Loeffler v. Staten Island University Hospital

RICHARD WESLEY, Circuit Judge,

concurring with Judge Sand.

I agree with my colleagues that there is a genuine issue of material fact as to whether Staten Island University Hospital (the “Hospital”) acted with deliberate indifference towards Robert and Josephine Loeffier in failing to provide federally required sign language interpretation for the Loefflers while Robert was under the Hospital’s care. Consequently, I concur in parts I and IV. I also agree with my colleagues’ reading of New York City’s Human Rights Law as it applies to Bobby and Kristy Loeffier and therefore concur as to part III.

I write to express the view of two members of the panel with regard to the children’s claims under the Rehabilitation Act of 1973 (the “RA”)1 In our view, Bobby and Kristy — by virtue of being compelled to provide sign language interpretation, forced truancy from school, and involuntary exposure to their father’s suffering — are “person[s] aggrieved” within the meaning of the RA and therefore have statutory standing.

As this Court and others have recognized, to gain entry to the courts, non-disabled parties bringing associational discrimination claims need only prove an independent injury causally related to the denial of federally required services to the disabled persons with whom the non-disabled plaintiffs are associated. Bobby and *280Kristy make such claims because they were compelled to provide sign language interpretation for the Hospital and were consequently taken out of school and exposed to their father’s suffering — injuries independent of their parents’ injuries that were causally related to the Hospital’s failure to provide sign language interpretation. Furthermore, even under a more restrictive reading of the RA, Bobby and Kristy have standing to bring suit because they were denied the benefits of adequate sign language interpretation services the Hospital was required to provide.

Under the RA, “[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 assistance.... ” 29 U.S.C. § 794(a). Federal regulation requires that the Hospital, see 28 C.F.R. § 36.104(6), “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities,” 28 C.F.R. § 36.303(c); see also 45 C.F.R. § 84.52(e)-(d) (requiring that the Hospital “establish a procedure for effective communication with persons with impaired hearing for the purpose of providing emergency health care”).

“[A]ny person aggrieved by any act or failure to act by any recipient of Federal assistance” under the RA may bring suit. 29 U.S.C. § 794a(a)(2). This includes the non-disabled. In fact, “the use of such broad language in the enforcement provisions of the [RA] evinces a congressional intention to define standing to bring a private action under [the RA] ... as broadly as is permitted by Article III of the Constitution.” Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (internal quotation marks omitted).

The standing provision of the RA, § 794a(a)(2), is distinct from the provision prohibiting discriminatory conduct on the part of the recipient of federal assistance, § 794(a). Therefore, the type of injury a “person aggrieved” suffers need not be “exclusion] from the participation in, ... denifal of] the benefits of, or ... subjection] to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). As we made clear in Innovative, we interpret the standing provision of the RA as broadly as possible under the Constitution, irrespective of § 794(a). See Innovative Health Sys., 117 F.3d at 47. Cf. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (interpreting the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a)); Clearing House Ass’n v. Cuomo, 510 F.3d 105, 125 (2d Cir.2007), rev’d on other grounds, Cuomo v. Clearing House Ass’n, L.L.C., — U.S. -, 129 S.Ct. 2710, 174 L.Ed.2d 464 (2009) (interpreting the Fair Housing Act).

This does not relieve the person aggrieved of establishing an injury causally related to, but separate and distinct from, a disabled person’s injury under the statute. Indeed, a failure to establish an injury and causation would create a constitutional standing issue, which, as we said in Innovative, is coterminous with statutory standing here. Innovative Health Sys., 117 F.3d at 47. In our view, Bobby and Kristy need only establish that each suffered an injury independent from their parents that was causally related to the Hospital’s failure to provide services to their parents.

Bobby and Kristy — at least for standing purposes' — have established three such injuries. First, Bobby and Kristy were forced to provide sign language interpretation. They were required to fill the gap left by the Hospital’s failure to honor its *281obligations under the statute. Second, because they had to provide interpretation— and be on-call via pager twenty-four hours a day — they missed school. Third, because they were required to attend to their father in order to provide this service, they were needlessly and involuntarily exposed to them father’s condition and thus unnecessarily placed at risk for emotional trauma because of their young age.2 This is especially true for then-thirteen-year-old Bobby, who was forced to witness his father suffer a stroke and was then required to relay the doctor’s assessment of his father’s condition to his mother.

Bobby’s and Kristy’s claims are distinct from the associational discrimination claims rejected by other courts. In Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., the court found that the plaintiffs alleged injury — being “deprived ... of her father’s companionship for a period of five years” — was not an injury under Title II of the Americans with Disabilities Act3 (the “ADA”) because she “ha[d] not been denied access to or participation in any of the public services covered by Title II [of the ADA].”4 150 Fed.Appx. 424, 425, 427 (6th Cir.2005). Bobby and Kristy do not claim that the Hospital’s failure to provide a sign language interpreter injured them by preventing their father from coming home earlier or from providing care and support. Instead, they claim that they were forced to provide a service as a result of the Hospital’s failure to honor its federally imposed obligation.

In Simenson v. Hoffman, the court held that the parents lacked standing to bring a claim under the ADA for associational discrimination, allegedly based on the discrimination by a doctor of the parents’ disabled child, because the parents “were not at the medical center for any purpose other than to seek treatment for” their child. No. 95 C 1401, 1995 U.S. Dist. LEXIS 15777, at *16, 1995 WL 631804, at *6 (N.D.I11. Oct. 24, 1995). In this case, however, Bobby and Kristy were at the Hospital for the additional purpose of attending their father and mother in order to provide services that the Hospital was required to provide. Absent the Hospital’s failure to provide sign language interpreters — the alleged statutory violation at issue — Bobby likely would not have been present to witness his father have a stroke in the post-operating room, neither Bobby nor Kristy would have been responsible for translating medical terms to their mother that were beyond their comprehension, and neither Bobby nor Kristy would have been compelled to miss school in order to provide sign language interpretation. If Bobby and Kristy had not known sign language but instead had paid for an interpreter to resolve the problem created by the Hospital’s failure to meet their parents’ needs would there be any question they would have a claim? What is different when two children are pressed into service by the Hospital?

In Innovative, we cited favorably the preamble to 28 C.F.R. § 35 which acknowledges that the regulation “ ‘was in*282tended to ensure that entities such as health care providers, employees of social service agencies, and others who provide professional services to persons with disabilities are not subjected to discrimination because of their professional association with persons with disabilities.’ ” 117 F.3d at 47 n. 14 (quoting 28 C.F.R. pt. 35, app. A at 470) (emphasis omitted). We recognized that these regulations and their organic statutes are meant to protect professionals and healthcare entities from being discriminated against — i.e., injured — by virtue of their association with disabled persons. This injury need not necessarily be limited to an inability to provide services to disabled persons. We believe United States v. City of Charlotte, N.C., 904 F.Supp. 482 (W.D.N.C.1995), illustrates this. In that case, the court held that a contractor had standing to sue under the RA for the City of Charlotte’s refusal to permit the contractor to construct housing for people suffering from AIDS. Id. at 486. The court determined that the denial of the permit sufficiently injured the contractor by placing in jeopardy the contractor’s ability to secure federal funding and “caused [the contractor] to incur additional construction costs and expenses.” Id.

Bobby and Kristy have suffered injuries even more direct than those of the contractor. Indeed, it seems illogical that we would protect professions and healthcare entities from injuries due to their association with disabled persons but deny that protection to non-professional family members of disabled folks who are discriminated against because of a denial of services.5

In this case, two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital. Two children had to step in and do what the Hospital was unable or refused to do — at least until ordered to do so by a federal district court.

But even if Bobby and Kristy Loeffler were required under the RA to prove they were excluded from participation in, denied the benefit of, or discriminated against under a federally assisted program, they still have standing. As stated above, federal regulation requires that the Hospital, see 28 C.F.R. § 36.104(6), “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities,” 28 C.F.R. § 36.303(c). The Hos*283pital failed to provide sign language interpreters and consequently relied on Bobby and Kristy' — thirteen and seventeen years old at the time, respectively — to translate between the Hospital staff and Robert and Josephine. As Bobby testified, the Hospital relied on the children to translate complicated medical terms that the children were not capable of understanding. In other words, the children were — by their own admission — incompetent to provide adequate sign language interpretation to translate these terms between the parties or for themselves. As a result, they and their mother were denied the service of adequate sign language interpretation to understand their father’s medical complications and the procedures he underwent.6

There are, of course, issues of fact in this ease. There is dispute as to whether the children were forced to translate for the hospital, for example, or whether the requests for interpreters were properly made. We are sending the case to trial to resolve such disputes. But these issues go to the extent of the injury suffered and the calculation of damages, not whether or not the statute itself affords them the right to claim that injury. A trial in this case will center on whether rights were violated, not if those rights exist. Once we have decided that they fall within the purview of this statute, it is then up to the jury to decide if they believe the children’s story.

Finally, a word or two is in order with regard to the concerns expressed by our dissenting colleague. The dissent expresses the view that our determination that Bobby and Kristy are “person[s] aggrieved” within the meaning of the RA will open the courts to all manner of claims by friends and relatives of disabled persons “provid[ing] additional or complementary services to patients” such as “[a] friend lifting] a wheelchair up a few stairs when there is no ramp,” “a relative preparing] a gluten-free meal that a hospital lacks resources to provide,” “a sister staying] up all night to cheer the patient and translate from Dutch as needed, and suffering] the trauma of a flatlining.” (emphasis added).

By grouping Bobby’s and Kristy’s claims with these examples the dissent seriously misrepresents the children’s claims. While the dissent’s hypothetical list of horrors may have some simplistic appeal it has no real correlation to the injuries presented here. Two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital. Two children did what the Hospital was unable or refused to do — at least until ordered to do so by a federal district court. Two children were forced to explain to their hearing impaired mother why their father was near death in terms they did not or could not understand. If our dissenting brother thinks that what Bobby and Kristy were forced to do is a “complementary service” — his phrase not ours — then our colleague is sadly mistaken. We see this case as materially different in kind. It is not the dawn of never-ending liability for the Hospital, it is what Congress required — a link to the hearing world.

Accordingly, we reverse as to Bobby’s and Kristy’s claims and remand them to the district court for further proceedings in accordance with this decision.

. Pub.L. No. 93-112, 87 Stat. 355, codified in relevant part at 29 U.S.C. §§ 794-794a.

. Bobby testified that he attempted suicide and according to a psychiatric evaluation suffered from depression linked to his experience as Robert’s interpreter during the 1995 surgery.

. Pub.L. No. 101-336, 104 Stat. 327 (1990), codified as 42 U.S.C. §§ 12101 to 12213.

. Title II of the ADA confers "[t]he remedies, 4 procedures, and rights set forth in [29 U.S.C. § ]794a ... to any person alleging discrimination on the basis of disability” under 42 U.S.C. § 12132, which contains language nearly identical to § 794. 42 U.S.C. § 12133. For the sake of argument, I will assume that § 12133 confers the same associational discrimination rights to non-disabled litigants as § 794a(a)(2).

. Some courts have gone even farther in finding an injury sufficient to bring an associational discrimination claim. In Spector v. Norwegian Cruise Line Ltd., the court held that prospective non-disabled passengers of a cruise ship who intended to travel and room with disabled persons had standing to bring an associational discrimination claim under the ADA where the prospective non-disabled passengers were injured by "forcfing] them to pay more to enjoy the privilege of staying in the same rooms with their [disabled] traveling companions.” No. Civ.A. H-00-2649, 2002 WL 34100212, at *15 (S.D.Tex. Sept.9, 2002), rev’d and remanded on other grounds, 545 U.S. 119, 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005). In Niece v. Fitzner, the court held that the plaintiff, a non-deaf prisoner, had stated a claim upon which relief could be granted where he alleged associational discrimination by the prison for not providing services for him to speak with his deaf fiancee. 922 F.Supp. 1208, 1216 (E.D.Mich.1996). In Johanson v. Huizenga Holdings, Inc., the court, without finding an independent injury, held that the "father of the disabled minor does have standing to sue under the ADA by virtue of his relationship with his son, an individual with a known disability.” 963 F.Supp. 1175, 1176 (S.D.Fla.1997).

We need not go as far as these cases because Bobby and Kristy can demonstrate injuries more independent than those of the plaintiffs in Niece and Johanson and also more particular, acute, and overt than those in Spector. They can point to particular services that they were forced to provide as a direct result of the Hospital's dereliction.

. If Bobby and Kristy had to prove that they were denied services that should have been provided to a qualified disabled person under the RA, that view would effectively eviscerate any right to an associational discrimination claim under the RA and overturn Innovative.