result in a violation of federally protected rights.”); Bartlett v. N.Y. State
Bd. of Law Exam’rs, 226 F.3d 69, 78 (2d Cir. 2000) (“In the context of the
Rehabilitation Act, intentional discrimination against the disabled does not require
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personal animosity or ill will . . . [it] may be inferred when a policymaker acted
with at least deliberate indifference to the strong likelihood that a violation of
federally protected rights will result from the implementation of the challenged
policy . . . or custom” (internal quotation marks and alterations omitted)). But see
Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (rejecting
deliberate indifference standard). However, since there has been little explication
for the conclusion that intentional discrimination under the RA may be established
by deliberate indifference, we add these thoughts.
To define discriminatory intent, we begin with the text of the RA as the
starting point of statutory construction. See Southeastern Cmty. Coll. v. Davis,
442 U.S. 397, 405 (1979) (citing Blue Chip Stamps v. Manor Drug Stores, 421
U.S. 723, 756 (1975) (Powell, J., concurring)). Section 504(a) of the RA states in
pertinent part, “No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, 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(a). The only statutory remedy contained in the RA for a § 504 violation is a
cross-reference to Title VI. Specifically, § 505(a)(2) of the RA provides that the
“remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of
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1964 (42 U.S.C. 2000d et seq.) . . . shall be available to any person aggrieved by
any act or failure to act by any recipient of Federal assistance or Federal provider
of such assistance under [section 504 of this Act].” 29 U.S.C. § 794a(a)(2). Thus,
the text of the RA directs us to look to Title VI law to determine the scope of a
plaintiff’s remedies for § 504 violations.
Prior Supreme Court cases have established two principles regarding a
claim for compensatory damages under Title VI and, thus, the RA. First, it is clear
that private persons may sue to enforce Title VI’s companion provision to § 504 of
the RA under a judicially implied cause of action. Alexander v. Sandoval, 532
U.S. 275, 279-80 (2001) (“[P]rivate individuals may sue to enforce § 601 of Title
VI and obtain both injunctive relief and damages.”). Second, private individuals
may recover compensatory damages under Title VI only in cases of intentional
discrimination.7 Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 607 n.27
(1983) (White, J.) (noting in an otherwise highly divided decision that a majority
of the Justices “would not allow compensatory relief in the absence of proof of
7
Justice White, writing for a fractured Court in Guardians, explained that Title VI,
because it was passed under Congress’s Spending Clause power, operates as a contract between
the Federal government and recipients of Federal funding. See Guardians, 463 U.S. at 597-98.
Drawing on an analogy to contract law, Justice White reasoned that a recipient should only be
liable for money damages under the Court’s judicially implied remedy in situations where the
recipient knew that it was violating one of its obligations under Title VI. See id. Justice White
then explained that such knowledge is presumed in cases of intentional discrimination. See id.
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discriminatory intent” under Title VI); Sandoval, 532 U.S. at 282-83 (“In
Guardians, the Court held that private individuals could not recover compensatory
damages under Title VI except for intentional discrimination.” (internal citations
omitted)). The Supreme Court, however, has not given any guidance on what
“intentional discrimination” means in the context of either Title VI or the RA.
Thus, we expand the scope of our inquiry.
To resolve other ambiguities in the RA, the Supreme Court has also looked
to Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat.
373 (codified as amended at 20 U.S.C. §§ 1681-1688) for guidance. See Barnes v.
Gorman, 536 U.S. 181, 185-89 (2002) (looking to Title IX case law to delineate
the scope of private damages remedies available under the RA); Consol. Rail
Corp. v. Darrone, 465 U.S. 624, 635-36 (1984) (looking to Title IX case law to
define the term “program or activity receiving Federal financial assistance” in the
RA). Although the RA does not explicitly reference Title IX, Title IX case law is
nonetheless informative because of the striking similarities between Title IX and
the RA. Title IX, like the RA, was modeled after Title VI, and the text of all three
acts are virtually identical; the prohibitions contained in each statute vary only by
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the type of discrimination that is forbidden.8
Also significant is that the three statutes share the same Constitutional
foundation: Congress enacted all three pursuant to its powers under the Spending
Clause, U.S. Const., art. I, § 8, cl. 1. As the Supreme Court has noted, Spending
Clause legislation is analogous to a contract between the federal government and
recipients of federal funds. See Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981) (“[L]egislation enacted pursuant to the spending power is much
in the nature of a contract . . . .”). Accordingly, the Court has applied the same
contract-law analogy to define the scope of private damages remedies available
8
Compare Civil Rights Act of 1964 § 601, 42 U.S.C. § 2000d:
No person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance,
with Education Amendments of 1972 § 901, 20 U.S.C. § 1681(a):
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance . . . ,
and Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794(a):
No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, 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 . . . .
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under the RA, Title VI, and Title IX. See Barnes, 536 U.S. at 186-88 (“[W]e have
regularly applied the contract-law analogy in cases defining the scope of conduct
for which funding recipients may be held liable for money damages . . . . The
same analogy applies, we think, in determining the scope of damages remedies.”).
Thus, we think it appropriate to look to the Supreme Court’s Title IX case
law for some guidance in defining the term “discriminatory intent” for purposes of
the RA.9 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1989), a Title IX
case, is particularly instructive. There, the Supreme Court held that, like in Title
VI cases, a plaintiff suing for money damages must demonstrate discriminatory
intent, which a plaintiff may establish by showing deliberate indifference. The
Court reached this holding by analyzing the purpose of Title IX as well as its
express remedial structure. It first observed that, because the private right of
action under Title IX is judicially implied, it has “a measure of latitude to shape a
sensible remedial scheme that best comports with the statute.” See Gebser, 524
U.S. at 284. The Court noted that the text of the statute itself gave little guidance
on the matter, and so the Court looked to the purpose of Title IX and the scope of
9
To be sure, we do not hold that Title IX and Title VI case law should be automatically
imputed to the RA. See Alexander v. Choate, 469 U.S. 287, 294 n.7 (1985) (“[T]oo facile an
assimilation of Title VI law to § 504 must be resisted.”). Nevertheless, Title IX law is instructive
in situations where the Supreme Court’s reasoning naturally applies with equal force to the RA.
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Title IX’s express remedy to infer congressional intent.
As for purpose, the Court observed that Congress enacted Title IX with two
principal objectives in mind: “[T]o avoid the use of federal resources to support
discriminatory practices” and “to provide individual citizens effective protection
against those practices.” Gebser, 524 U.S. at 286 (quoting Cannon v. Univ. of
Chicago, 441 U.S. 677, 704 (1979)). Nevertheless, because Congress enacted
Title IX under its Spending Clause power, the Court’s implied right should not
allow for money damages against recipients who are not aware that they are
violating Title IX. See Gebser, 524 U.S. at 287 (citing Guardians, 463 U.S. at
596-603). The deliberate indifference standard, the Court reasoned, meets the
objectives of Title IX while providing the requisite notice to federal funds
recipients because it requires that the recipient know of its discriminatory action
and deliberately refuse to act on that knowledge. See id. at 290.
The Court also explained that the scope of Title IX’s implied remedy should
not exceed the scope of Title IX’s express remedy. Id. at 288-90 (“[I]t would be
anomalous to impute to Congress an intention to expand the plaintiff class for a
judicially implied cause of action beyond the bounds it delineated for comparable
express causes of action.” (quoting Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 180 (1994) (internal quotation
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marks omitted))). Title IX’s express remedy -- an enforcement proceeding
brought by an administrative agency against entities that are in violation of Title
IX -- is limited by the twin requirements that the defendant-entity had actual notice
that it was in violation of Title IX and had an opportunity to rectify the violation.
See 20 U.S.C. § 1682; Gebser, 524 U.S. at 290. The deliberate indifference
standard, the Court suggested, was a “rough parallel” to the express remedy’s
notice-and-opportunity requirements. Gebser, 524 U.S. at 290.
Because of the similarities between Title IX and the RA, Gebser’s purpose-
and-scope reasoning applies with similar force to the RA and yields the same
result. The two principal purposes of Title IX that were outlined in Gebser -- to
avoid the use of Federal funds to support discriminatory practices and to protect
citizens against discriminatory practices -- are shared by §504 of the RA. See S.
Rep. 93-1297, at 1 (1974), reprinted in 1974 U.S.C.C.A.N. 6373, 6390-91. The
legislative history of the RA also shows that Congress intended for § 504 to
combat intentional discrimination in general, not just discrimination resulting from
“invidious animus.” See Alexander v. Choate, 469 U.S. 287, 295 (1985).
Additionally, like Title IX, Congress enacted the RA under its Spending Clause
power. Thus, we are presented with the same balancing act that the Supreme
Court faced in Gebser. Since the scales are loaded with the same set of interests as
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in Gebser, we are inclined to reach the same result: The deliberate indifference
standard best reflects the purposes of § 504 while unambiguously providing the
notice-and-opportunity requirements of Spending Clause legislation. A lower
standard would fail to provide the notice-and-opportunity requirements to RA
defendants, while a higher standard -- requiring discriminatory animus -- would
run counter to congressional intent as it would inhibit § 504’s ability to reach
knowing discrimination in the absence of animus. See Alexander, 469 U.S. at
295.
Moreover, application of the deliberate indifference standard does not
exceed the scope of express remedies available for § 504 violations. While the
RA itself does not contain any express remedies for § 504 violations, again, it
expressly incorporates Title VI’s remedies. See 29 U.S.C. § 794a(a)(2). Title VI’s
remedial scheme, which mirrors Title IX’s, also empowers administrative agencies
to bring enforcement proceedings against entities. See 42 U.S.C. §2000d-1. The
notice-and-opportunity requirements in Title VI administrative enforcement
proceedings are the same as those found in Title IX. See id. The deliberate
indifference standard is fully consonant with these notice-and-opportunity
requirements.
In light of the parties’ agreement about the appropriate standard, the
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overwhelming body of circuit case law, and our review of the pertinent analogs,
we have little difficulty in applying deliberate indifference to this case.
D.
The remaining essential legal question in this RA claim is whether the
deliberate indifference of IRMH’s medical personnel can be attributed to the
Hospital so that IRMH can fairly be said to have acted with deliberate
indifference. There are two possible ways to impute liability in this case:
respondeat superior or the narrower approach adopted by the Supreme Court in
Gebser. See 524 U.S. at 287-90. Neither party has properly placed before this
Court the issue of which standard applies.10 Instead, both parties approvingly cite
to Gebser, which flatly rejects the use of respondeat superior and constructive
notice principles. See 524 U.S. at 287-88. We agree that Gebser provides the
correct standard. Gebser’s analysis of what constitutes discriminatory intent
(detailed supra) is inseparably linked to the question of whose discriminatory
10
The plaintiffs’ mention of vicarious liability as an appropriate standard in one sentence
in their reply brief constitutes a waiver of this argument. See Conn. State Dental Ass’n v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.11 (11th Cir. 2009) (“Because they raised this
argument for the first time in their reply brief, we treat this argument as waived.”). We need not
determine the applicability of such a standard as a result, but we do note that several circuits have
found respondeat superior liability to apply to suits brought under the Rehabilitation Act. See
Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574-75 (5th Cir. 2002); Duvall v. Cnty. of
Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001); Rosen v. Montgomery Cnty. Md., 121 F.3d 154,
157 n.3 (4th Cir. 1997); see also Patton v. Dumpson, 498 F. Supp. 933, 942-43 (S.D.N.Y. 1980).
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intent may be attributed to IRMH for purposes of establishing liability. Thus, the
same reasoning that led us to adopt Gebser’s deliberate indifference standard also
leads us to adopt its analysis of attribution.
For an organization to be liable for Title IX purposes, Gebser requires the
deliberate indifference of “an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures on the
[organization’s] behalf [and who] has actual knowledge of discrimination in the
[organization’s] programs and fails adequately to respond.” Gebser, 524 U.S. at
290 (emphases added). The parties differ here, however, on who an “official” is,
and neither the Supreme Court nor our Court has had occasion to address this
issue. The Lieses say that every single employee of the staff who knew of the
Lieses’ impairment and had the authority to provide the Lieses with an interpreter
is an official within the meaning of Gebser. IRMH argues that Gebser requires the
deliberate indifference of an IRMH “policy maker” -- that is, someone capable of
making an official decision. We think neither interpretation appropriately
describes the Gebser standard.
The Lieses’ interpretation essentially eviscerates the requirement that there
be a decision by an official. Gebser did not define an official to be a person who
has knowledge of a violation and the authority to correct it; rather, Gebser stated
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that, for liability to attach, there must be (1) “an official” who, (2) “at a minimum,”
has the requisite knowledge and authority. See Gebser, 524 U.S. at 290. In other
words, Gebser’s requirement that there be an official is distinct from its
requirement that the official have the knowledge of and authority to correct an
entity’s discriminatory practices.
IRMH’s interpretation, on the other hand, adds a requirement that is not
found in the Gebser standard. Nowhere in the language of Gebser does the Court
indicate that only those who are authorized to set an entity’s policy may be
officials.11 Entities regularly undertake a myriad of official actions that do not
involve policymaking. Likewise, an entity may have an official representative --
for example, a corporate spokesperson -- who does not have policymaking
authority.
A natural reading of Gebser reveals that the purpose of the “official”
requirement is to ensure that an entity is only liable for the deliberate indifference
of someone whose actions can fairly be said to represent the actions of the
organization. See Gebser, 524 U.S. at 290 (“The premise, in other words, is an
11
IRMH cites to an unpublished case, Saltzman v. Bd. of Comms. of N. Broward Hosp.
Dist., 239 F. App’x 484 (11th Cir. 2007), for the proposition that only those with policy-making
power can be officials. While Saltzman uses “policymaker” and “official” interchangeably, the
case clearly defines policymaker merely as someone “capable of making an ‘official decision’ on
behalf of the organization.’” See id. at 488. Thus, Saltzman does not support IRMH’s
proposition that an official must be someone who is able to set company policy.
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official decision by the recipient not to remedy the violation.”); Doe v. Sch. Bd. of
Broward Cnty., Fla., 604 F.3d 1248, 1255 (11th Cir. 2010) (commenting that an
official must be someone “high enough up the chain-of-command that his acts
constitute an official decision . . . not to remedy the misconduct” (quoting Floyd v.
Waiters, 171 F.3d 1264 (11th Cir. 1999))). The question of how far up the chain
of command one must look to find an “official” is necessarily a fact-intensive
inquiry, since an official’s role may vary from organization to organization. See
Doe, 604 F.3d at 1256-57. In the § 504 context, we conclude that an 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. See
Doe, 604 F.3d at 1256-57. The “key decision point” language reflects the
practical reality that, while some decisions are technically subject to review by a
higher authority, such a review is not part of the entity’s ordinary decision-making
process. See id.
In the present case, a reasonable juror could conclude from this record that
the doctors at IRMH were officials within the meaning of Gebser. Viewed in a
light most favorable to the Lieses, the record shows at least that the doctors had
complete discretion to decide whether or not to provide the Lieses with an
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interpretive aid. While any Hospital staff member, be it a doctor or a nurse, had
the authority to ask for an interpreter or to retrieve the Hospital’s MARTTI video
interpreting system from the storage closet, on this record the evidence suggests
strongly that the doctors had supervisory authority. Indeed, the doctors could
overrule a nurse’s decision to not provide an auxiliary aid. In contrast, there is no
evidence here to suggest that the doctors’ decisions were subject to reversal.
Thus, unlike the nurses, the doctors enjoyed complete discretion over whether or
not to provide the Lieses’ with an interpreter or other auxiliary aid.
A review of IRMH’s “Communication Barriers” policy confirms this
arrangement. The policy provides that interpretive aids, such as interpreters and
the MARTTI video interpreting system, are all “available” to provide assistance in
communicating with patients. However, the policy offers no guidance or
recommendation as to when doctors or nurses should use these aids; rather, it
affords the IRMH staff complete discretion in these matters. Similarly, the
training that IRMH provided to its staff on MARTTI dealt exclusively with how to
use MARTTI, not when to use it.
We add that Dr. Perry averred in his deposition that, over the last 17 years
(which includes the time of the Lieses’ treatment), he had been the chairman of
IRMH’s Department of Surgery, the vice-chairman before that, and that he was
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also a member of IRMH’s Medical Executive Committee. Taking these facts in a
light most favorable to the Lieses, a reasonable juror could conclude that Dr. Perry
had supervisory authority even beyond that of other IRMH doctors during the time
of Susan Liese’s treatment.
E.
Having established that the summary judgment record supports a reasonable
finding that IRMH failed to provide Susan Liese with necessary and appropriate
auxiliary aids in violation of § 504 and 45 C.F.R. § 84.52(d)(1), and having
outlined the meaning of “discriminatory intent,” we turn finally to whether a jury
could reasonably find that the Hospital acted with deliberate indifference. For the
Lieses’ claim to survive summary judgment, a reasonable juror must be able to
find that at least one of IRMH’s doctors (1) knew that IRMH had failed to provide
Susan Liese with appropriate auxiliary aids necessary to ensure effective
communication (the § 504 violation), (2) had the authority to order that aid be
provided, and (3) was deliberately indifferent as to IRMH’s failure to provide aid.
We think the record, again viewed in a light most favorable to the Lieses, could
support such a finding.
The record provides ample evidence that the conduct of Dr. Perry met all
three of these essential elements. Susan Liese testified that, on the day before her
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surgery, she had told Dr. Perry that her ability to read lips was limited. Liese
further recounted that Dr. Perry “laughed at” her and made exaggerated facial
movements when asking whether she could read lips. Moreover, Liese had told
Dr. Perry at least twice that she needed an interpreter and both times Dr. Perry
ignored her request. Moreover, when Dr. Perry began explaining that she needed
to have her gallbladder removed, Liese asked why she was having surgery on her
stomach when she was experiencing chest pain. Dr. Perry’s response to this
question was to write down, “remove it and you’ll feel better.” The next day, on
the morning of her surgery, Liese repeated her request for an interpreter and again
asked why she needed the surgery. A reasonable juror could well find from these
facts that Dr. Perry knew that he was not effectively communicating with Liese,
despite his attempts at pantomime, and that Liese needed more substantive
interpretive aids to understand the nature of and need for her surgery.12
As for the second and third elements, it is undisputed that Dr. Perry had the
authority to obtain an interpreter or some other equivalent for Susan Liese. Thus,
he clearly had the authority to remedy the failure. It is also undisputed that Dr.
12
To be sure, a reasonable juror could also find that the doctors honestly believed that
Susan Liese did not need any interpretive aid. In fact, as we have noted, Dr. Perry testified that
Susan Liese never asked for an interpreter. However, this is an issue of material fact to be
resolved at trial, not on summary judgment.
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Perry never made any attempt to obtain any interpretive aid for Susan Liese. His
apparent knowledge that Liese required an additional interpretive aid to effectively
communicate with him and his deliberate refusal to provide that aid satisfies the
deliberate indifference standard.
On this point, IRMH argues nevertheless that it should not be liable for the
actions of its employees because it had set forth a policy for effective
communications. This argument is unconvincing, however, because IRMH’s
policies did not provide any guidelines, requirements, or even recommendations
about when or whether the Hospital staff should provide auxiliary aids; the
“Communication Barriers” policy merely stated that auxiliary aids are “available.”
Thus, as we’ve noted, IRMH delegated complete discretion to its staff.
In sum, taking the evidence in a light most favorable to the nonmoving
party, a reasonable juror could find that Dr. Perry made an “official decision” for
IRMH with regard to the provision of auxiliary aids. Dr. Perry arguably knew that
IRMH had failed to provide the Lieses with appropriate aids that were necessary
to ensure effective communication, indisputably had the unfettered authority and
ability to institute corrective measures, and decided not to remedy this failure.
This is enough to infer intentional discrimination and thus state a claim against
IRMH under § 504 of the Rehabilitation Act.
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III.
The plaintiffs also cite several additional grounds of error.13 First, Susan
Liese says that the district court improperly granted summary judgment to the
Hospital on her negligent infliction of emotional distress claim. Second, both
Lieses claim that the district court abused its discretion by entering a protective
order limiting their discovery of two nonparty doctors. We are unpersuaded by
either argument.
A.
The first issue presents a pure question of law and arises from the district
court’s grant of summary judgment; we review it de novo. FindWhat Investor
Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011). The district court
correctly concluded that, because a hospital has no duty to obtain informed
consent under Florida law, it cannot be held liable for negligent infliction of
13
The Lieses argue that the district court erroneously excluded the Fisher settlement
under Fed. R. Evid. 408. We need not resolve the admissibility of the prior settlement. Even if it
were inadmissible, the plaintiffs have put forth other sufficient evidence of material issues of fact
to merit trial on whether medical personnel were deliberately indifferent to requests for
interpretive services necessary for effective communication and, if so, whether those individuals
could bind IRMH insofar as they had the necessary authority to decide whether to provide
accommodations. The plaintiffs need not rely on an indirect method of proof to establish
knowledge if the finder of fact otherwise determines that the Lieses’ accounts are to be credited
and that the medical personnel had the requisite knowledge and authority to accommodate the
Lieses. This is enough to survive a motion for summary judgment. We offer no view about how
the district court should rule on the Fisher settlement issue.
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emotional distress for its failure to obtain Liese’s consent before operating. See
Cedars Med. Ctr., Inc. v. Ravelo, 738 So. 2d 362, 366-67 (Fla. 3d Dist. Ct. App.
1999) (concluding that hospitals have no duty to obtain a patient’s informed
consent); Yocom v. Wuesthoff Health Sys., Inc., 880 So. 2d 787, 790 (Fla. 5th
Dist. Ct. App. 2004) (same).
However, Liese does not contest the district court’s ruling insofar as it is
based upon informed consent. Rather, she argues that there are two additional
sources of duty that keep her negligent infliction of emotional distress claim
viable: (1) the RA, its regulations, and the ADA; and (2) “the general facts of the
case,” which create a duty under some inchoate common-law principle governing
claims of negligent infliction of emotional distress.14
Neither the Rehabilitation Act, its regulations, nor the ADA create a
negligence duty under Florida law in this case. Although Florida allows a statute
to be used as evidence of negligence in some circumstances, e.g., Fla. Dep’t of
14
The district court did not address either of these theories in granting summary
judgment. Instead, the district court reasoned that the negligent infliction of emotional distress
claim in its entirety was “predicated” on the informed consent claim. These two theories were
also raised in Liese’s opposition to IRMH’s motion for summary judgment. We address them on
appeal because their validity raises a question of law, and it would only further expend judicial
resources first to remand them to the district court for analysis. See Exxon Shipping Co. v.
Baker, 554 U.S. 471, 487 (2008) (citing Singleton v. Wulff, 482 U.S. 106, 120 (1976)); Ochran
v. U.S., 117 F.3d 495, 502-03 (1997). Since these claims fail as a matter of Florida law, we have
no occasion to determine whether they would otherwise be preempted under federal law.
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Corr. v. Abril, 969 So. 2d 201, 205 (Fla. 2007), Liese’s argument that the breach
of a duty by IRMH is “apparent by virtue of the Plaintiff’s rights under the
Rehabilitation Act and the regulations under the Rehabilitation Act, or the
similarly interpreted Americans with Disabilities Act,” is insufficient to state a
claim under Florida law. To be sure, Florida law provides that a statutory or
regulatory violation can, in some cases, impose strict liability on the violator,
constitute negligence per se, or serve as evidence of negligence. See deJesus v.
Seaboard Coast Line R.R. Co., 281 So. 2d 198, 200-01 (Fla. 1973). Strict liability
is imposed for statutory or regulatory violations only if the provision is of “the
type designed to protect a particular class of persons from their inability to protect
themselves, such as one prohibiting the sale of firearms to minors.” Id. at 201
(citing Tamiami Gun Shop v. Klein, 116 So. 2d 421 (Fla. 1959)). Plainly, the
provisions here are not of this kind.
Liese’s showing was also insufficient to withstand summary judgment under
either a negligence per se or evidence of negligence theory. A negligence per se
claim would be appropriate under Florida law when there is a violation of a
“statute which establishes a duty to take precautions to protect a particular class of
persons from a particular injury or type of injury.” Id. Additionally, a plaintiff
pursuing a negligence per se claim must also establish that she “is of the class the
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statute was intended to protect, that [s]he suffered injury of the type the statute
was designed to prevent, and that the violation of the statute was the proximate
cause of h[er] injury.” Id.; see also 1 Matthew Bender, Florida Torts § 1.05[1][b]
(Release No. 45 Sept. 2011) (“[O]ne must allege either that Florida courts have
recognized the violation of a particular statute or ordinance as constituting
negligence per se, or that the applicable statute or ordinance was specifically
enacted to protect a specific class of persons from a particular harm.”). Liese has
failed to meet these requirements. None of Liese’s filings with the district court
do more than vaguely assert that the RA, its regulations, or the ADA creates a duty
of effective communication, and that IRMH’s violation of this duty somehow
supports a negligent infliction of emotional distress claim under Florida law.
Nor did Liese’s filings -- which remained ambiguous as to the federal law or
regulations at issue even through her motion opposing summary judgment -- ever
establish a sufficiently specific duty to allow relief under an evidence of
negligence theory. See Murray v. Briggs, 569 So. 2d 476, 481 (Fla. 5th Dist. Ct.
App. 1990) (“At the very least, any regulation that purports to establish a duty of
reasonable care must be specific. One that sets out only a general or abstract
standard of care cannot establish negligence.” (citations omitted)). Merely citing
to federal disabilities statutes as a whole or asserting that IRMH had a general
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duty to provide effective communication is insufficient under Florida law to state a
negligence claim predicated upon the violation of a statute or regulation.15 Cf. id.
at 480-81 (declining to use federal regulation that was “vague and general” to
“control state law questions of negligence by enlarging common law duties or
creating new duties”).
Liese also relies upon McCain v. Florida Power Corp., 593 So. 2d 500 (Fla.
1992), which offers the unremarkable proposition that “Florida, like other
jurisdictions, recognizes that a legal duty will arise whenever a human endeavor
creates a generalized and foreseeable risk of harming others,” id. at 503. The
contours of such a duty as applied in this context are not discussed by Liese, nor
could they be: the only possible duties that could be placed on IRMH are to obtain
the informed consent of the patient before operating or to provide certain
communicative aids to the hearing impaired. This argument fails because those
duties fail as a matter of law for the reasons we have already discussed.
B.
The Lieses also challenge the entry of a protective order by the district court
in favor of Drs. Brown and Ulrich, the Lieses’ former primary care practitioners
15
Liese also seems to argue that the Fisher settlement created a duty that IRMH
breached. However, the mere creation of a contractual duty between IRMH and another party
does not also create a tort duty between IRMH and Liese.
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and nonparties to this lawsuit. We review the entry of a protective order for abuse
of discretion. Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir.
2002). Indeed, “[t]he trial court . . . is given wide discretion in setting the limits of
discovery, and its judgment will be overturned only when a clearly erroneous
principle of law is applied or no evidence rationally supports the decision.”
Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985)
(citation omitted). The district court did not abuse its discretion.
Dr. Brown appeared for a deposition initiated by counsel for the Hospital’s
surgeons on August 2, 2010. The cross-examination by plaintiffs’ counsel began
with the discharge of the Lieses -- that is, the termination of their doctor-patient
relationships -- by Dr. Brown’s practice, Primary Care of the Treasure Coast.
Very soon thereafter, however, the Lieses’ counsel began an inquiry into the scope
and size of Dr. Brown’s practice, including whether he had ever obtained a sign-
language interpreter for a patient and his knowledge of how to get an interpreter.
Dr. Brown was not represented at the deposition and demanded the presence of an
attorney before he would answer any further questions. Based on Dr. Brown’s
deposition testimony, the Lieses sought leave to amend their complaint to include
new claims against IRMH for retaliatory discharge under the ADA, and for
interference by IRMH with the Lieses’ business relationships because Dr. Brown
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had dropped the Lieses as patients for filing this suit against IRMH.16 The Lieses
also filed a complaint with the Department of Justice against Primary Care of the
Treasure Coast for retaliation pursuant to 42 U.S.C. § 12203. The district court
denied the Lieses’ leave to amend as untimely, and the magistrate judge further
granted a protective order to Drs. Brown and Ulrich. The magistrate judge
determined that any inquiry into the “business practices of non-parties or other
individuals” and “how these doctors may or may not have been able to
communicate with other patients” was irrelevant. The magistrate judge also said
that whether other individuals were patients of either doctor was confidential and
that the only relevant inquiry was “how individuals and/or health care providers
communicated with the Plaintiffs.” The district court affirmed the entry of this
protective order.
Federal Rule of Civil Procedure 26(b)(1) provides that the scope of
discovery includes “any nonprivileged matter that is relevant to any party’s claim
or defense.” A district court may, for good cause, issue a protective order “to
protect a party or person from annoyance, embarrassment, oppression, or undue
16
The record filed on appeal does not appear to contain the portion of Dr. Brown’s
deposition testimony that formed the basis of the Lieses’ allegation that Dr. Brown discharged
the Lieses in retaliation for filing this suit, nor are the merits of this allegation before us. We
express no opinion on this allegation and include it solely to provide background for the district
court’s entry of the protective order.
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burden or expense.” Fed. R. Civ. P. 26(c)(1). Such an order may “forbid[] inquiry
into certain matters, or limit[] the scope of disclosure or discovery to certain
matters.” Fed. R. Civ. P. 26(c)(1)(D). As the Advisory Committee Notes say,
“[t]he Committee intends that the parties and the court focus on the actual claims
and defenses involved in the action.” Fed. R. Civ. P. 26 advisory committee’s
note (2000 Amendment). In other words, “the court . . . has the authority to
confine discovery to the claims and defenses asserted in the pleadings, and . . . the
parties . . . have no entitlement to discovery to develop new claims or defenses that
are not already identified in the pleadings.” Id.
The Lieses’ argument is founded on the notion that the proposed cross-
examination would have demonstrated that Dr. Brown was not credible and that he
was biased because of financial considerations (both his own and IRMH’s), in
addition to the doctors’ risk of future litigation. This argument is flawed. The
core of the Lieses’ argument is that United States v. Garcia, 13 F.3d 1464 (11th
Cir. 1994), stands for the proposition that a court abuses its discretion if “a
reasonable jury would have received a significantly different impression of the
witness’ credibility had counsel pursued the proposed line of cross-examination.”
Id. at 1469. The context of this quotation demonstrates the limits of this
argument:
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As previously noted, “[t]he Sixth Amendment does not require unlimited
inquiry into the potential bias of a witness.” The test for the
Confrontation Clause is whether a reasonable jury would have received
a significantly different impression of the witness’ credibility had
counsel pursued the proposed line of cross-examination.
Id. (citation omitted). This civil case contains no Confrontation Clause issue.
Rather, the appropriate inquiry is whether further examination of the practices of
the medical clinic is “relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1). It is not. As the district court and magistrate judge correctly observed,
the proper inquiry is how the doctors interacted with the Lieses during their
treatment at IRMH. What the doctors’ business practices or treatment of other
patients consisted of was irrelevant to determining IRMH’s liability in this case.
The doctors’ reasons for dropping the Lieses as patients following this lawsuit are
similarly irrelevant.
Moreover, the plaintiffs appear to have misinterpreted the scope of the
protective order, claiming that they could not cross-examine Dr. Brown about his
memory with regard to the Lieses’ treatment or how he interacted with the Lieses
on previous occasions. The protective order only limits examination concerning
other patients, the doctors’ business practices, and the doctors’ subsequent
termination of the Lieses as patients; it does not limit examination in any way
regarding how the doctors’ interacted with the Lieses during the course of their
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treatment at IRMH or during any of their previous treatments.17 In short, the
district court did not abuse its discretion in entering a protective order.
IV.
In sum, the Lieses have presented a sufficient factual foundation that, if
credited, would allow a reasonable jury to conclude that medical personnel with
the necessary decision-making authority to bind IRMH were deliberately
indifferent to the Lieses’ rights under the Rehabilitation Act. There is enough here
to warrant a trial on the § 504 RA claim. However, the district court appropriately
granted summary judgment to IRMH on Susan Liese’s negligent infliction of
emotional distress claim, and it did not abuse its considerable discretion in
entering a protective order.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
17
The order states in relevant part:
Based upon the foregoing findings, this Court finds that the [doctors]
are entitled to a protective order. Questions to them should be limited
to the doctors’ interactions and communications with the Plaintiffs.
Any inquiry into business practices of either of these doctors or how
they may have communicated with other patients is strictly prohibited
by this Order. Further, based upon the pleadings thus framed, there
shall be no inquiry into any reasons or issues concerning why these
Plaintiffs may have been terminated as patients by either of these
doctors.
49