Juech v. Children's Hosp. & Health Sys., Inc.

353 F.Supp.3d 772

Alissa JUECH, Plaintiff,

v.CHILDREN'S HOSPITAL AND HEALTH SYSTEM, INC. and Children's Hospital of Wisconsin, Inc., Defendants.

Case No. 15-CV-1482

United States District Court, E.D. Wisconsin.

Signed November 2, 2018

Eric Mark Baum, Andrew Rozynski, Eisenberg & Baum LLP, New York, NY, Mary C. Flanner, Nola J. Hitchcock Cross, Cross Law Firm SC, Milwaukee, WI, for Plaintiff.

Michael L. Johnson, Otjen Gendelman Zitzer Johnson & Weir SC, Waukesha, WI, for Defendants.

DECISION AND ORDER

WILLIAM E. DUFFIN, U.S. Magistrate Judge

1. Facts and Procedural History

Plaintiff Alissa Juech has been deaf since birth and communicates primarily through American Sign Language (ASL). (ECF No. 46, ¶ 1.) On the morning of February 5, 2015, Juech took her approximately 3-month-old son, B.J., to the emergency department of Children's Hospital of Wisconsin. (ECF No. 46, ¶ 35.) Juech's mother arrived at the hospital at roughly the same time, and Juech asked her to request the hospital provide her with a sign language interpreter. (ECF No. 46, ¶ 36.) Juech had been to Children's Hospital roughly 10 times before and had requested a sign language interpreter on each of those prior visits. (ECF No. 46, ¶ 28.)

It is Children's Hospital's policy to provide interpreters upon request, and it informs patients and families of the availability of interpreters. (ECF No. 46, ¶¶ 17-19, 21.) It is the hospital's policy to obtain an in-person interpreter if one is available. (ECF No. 46, ¶ 13.) If an in-person interpreter is not available, the hospital will provide a sign-language interpreter through video remote interpreting (VRI). (ECF No. 46, ¶ 22.)

Children's Hospital initially used VRI—essentially a live web cam—to communicate with Juech and to obtain B.J.'s medical history and chief complaints. (ECF No. 46, ¶ 39.) According to Juech, hospital staff did not know how to set up or use the VRI. (ECF No. 51, ¶ 120.) According to Juech, "[t]he VRI device was rarely utilized during B.J.'s treatment because Children's Hospital staff did not know how to set it up or use it." (ECF No. 51, ¶ 121.) She alleges that "[t]he VRI device took several minutes to start up ... [and] froze constantly." (ECF No. 510, ¶ 121.) In one instance, Juech used the VRI device while breastfeeding her child, a task she found "exceedingly difficult ... because she was forced to stand in order to see the machine and sign at the same time, all while holding her child." (ECF No. 51, ¶ 127.) The hospital then used an in-person interpreter while B.J. continued to be treated in the emergency department; this interpreter also provided services after B.J. was moved to a nursing floor. (ECF No. 46, ¶ 43.) Hospital staff informed Juech that B.J. may have a respiratory virus and that he should stay overnight for observation. (ECF No. 46, ¶¶ 44-45.)

Later that evening Juech's husband arrived at the hospital and the Jueches were informed that B.J. would be moved to the pediatric intensive care unit. (ECF No. 46, ¶ 50.) This discussion occurred with Juech using an interpreter through VRI, and her husband does not recall the VRI posing any difficulties or Juech having any questions or concerns that were left unresolved. (ECF No. 46, ¶¶ 50-51.)

At other points during B.J.'s hospitalization Juech communicated with medical providers in writing—for example, by way of messages typed on a phone and then shown to the recipient, or by handwritten notes. (ECF No. 46, ¶¶ 68-71.)

An in-person sign language interpreter was present when B.J. was discharged from the hospital on February 7, 2015. (ECF No. 46, ¶¶ 60-61.)

Two years later, in February of 2017, Juech returned to Children's Hospital with her four-month-old daughter, A.J. (ECF No. 46, ¶ 76.) The hospital provided her with an interpreter through VRI. (ECF No. 46, ¶ 78.) Hospital staff obtained A.J.'s medical history from Juech, although Juech does not recall if it was done using the VRI. (ECF No. 46, ¶¶ 79-83.) A physician later obtained A.J.'s medical history from Juech by way of the VRI. (ECF No. 46, ¶ 92.) Although Juech does not recall how it was communicated to her, she understood that A.J. would be admitted to the hospital for observation. (ECF No. 46, ¶ 88.) Juech requested an in-person interpreter for the following day (ECF No. 46, ¶ 88), stating that the VRI does not work for her (ECF No. 46, ¶ 94) and that she preferred in-person interpreters for questions, rounds, and especially discharge instructions (ECF No. 46, ¶ 96). An in-person interpreter was provided at A.J.'s discharge. (ECF No. 46, ¶ 107.)

Juech brought this action alleging that Children's Hospital and Health System, Inc. and Children's Hospital of Wisconsin, Inc. (collectively, "defendants" or "Children's Hospital") violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. ; § 504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794 ; Wis. Stat. § 106.52 ; and the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18116(a). (ECF No. 1; see also ECF No. 28 (amended complaint).) Specifically, Juech alleges that the defendants "failed to provide her with the auxiliary aids and services required to enable effective communication during the hospitalizations of her two infant children in Children's facilities." (ECF No. 45 at 1.)

2. Relevant Law

2.1. Americans with Disabilities Act

Under the Americans with Disabilities Act, "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). A hospital is a place of public accommodation. 42 U.S.C. § 12181(7)(F).

A hospital discriminates against a disabled person if it fails

to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.

42 U.S.C. § 12182(b)(2)(A)(iii) ; see also 28 C.F.R. § 36.303(a) and (c)(1) (stating that a hospital must "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities").

The term "auxiliary aids and services" includes ... [q]ualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.

28 C.F.R. § 36.303(b)(1) ; see also 42 U.S.C. § 12103.

The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

28 C.F.R. § 36.303(c)(1)(ii). In other words, "[w]hether 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." Liese v. Indian River Cty. Hosp. Dist. , 701 F.3d 334, 343 (11th Cir. 2012).

Thus, a hospital is not necessarily required to provide whichever auxiliary aid a qualified person requests. Majocha v. Turner , 166 F.Supp.2d 316, 323 (W.D. Pa. 2001) ; Godbey v. Iredell Mem'l Hosp., Inc. , No. 5:12-cv-00004-RLV-DSC, 2013 WL 4494708, at *7, 2013 U.S. Dist. LEXIS 117129 at *23-24 (W.D.N.C. Aug. 19, 2013) (citing O'Neil v. Tex. Dep't of Criminal Justice , 804 F.Supp.2d 532, 538 (N.D. Tex. 2011) ); see also Biondo v. Health , No. 15-CV-362-FPG-LGF, 2018 WL 1726533, at *3, 2018 U.S. Dist. LEXIS 60789 at *9 (W.D.N.Y. Apr. 10, 2018) ("Patients with disabilities are not entitled to the auxiliary aid of their choice unless it is necessary to ensure effective communication.") (citing Bravin v. Mount Sinai Med. Ctr. , 186 F.R.D. 293, 302 (S.D.N.Y. 1999) ). "While qualified sign-language interpreters may be the only effective communication option for some, there is no per se rule that such interpreters are necessary, and other accommodations are often sufficient." Godbey , 2013 WL 4494708, at *6, 2013 U.S. Dist. LEXIS 117129 at *20-21 (citing Bd. of Educ. v. Rowley , 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (holding that sign-language interpreters are not required when lip reading, or by extension other accommodations, are sufficient); Proctor v. Prince George's Hosp. Ctr. , 32 F.Supp.2d 820, 827 (D. Md. 1998...