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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17061
________________________
D.C. Docket No. 1:15-cv-21960-MGC
HAROLD CRANE,
Plaintiff - Appellant,
versus
LIFEMARK HOSPITALS, INC.,
LIFEMARK HOSPITALS OF FLORIDA, INC.,
d.b.a. PALMETTO GENERAL HOSPITAL,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 2, 2018)
Before ED CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, * District
Judge.
*
The Honorable Eleanor L. Ross, United States District Judge for the Northern District of
Georgia, sitting by designation.
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ROSS, District Judge:
Plaintiff Harold Crane, who is deaf, brought this action against Defendants
Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital (“PGH”), and
its parent organization, Lifemark Hospitals, Inc., for their alleged failure to provide
an American Sign Language (“ASL”) interpreter for Crane to effectively
communicate during an involuntary commitment evaluation. Specifically, Crane
alleges the defendants violated Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (the “RA”) and Title III of the Americans with Disabilities Act, 42
U.S.C. § 12181, et seq. (the “ADA”). The district court granted the defendants’
motion for summary judgment.
At issue in this appeal is whether Crane was afforded an equal opportunity,
through an appropriate auxiliary aid, to effectively communicate medically
relevant information during his involuntary commitment evaluation. After a
thorough de novo review, and viewing the facts in the light most favorable to
Crane as the non-moving party, we reverse the district court’s grant of summary
judgment in favor of the defendants. Specifically, genuine issues of material fact
exist as to whether Crane was able to effectively communicate medically relevant
information and whether the hospital personnel were deliberately indifferent.
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BACKGROUND
Crane is profoundly deaf and suffers from chronic depressive and anxiety
disorders. On July 17, 2011, the Miami-Dade Police Department responded to a
call that Crane was suicidal and transported Crane to PGH for an involuntary
commitment examination pursuant to the Baker Act, Fla. Stat. § 394.451, et seq. 1
During a Baker Act evaluation, a health care provider merely determines whether
the patient is a danger to himself or others and does not engage in complex mental
health treatment or diagnosis.
Upon arrival at PGH, Crane was treated for alcohol related issues, including
suspected consumption of rubbing alcohol. The next day, July 18, 2011, Crane
was admitted to the hospital for medical reasons stemming from his alcohol
intoxication. Dr. Marjorie Caro evaluated Crane on July 18, 2011, pursuant to the
Baker Act, and she determined Crane was not a threat to himself or others. During
this Baker Act evaluation, Dr. Caro communicated with Crane through written
1
The Baker Act allows an authorized person, such as a police officer, to initiate an involuntary
examination of an individual whom the officer believes may have a mental illness, is
substantially likely to cause serious bodily harm to himself or others, and refuses a voluntary
examination or is unable to understand the need for an examination. Fla. Stat. § 394.463. The
Baker Act receiving facility, where the involuntary examination takes place, has 72 hours within
which to determine whether to release the individual into the community, admit him voluntarily
for psychiatric care, or petition a court to commit him involuntarily for psychiatric care. Id.
3
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notes and through her basic sign language skills.2 On July 19, 2011, Crane
remained in the hospital.
On July 20, 2011, an ASL interpreter was present for the first time during
Crane’s hospital stay to assist Dr. Caro in communicating with Crane. Dr. Caro
discharged Crane from PGH later that day. 3 Crane contends he repeatedly asked
for a sign language interpreter throughout his entire hospital stay.
PROCEDURAL HISTORY
Crane filed this lawsuit against the defendants seeking monetary damages
and injunctive relief pursuant to the RA and injunctive relief pursuant to the ADA.
Specifically, Crane alleged that defendants violated the RA and ADA when they
did not provide him with an ASL interpreter during his hospital stay, and thus,
failed to ensure effective communication. The defendants filed a motion for
summary judgment in the district court, arguing they did not violate the RA or
ADA because they provided Crane with sufficient auxiliary aids for effective
communication.
The district court granted summary judgment for the defendants, finding,
inter alia, (1) there was no genuine issue of material fact that the defendants’ use
2
Dr. Caro testified that she learned basic sign language skills in order to communicate with her
developmentally disabled daughter who was nonverbal for five years. She used these basic sign
language skills with her daughter and also when Dr. Caro was unable to speak for a period of
nine months because of a medical condition.
3
Upon release from PGH, Crane resumed drinking alcohol and was admitted into another
hospital that same evening.
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of written notes and basic sign language interpretation was ineffective
communication, and (2) there was no genuine issue of material fact that the
hospital personnel were deliberately indifferent.
Crane timely appealed the district court’s grant of summary judgment,
arguing the district court incorrectly determined there was no genuine issue of
material fact as to effective communication and deliberate indifference.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo; therefore,
viewing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in their favor. Silva v. Baptist Health S. Fla.,
Inc., 856 F.3d 824, 831 n.4 (11th Cir. 2017) (citing Liese v. Indian River Cty.
Hosp. Dist., 701 F.3d 334, 341-42 (11th Cir. 2012)). 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).
DISCUSSION
Section 504 of the RA states that “[n]o 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
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assistance . . . .” 29 U.S.C. § 794(a). Title III of the ADA prohibits public
accommodations, including privately operated hospitals, from discriminating
against individuals on the basis of disability in the full and equal enjoyment of
goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C.
§§ 12181(7)(f), 12182(a).
ADA and RA claims are governed by the same substantive
standard of liability. See, e.g., Cash v. Smith, 231 F.3d 1301, 1305
(11th Cir. 2000). To prevail, a disabled person must prove that he or
she was excluded from participation in or denied the benefits of the
hospital’s services, programs, or activities, or otherwise was
discriminated against on account of her disability. Shotz v. Cates, 256
F.3d 1077, 1079 (11th Cir. 2001). Such exclusion, denial, or
discrimination occurs when a hospital fails to provide “appropriate
auxiliary aids and services” to a deaf patient, or a patient’s deaf
companion, “where necessary to ensure effective communication.” 28
C.F.R. § 36.303(c)(1).
Silva, 856 F.3d at 830-31 (emphasis in original).
As we have previously held, the Court’s standard inquiry under the ADA
and RA is
simply to examine whether the hospital provided the kind of auxiliary
aid necessary to ensure that a deaf patient was not impaired in
exchanging medically relevant information with hospital staff. To be
ineffective communication, it is sufficient if the patient experiences a
real hindrance, because of [his] disability, which affects [his] ability to
exchange material medical information with [his] health care
providers. This standard is consistent with the requirement that
hospitals afford a level of communication to a deaf patient about
medically relevant information that is substantially equal to that
afforded to non-disabled patients.
Id. at 835 (emphasis in original).
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“[P]roving the failure to provide a means of effective communication, on its
own, permits only injunctive relief. To recover monetary damages, a disabled
person must further show that the hospital was deliberately indifferent to her
federally protected rights.” Id. at 831 (internal citations omitted).
After reviewing the record in the light most favorable to Crane, we hold that
summary judgment was improper as to both effective communication and
deliberate indifference. As to effective communication, the district court did not
correctly evaluate whether the defendants’ alleged failure to offer an appropriate
auxiliary aid impaired Crane’s “ability to exchange medically relevant information
with” Dr. Caro. Id. (emphasis in original). Instead, the district court improperly
determined that Dr. Caro’s medical record notes sufficiently showed that the
defendants met their duty pursuant to the Baker Act to conduct an evaluation of
Crane, and thus, improperly concluded that there was effective communication.
However, the focus of the Court’s inquiry, as clarified by Silva, is not whether the
medical personnel met the basic requirements of the Baker Act or the medical
personnel’s ultimate decisions, but instead, is on Crane’s equal opportunity to
communicate medically relevant information to hospital staff.
“[T]he task of determining whether an entity subject to the RA has provided
appropriate auxiliary aids where necessary is inherently fact-intensive [and] [i]t is
precisely because of this fact-intensive inquiry that an effective-communication
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claim often presents questions of fact precluding summary judgment.” Id. at 836
(internal citation omitted). Applying that standard here and viewing the evidence
in the light most favorable to Crane, a jury could find that Crane was not able to
exchange medically relevant information as a hearing patient would have been.
Specifically, Crane declared in an affidavit that
I was never able to thoroughly express my feelings [about] the
traumas I have experienced in my life . . . during any of the doctor’s
evaluations and daily interactions with the Hospital’s nurses. For
example[,] besides writing down that I was depressed, I was never
provided the opportunity during my hospitalization to go into detail[]
with the Hospital’s staff, nurses, and doctors about why I was
depressed. I was only ever able to write down that those were the
issues that bothered me but was never able to go into detail and
thoroughly explain my feelings with regard[] to each of the traumas I
have experienced.
[Doc. 67-5 at ¶ 14]. Additionally, Dr. Caro’s notes from her July 20, 2011
evaluation state
[w]e have been spending time trying to explain to him first by writing
and communication going back and forth explaining the situation of
the Baker Act. Since he was not able to understand the whole
process, we were able to get an interpreter with [the] name of
Stacy[. She] was very helpful to communicate with him.
[Doc. 57-13 at 15]. At a bare minimum, this provides evidence that Crane could
not understand and suffered a real hindrance due to his disability to provide
material medical information with his health care provider. Thus, a genuine issue
of material fact exists as to the question of whether there was effective
communication. Therefore, we conclude that Crane’s claims are suitable for a
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finder of fact. We reverse the district court’s order granting summary judgment to
the defendants on the issue of effective communication and remand for further
proceedings.
Turning now to the issue of deliberate indifference, in order to prove
deliberate indifference, the disabled person must establish “that the [h]ospital’s
failure to provide appropriate auxiliary aids was the result of intentional
discrimination.” Liese, 701 F.3d at 344 (emphasis omitted). Put differently, “a
plaintiff must show that the defendant ‘knew that harm to a federally protected
right was substantially likely’ and ‘failed to act on that likelihood.’” McCullum v.
Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1147 (11th Cir 2014)
(emphasis omitted) (quoting Liese, 701 F.3d at 344). Thus, to establish his claim
for a violation of the RA entitling him to damages, Crane must show ineffective
communication done with knowledge that it was substantially likely to occur.
The district court found the defendants were not deliberately indifferent
because the defendants effectively communicated with Crane, no evidence existed
that the hospital staff “disrespected” Crane or his impairment, and the hospital had
a “comprehensive policy on auxiliary aids and services, on which all staff was
trained.” [Doc. 99 at 8]. However, in Dr. Caro’s July 20 report, she wrote that
Crane “was not able to understand the whole [Baker Act] process” using written
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notes and that “he had difficulty in expressing himself.”4 [Doc. 57-13 at 15].
While Dr. Caro’s notes also say that the interpreter “was very helpful to
communicate with him,” Crane testified that Dr. Caro and the hospital staff did not
use an interpreter to explain the Baker Act process, his diagnosis, his medication,
or his treatment options, and that the only thing the interpreter communicated was
that he was being discharged. [Docs. 57-13 at 15, 67-2 at 57, 64]. We are required
to credit Crane’s testimony as the non-movant over Dr. Caro’s notes. Feliciano v.
City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
Reviewing the record in the light most favorable to Crane as the non-
movant, Crane has presented sufficient evidence of deliberate indifference to
withstand summary judgment. Consequently, we reverse and remand for
consideration of the issue of deliberate indifference as well.
CONCLUSION
We REVERSE the district court’s order granting summary judgment to the
defendants on the issues of effective communication and deliberate indifference
and REMAND for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
4
In her deposition, Dr. Caro also stated that after her initial assessment she believed Crane
“would benefit if somebody [came] and explain[ed] a little bit better the discharge, the
medication, the treatment choices” and that an interpreter would have helped with that
explanation and helped Crane, “if he ha[d] any other questions[,] to express himself.” [Doc. 95-
1 at 70-71].
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