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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 16-10980, 16-13327
________________________
D.C. Docket No. 9:13-cv-80685-DTKH
SANDRA SUNDERLAND,
BODIL TVEDE,
JAMES LIESE,
SUSAN LIESE,
CAROLANN DONOFRIO,
JOHN DONOFRIO,
JACQUELINE GLUCKMAN,
BARBARA DRUMM,
JOHN VIRGADAULA,
THE FLORIDA ASSOCIATION OF THE DEAF, INC.,
Plaintiffs - Appellants,
versus
BETHESDA HOSPITAL, INC.,
d.b.a. Bethesda Memorial Hospital,
d.b.a. Bethesda Hospital West,
BETHESDA HEALTH, INC.,
Defendants - Appellees.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 27, 2017)
Before WILSON and BLACK, Circuit Judges, and RESTANI, ∗ Judge.
WILSON, Circuit Judge:
Nine deaf hospital patients and the Florida Association of the Deaf 1 appeal
the district court’s dismissal at the summary judgment stage of their disability
discrimination claims against Bethesda Hospital. The patients and the Association
allege that Bethesda failed to provide the patients with the basic accommodation
required for a deaf individual to equally access hospital services: an interpretive
aid that allows the individual to communicate effectively with hospital staff. The
patients seek compensatory damages under Section 504 of the Rehabilitation Act,
and both the patients and the Association seek injunctive relief under Section 504
and the Americans with Disabilities Act (ADA).
After careful review of the parties’ briefs and the record, and having had the
benefit of oral argument, we affirm in part and reverse in part. We reverse and
remand the district court’s grant of summary judgment to Bethesda on Sandra
∗
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
1
The Association is a membership organization which promotes the interests of hearing-
impaired individuals in Florida.
2
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Sunderland’s, James Liese’s, Susan Liese’s, John Virgadaula’s, and Jacqueline
Gluckman’s Section 504 claims for compensatory damages. We also reverse and
remand the district court’s dismissal on standing grounds of Ms. Gluckman’s and
the Association’s Section 504 and ADA claims for injunctive relief. We affirm the
remainder of the district court’s findings.
I. BACKGROUND 2
In 2006, Bethesda entered a settlement agreement with the Department of
Justice after a complaint was filed with the Department alleging discrimination
against deaf patients. See Bethesda Mem’l Hosp., D.J. No. 202-18-178 (Settlement
Agreement May 5, 2006), https://www.ada.gov/bethesda.htm. The agreement
required Bethesda to take certain steps to ensure effective communication with
deaf patients. See id. For several years after the agreement, Bethesda primarily
relied on in-person interpreters to accommodate deaf patients. But in 2011 it
began using a Video Remote Interpreting device (VRI) to communicate with deaf
patients. The VRI allows patients to videoconference with an interpreter who is
located remotely.
Bethesda has a written policy for the VRI:
For the purpose of rendering emergency health care, the
Hospital provides . . . [a VRI] Computer on Wheels. . . .
The [VRI] . . . is stored in the Nursing Supervisor’s
2
In this section, we construe in the light most favorable to the patients the facts that are
relevant to their compensatory-damages claims. See McCullum v. Orlando Reg’l Healthcare
Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014).
3
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office and will be brought to the area requesting the unit
by the Nursing Supervisor. . . . In those circumstances
where VRI does not accommodate patient need[s,] the
nursing administrative supervisor and[/]or risk
management will be contacted to assist with providing an
alternative communication mode such as [an in-person
interpreter].
Bethesda’s nurses and Nursing Supervisors administer this policy, while
Bethesda’s Vice President for Risk Management ensures compliance with the
policy. A deaf patient’s nurse is responsible for determining whether to provide
the patient the VRI or a less-substantive interpretive aid. If the nurse finds that the
VRI is necessary, the nurse requests the VRI and the on-duty Nursing Supervisor
transports the VRI to the patient’s room. Once the VRI is in the patient’s room,
the nurse is responsible for assessing whether the VRI is accommodating the
patient’s needs. To address deficiencies with the VRI, the nurse can take
corrective measures, such as obtaining assistance from technical-support personnel
or communicating through written materials. In most situations, only if a nurse
finds that the VRI is not accommodating the patient will the patient be able to
access an in-person interpreter. When a nurse finds that an in-person interpreter is
needed, the Nursing Supervisor is tasked with seeking approval from a hospital
administrator for the interpreter. Other than transporting the VRI upon a nurse’s
request and seeking approval for an in-person interpreter, the Nursing Supervisor
has limited involvement with the process for accommodating a deaf patient.
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Soon after Bethesda started using the VRI, various hospital personnel
received reports of patient difficulties with the VRI. Dorothy Kerr, one of
Bethesda’s Nursing Supervisors, and Gary Ritson, Bethesda’s Vice President for
Risk Management, were informed of a few instances in which the VRI
malfunctioned. Ritson also was informed that several patients refused to use the
VRI and demanded an in-person interpreter. In response to this information,
Ritson posted a sign in the hospital stating that patients who prefer an in-person
interpreter rather than the VRI must pay for the interpreter. Finally, the
Association met with Bethesda’s President to relay certain Association members’
complaints about the VRI.
The patients in this case, Sandra Sunderland, Barbara Drumm, James Liese,
Susan Liese, John Virgadaula, Jacqueline Gluckman, Carolann Donofrio, John
Donofrio, and Bodil Tvede, each visited Bethesda after Bethesda began using the
VRI.
A. Sandra Sunderland
Ms. Sunderland, who is around 70 years old, had a heart attack in 2012 and
spent two weeks at Bethesda. During the stay, Ms. Sunderland had a cardiac
catheterization procedure. Ms. Sunderland asked a nurse for an in-person
interpreter prior to the procedure, but the nurse denied the request. And the nurse
did not provide Ms. Sunderland with the VRI. Consequently, the doctor who
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performed the procedure used neither the VRI nor an in-person interpreter when
communicating with Ms. Sunderland prior to the procedure. The doctor relied
solely on gesturing. Ms. Sunderland in her deposition reported that she was
confused about the procedure and was “scared to death” in the moments leading up
to it: “[Hospital staff] didn’t tell me anything. . . . [N]othing was explained. I was
just laying there scared to death and . . . I was like, ‘Huh, what’s going on here?
Where is my interpreter?’”
While recovering in the hospital from the procedure, Ms. Sunderland
developed a hematoma and was sent to the intensive care unit. She was placed on
a ventilator and was sedated for a few days. When she woke up, a nurse provided
her information about her medication and its side effects, but her comprehension of
the information was “questionable.”
On the fifth day of her admission, Ms. Sunderland again asked a nurse for an
in-person interpreter. The nurse denied the request but afforded Ms. Sunderland
access to the VRI. For the remainder of Ms. Sunderland’s hospital stay, the VRI
was used intermittently. The VRI, however, frequently froze and was blurry. Ms.
Sunderland’s son complained to a nurse about these issues and requested an in-
person interpreter. No in-person interpreter was provided.
Ms. Sunderland lives near Bethesda. She suffers from several heart
conditions and has a depressive disorder. A medical expert testified in a deposition
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that Ms. Sunderland, due to her heart conditions, “eventually will go back to the
hospital,” but “[t]he timing of that is unpredictable.”
B. Barbara Drumm
Ms. Drumm is around 80 years old and visited Bethesda once in 2012 and
once in 2013. In 2012, she was admitted to Bethesda for multiple days for back
pain. During the first few days of her stay, hospital staff used pen and paper to
communicate with her and the final day, used the VRI. Ms. Drumm complained
during her stay about the limited access she had to hospital staff, but she did not
otherwise complain about communication difficulties. Ms. Drumm’s 2013 visit to
Bethesda was for chest pain. She communicated with pen and paper and the VRI
during the visit.
Ms. Drumm lives near Bethesda and is a member of the Association. She
intends to return to Bethesda at some point, but she has no procedures scheduled
and her health is stable.
C. James and Susan Liese
James and Susan Liese are married and are both in their 80s. Mr. Liese
visited Bethesda three times in 2011, and Mrs. Liese accompanied him on all three
occasions.3
3
Mrs. Liese was not a patient at Bethesda. Her claims are based on her visits to Bethesda
as Mr. Liese’s “companion[].” See 28 C.F.R. § 36.303(c).
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Mr. Liese first visited the hospital for an appointment in preparation for a
hernia surgery. The Lieses asked a nurse for an in-person interpreter, but the nurse
ignored the request and communicated with the Lieses by pen and paper and by
trying to read their lips.
The Lieses returned to Bethesda a few days later for Mr. Liese’s hernia
surgery. Mr. Liese requested an in-person interpreter, but his nurses opted to use
the VRI. The nurses, however, used the VRI only intermittently, and when they
did use the VRI, it frequently malfunctioned. The VRI worked at times but was
often blurry or failed to activate. Also, Mr. Liese has macular degeneration, so he
could not see the VRI screen clearly, and on at least one occasion, he and Mrs.
Liese were unable to comprehend the remotely located interpreter’s signing. Mr.
Liese, with the assistance of Mrs. Liese, e-mailed a representative from the
Association shortly after his surgery explaining some of the communication
difficulties he and his wife faced at Bethesda:
I requested [a] live interpreter . . . on my arrival[, but] I
was told they cannot find [a] live interpreter prior to the
surgery. The interpreter on the VRI [w]as not very
good[.] . . . [M]y wife . . . [could] not understand what
[was] going on and the VRI interpreter did no[t] sign
then [my nurse’s] voice stop[ped] and the VRI
[interpreter started] sign[ing,] which [was] not very clear.
Then my wife told the VRI interpreter [that the
interpreter] sh[ould] sign same time [as] the [n]urse.
[The] VRI inter[]preter said she ha[d a] problem . . .
get[ting] the [nurse’s] voice in her earmicrophone . . . . It
[was also] hard for me to see . . . the VRI.
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The Lieses returned to Bethesda in late 2011 for Mr. Liese to receive
treatment for a blood clot. Mr. Liese asked his nurses for an in-person interpreter,
but the nurses denied the request and used the VRI to communicate with the
Lieses. The VRI was blurry and repeatedly froze, and while the nurses were
preparing Mr. Liese for discharge, one nurse struggled to operate the VRI and
commented on the VRI’s malfunctioning.
The Lieses live near Bethesda and are members of the Association. Mr.
Liese had a second hernia surgery in 2013 and suffers from a number of medical
conditions. Mrs. Liese also suffers from several conditions. The Lieses’
conditions are stable.
D. John Virgadaula
Mr. Virgadaula is in his early 70s and visited Bethesda once in 2014 for a
shoulder surgery. The VRI was used to facilitate communication with Mr.
Virgadaula during his pre-operation meetings with hospital staff, including his
anesthesiology evaluation and his pre-operation interview. Mr. Virgadaula’s
nurses, however, had difficulty setting up the VRI, and the VRI’s remotely located
interpreter intermittently became non-visible, preventing Mr. Virgadaula from
receiving the full information communicated by his doctors and nurses. These
difficulties were evident to the nurses, who repeatedly attempted to correct the
visibility issues. Eventually, some hospital staff abandoned the VRI and resorted
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to simply gesturing to Mr. Virgadaula. Mr. Virgadaula’s doctor, for example,
resorted to gesturing in the moments leading up to Mr. Virgadaula’s surgery.
Mr. Virgadaula in his deposition reported:
While they were [trying to fix the] VRI . . . the doctor
was getting frustrated, . . . and then the doctor says, You
know what—he looked at me and kind of gestured—
Okay is it the right arm, right shoulder or the left
shoulder? So he’s gesturing to me, asking which
shoulder it is. . . . And [then] he’s gesturing this to me,
sleep, you, and then shot in my shoulder.
Mr. Virgadaula lives near Bethesda and is a member of the Association. He
has a number of medical conditions, including hypertensive heart disease and
cataracts. The conditions are stable.
E. Jacqueline Gluckman
Ms. Gluckman is in her late 70s. She visited Bethesda twice in 2011 for a
biopsy procedure and many times thereafter for physical therapy and
mammograms. Ms. Gluckman first visited Bethesda on October 7, 2011, for her
biopsy procedure. Nurses attempted to communicate with her using the VRI, but
the VRI did not work. Ms. Gluckman therefore wrote a note to the nurses
requesting an in-person interpreter. The nurses declined the request, and because
the nurses were unable to communicate with Ms. Gluckman, her procedure was
rescheduled to October 11, 2011. When Ms. Gluckman returned on October 11,
her nurses used the VRI, but the VRI was blurry and “the picture was no good.”
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These problems caused confusion between Ms. Gluckman and hospital staff.
According to deposition testimony from Ms. Gluckman:
[W]hen the doctor came in [to discuss the biopsy], he
was all angry [about the VRI issues]. . . . I was trying to
catch what he was saying on his lips. And [the nurses]
were, you know, writing. And then they just said, like,
Well just go ahead and do it. . . . I should have just
walked out. I felt like I was just like a dog—just dog,
like, they were just leading on, but they weren’t
explaining anything to me. And then they had put the
needle in my arm and it started bleeding.
After her October 11 visit, Ms. Gluckman returned to Bethesda more than sixteen
times for physical therapy and routine mammograms.
Ms. Gluckman lives near Bethesda and is a member of the Association. She
has several medical conditions, including a sinus syndrome, coronary artery
disease, arthritis, and hypertension. Although those conditions are generally
stable, Ms. Gluckman has recently experienced neck and cervical pain.
F. Carolann Donofrio
Mrs. Donofrio is around 80 years old and visited Bethesda twice in 2013 for
a heart condition. When Mrs. Donofrio first visited Bethesda, nurses attempted to
use the VRI to communicate with her, but they were unable to connect the VRI to a
remotely located interpreter. Thereafter, the hospital obtained an in-person
interpreter for Mrs. Donofrio. When Mrs. Donofrio returned to Bethesda later in
2013, nurses attempted to use the VRI, but the VRI was blurry, requiring the
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nurses to repeatedly restart it. The hospital again arranged for an in-person
interpreter.
Mrs. Donofrio lives near Bethesda. She suffers from a number of heart
conditions but, according to her physician and cardiologist, is in no “acute stress.”
G. John Donofrio
John Donofrio is in his mid-70s and is married to Carolann Donofrio. In
2013, he suffered from food poisoning and went to Bethesda for treatment. Mrs.
Donofrio accompanied him. Mr. Donofrio requested by way of a written note that
hospital staff afford him either an in-person interpreter or the VRI, but staff
provided neither. The Donofrios instead communicated with staff by pen and
paper.
Mr. Donofrio currently lives near Bethesda, and he has diabetes and a few
heart conditions. Those conditions are stable.
H. Bodil Tvede
Ms. Tvede is in her mid-80s and was admitted to Bethesda in 2011 after a
stroke. A nurse used the VRI to communicate with her at the beginning of her
stay. At one point during that encounter, the VRI picture zoomed in on the
remotely located interpreter’s face, preventing Ms. Tvede from seeing the hands of
the interpreter. Hospital staff relied on pen and paper, as well as “lip reading,” to
communicate with Ms. Tvede for the rest of her stay.
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Ms. Tvede is a member of the Association, and she currently lives in Ohio.
II. PROCEDURAL HISTORY
Ms. Sunderland, Ms. Drumm, the Lieses, Mr. Virgadaula, Ms. Gluckman,
Mrs. Donofrio, Mr. Donofrio, Ms. Tvede, and the Association filed a joint
complaint in district court raising disability discrimination claims under Section
504 and the ADA. 4 The patients requested compensatory damages under Section
504, asserting that, during their individual encounters with Bethesda, Bethesda was
deliberately indifferent to their Section 504 rights. And the Association and the
patients asked for injunctive relief under Section 504 and the ADA. 5 The
Association and the patients, alleging that various Bethesda policies and practices
are discriminatory, requested an order requiring Bethesda to correct the policies
and practices.
The district court severed the patients’ claims into three trial groups, with the
Association’s claims constituting a separate, fourth group. The first patient group
included the claims of Ms. Sunderland, Ms. Drumm, and Mrs. Donofrio; the
second group included the claims of the Lieses and Mr. Virgadaula;6 and the third
group included the claims of Ms. Gluckman, Mr. Donofrio, and Ms. Tvede.
4
A tenth patient, Julia Feltzin, also raised claims in the complaint. Ms. Feltzin, however,
is not a party to this appeal.
5
The Association, relying on “associational standing,” requested injunctive relief on
behalf of its members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343,
97 S. Ct. 2434, 2441 (1977) (internal quotation marks omitted).
6
Ms. Feltzin’s claims were also included in this second group.
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Bethesda filed motions for summary judgment on all of the patients’ claims,
as well as on the Association’s claims. The district court dismissed the patients’
claims in three separate orders and, in a fourth order, dismissed the Association’s
claims.
In dismissing the patients’ claims, the district court found that most of the
patients established a triable issue as to whether Bethesda violated their Section
504 rights by denying them effective communication. However, the court
determined that (1) no patient can obtain compensatory damages under Section 504
because none offered sufficient evidence of deliberate indifference and (2) no
patient has standing to seek injunctive relief under Section 504 and the ADA
because none showed a real and immediate threat of future injury.
The district court dismissed the Association’s claims for Section 504 and
ADA injunctive relief because the Association relied on the same future-injury
evidence as the patients.
III. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment on the
patients’ claims for compensatory damages, “viewing all facts in the light most
favorable to the [patients] and drawing all reasonable inferences in [their] favor.”
See McCullum, 768 F.3d at 1141. Summary judgment may be granted only if
“there is no genuine issue as to any material fact and the moving party is entitled to
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a judgment as a matter of law.” Id. A genuine issue of material fact exists when
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510 (1986).
We review the district court’s conclusion that the patients and the
Association lack standing to seek injunctive relief “anew, without deference to
the . . . court’s legal conclusions.” Am. Civil Liberties Union of Fla., Inc., v.
Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1190 (11th Cir. 2009).
IV. DISCUSSION
This appeal presents fact-intensive questions: (1) whether any of the
individual patients established a triable issue of deliberate indifference and
(2) whether any of the individual patients (or the Association) established standing
to seek injunctive relief.7 Based on our review of the evidence related to each
patient, we hold that some of the patients (Ms. Sunderland, the Lieses, Mr.
Virgadaula, and Ms. Gluckman) have established a triable issue of deliberate
indifference and that one of the patients (Ms. Gluckman) and the Association have
established standing.
A. Deliberate Indifference
7
In addition to challenging the district court’s dismissal of their claims, the patients and
the Association argue that the court abused its discretion in severing the patients’ claims into
three trial groups. See Weatherly v. Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013) (“We
review a district court’s decision . . . to sever for abuse of discretion.”). We conclude that the
district court acted within its discretion in severing the claims.
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Under Section 504, Bethesda must provide to deaf patients and visitors
interpretive aids that are “necessary to ensure effective communication.” See Liese
v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 341, 351 (11th Cir. 2012);
28 C.F.R. § 36.303(c)(1) (“A public accommodation shall furnish appropriate
auxiliary aids and services where necessary to ensure effective communication
with individuals with disabilities.”). But to obtain compensatory damages, a deaf
patient or visitor must show more than a denial of effective communication—she
must show deliberate indifference. Liese, 701 F.3d at 344–45, 348.
A defendant organization is deliberately indifferent under Section 504 if an
official of the organization knows that harm to an individual’s Section 504 rights is
substantially likely and the official fails to act on that likelihood. See id. at 344,
349. “[A]n official is someone who enjoys substantial supervisory authority within
an organization’s chain of command so that, when dealing with the complainant,
the official had complete discretion at a key decision point in the administrative
process.” Id. at 350 (internal quotation marks omitted). A hospital employee has
“complete discretion at a key decision point” in the hospital’s accommodation
process if she has authority to decide whether a patient can access an
accommodation and the decision is generally not reviewed by a higher authority,
even though the decision is “technically subject to review.” See id. Whether an
employee has such authority is “necessarily a fact-based inquiry.” See Doe v. Sch.
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Bd. of Broward Cty., 604 F.3d 1248, 1256 (11th Cir. 2010) (internal quotation
marks omitted).
Taking the evidence in the light most favorable to the patients, a jury could
find that Bethesda nurses are officials and that the nurses were deliberately
indifferent to the Section 504 rights of Ms. Sunderland, the Lieses, Mr. Virgadaula,
and Ms. Gluckman. However, the evidence is insufficient to support a finding that
the nurses were deliberately indifferent to the rights of Ms. Drumm, Mrs.
Donofrio, Mr. Donofrio, or Ms. Tvede.
1. Under Liese, a jury could conclude that Bethesda nurses are officials.
In Liese, two deaf individuals alleged that a hospital violated their
Section 504 rights to effective communication. We found that a triable issue
existed as to whether doctors at the hospital were officials. See Liese, 701 F.3d at
350–51. A jury could have found that the doctors were officials, we held, because
the record suggested that the doctors had “supervisory authority” over hospital
patients’ access to interpretive aids. See id. at 350. That is to say, the record
supported a finding that the doctors had “discretion to decide whether or not to
provide [a patient] with an interpretive aid.” See id. “[N]o evidence . . .
suggest[ed] that the doctors’ decisions” about whether a patient should receive an
interpretive aid “were subject to reversal.” Id. And the hospital’s interpretive-aid
policy indicated that the doctors had broad discretion over patient access to
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interpretive aids. Id. The policy “offer[ed] no guidance or recommendation as to
when doctors or nurses should use [interpretive] aids; rather, it afford[ed] the
[hospital] staff complete discretion in [such] matters.” Id.
The evidence related to Bethesda nurses’ authority over interpretive aids is
similar to the evidence related to the Liese doctors’ authority. When the evidence
is viewed in the light most favorable to the patients, Bethesda nurses can be seen as
having “supervisory authority” over a patient’s access to interpretive aids. See id.
The record indicates that nurses decide whether to provide the VRI or other, less-
substantive interpretive aids to a patient; nurses have authority to take corrective
measures when problems with the VRI arise; and in most situations, a patient can
access an in-person interpreter only if her nurse decides that the VRI and other aids
are not appropriate. Testimony from the patients suggests that (1) nurses manage
access to the VRI, as well as to less-substantive interpretive aids, and (2) nurses
have authority to reject unilaterally requests for in-person interpreters. And the
remainder of the record lends support to such testimony; the record supports a
finding that nurses’ decisions about when to provide and when to abandon the VRI
are generally not “subject to reversal.” See id. Indeed, like the policy in Liese,
Bethesda’s VRI policy provides hospital staff no guidance on when the VRI or
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another accommodation is appropriate. Nurses are afforded “complete discretion”
in implementing the policy. See id.8
2. A jury could find that Bethesda nurses were deliberately indifferent to
Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s
Section 504 rights.
A jury could find that Ms. Sunderland, the Lieses, Mr. Virgadaula, and
Ms. Gluckman were denied effective communication; that nurses were aware of
the denials; and that the nurses refused to correct the denials. See id. at 351
(holding that a triable issue of deliberate indifference existed because a hospital
doctor “knew that [the hospital] failed to provide [the plaintiff] with appropriate
auxiliary aids necessary to ensure effective communication” but decided not to
correct the failure). The evidence indicates that the nurses, knowing the patients
required an interpretive aid, relied on the VRI to facilitate communication with the
patients; were put on notice that the VRI was not accommodating the patients; 9 and
chose to persist in using the VRI without correcting its deficiencies.10 See Gebser
v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 1999 (1998)
(“[W]e hold that a damages remedy [is not available] . . . unless an official . . . has
8
Our determination that a jury could find that Bethesda nurses are officials is a fact-
intensive determination. We offer no opinion on whether nurses in other healthcare facilities can
be considered officials.
9
In reaching this conclusion, we do not find that a triable issue of ineffective
communication exists anytime a hospital uses a VRI. Rather, we conclude only that a jury could
find that the VRI, as administered to the patients here, was ineffective.
10
In fact, it appears that the nurses even abandoned the VRI altogether at times without
providing an alternative interpretive aid.
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actual knowledge of discrimination . . . and fails adequately to respond.”). In other
words, the evidence supports a finding that the nurses disregarded a substantial risk
that the patients were being denied effective communication. See Liese, 701 F.3d
at 344, 351.
Ms. Sunderland requested an in-person interpreter at the beginning of her
stay, placing her nurses on notice that she required an interpretive aid. Yet the
nurses denied the request and provided neither the VRI nor any other interpretive
aid. Consequently, prior to an invasive procedure, Ms. Sunderland was forced to
communicate with her doctor through gesturing. And although the nurses decided
to provide Ms. Sunderland the VRI after the procedure, the VRI was blurry and
frequently froze, infringing Ms. Sunderland’s ability to communicate through the
VRI. See 28 C.F.R. § 36.303(c)(1)(ii) (“In order to be effective, auxiliary aids and
services must be provided in accessible formats . . . .”); id. § 36.303(f) (“A public
accommodation that chooses to provide qualified interpreters via VRI service shall
ensure that it provides . . . video and audio over a . . . connection that delivers high-
quality video images that do not produce lags, choppy, blurry, or grainy images, or
irregular pauses in communication . . . .”). Ms. Sunderland’s son complained to
the nurses about these issues and requested an in-person interpreter. “A reasonable
juror could well find from these facts that [the nurses] knew that” the VRI was not
allowing Ms. Sunderland “to understand the” medical services she was receiving.
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See Liese, 701 F.3d at 351. Even so, the nurses denied Ms. Sunderland and her
son’s requests for an in-person interpreter and otherwise refused to correct the
VRI’s deficiencies. 11 See id. (“[A hospital official’s] apparent knowledge that [a
patient] required an additional interpretive aid to effectively communicate with
him and his deliberate refusal to provide that aid satisfies the deliberate
indifference standard.”).
The Lieses requested an in-person interpreter during each of their visits to
Bethesda, placing Mr. Liese’s nurses on notice that they required an interpretive
aid. Mr. Liese’s nurses denied the requests and relied on the VRI to facilitate
communication. In their administration of the VRI, the nurses arguably
demonstrated disregard for the Lieses’ communication needs. The nurses failed to
use the VRI consistently despite their knowledge that the Lieses required an
interpretive aid. And when the nurses used the VRI, it often froze or was blurry—
deficiencies that the nurses recognized and that obviously thwarted the VRI’s
serving as an “appropriate” interpretive aid. See 28 C.F.R. § 36.303(c), (f).
Further, in the presence of one of the nurses, the Lieses indicated that they were
struggling to follow the remotely located interpreter’s signing. The nurses,
however, chose to continue using the VRI, making no effort to seek an effective
11
Beyond seeking an in-person interpreter, a number of strategies for correcting the
VRI’s deficiencies appear to have been available to the nurses. The nurses, for example, could
have contacted Bethesda’s technical-support personnel to fix the VRI or could have taken the
steps necessary to provide effective written communications.
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alternative such as the interpretive aid requested by the Lieses—an in-person
interpreter. See Liese, 701 F.3d at 351.
Mr. Virgadaula’s nurses relied on the VRI to facilitate communications, but
the remotely located interpreter repeatedly became non-visible, depriving
Mr. Virgadaula of substantial information that hospital staff were attempting to
communicate. The nurses recognized this deficiency but continued to rely on the
VRI. See Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1140 (9th Cir. 2001) (finding a
jury issue of deliberate indifference because, among other things, a public entity
was on notice that a particular accommodation was “inadequate” but the entity
persisted in relying on the accommodation); cf. Gebser, 524 U.S. at 290, 118 S. Ct.
at 1999. That decision, unsurprisingly, resulted in communication breakdowns
between Mr. Virgadaula and his doctor just prior to an invasive procedure.
Ms. Gluckman had a similar experience at Bethesda as Mr. Virgadaula. Her
nurses relied on the VRI, but the picture on the VRI screen was blurry and not
cognizable, thereby thwarting the effectiveness of the VRI. See 28 C.F.R.
§ 36.303(c), (f). The nurses and Ms. Gluckman’s doctor all recognized this
deficiency; in fact, the doctor expressed frustration about the VRI’s
ineffectiveness. But the nurses chose to continue using the VRI without correcting
the deficiency. See Duvall, 260 F.3d at 1140; cf. Gebser, 524 U.S. at 290,
118 S. Ct. at 1999.
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3. The evidence set forth by Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and
Ms. Tvede is insufficient to support a finding of deliberate indifference.
Although Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and Ms. Tvede may
have been denied effective communication, a jury could not find that a nurse—or
any other Bethesda employee—knew such a denial was substantially likely and
failed to act.12 First, Ms. Drumm, Mr. Donofrio, and Ms. Tvede offered no
evidence from which a jury could find that a nurse knew their right to effective
communication was likely being violated. Ms. Drumm and Ms. Tvede were
provided the VRI, but no evidence indicates that during the administration of the
VRI there were deficiencies of which their nurses had notice. Mr. Donofrio was
accommodated with pen and paper rather than the VRI or an in-person interpreter,
but based on the record, his nurses had no reason to believe that the notes were an
ineffective accommodation. Second, Mrs. Donofrio’s claim of deliberate
indifference is belied by Bethesda’s providing her in-person interpreters when the
VRI was ineffective.
B. Standing to Seek Injunctive Relief
12
The patients claim that Bethesda’s President, a Nursing Supervisor (Kerr), and the Vice
President of Risk Management (Ritson) acted with deliberate indifference because they were
notified that Bethesda’s approach to the VRI was causing communication failures but failed to
act. However, the evidence at most shows that the President, Kerr, and Ritson were aware of a
few instances where the VRI malfunctioned or was otherwise ineffective. A mere awareness that
the VRI was sometimes ineffective does not amount to knowledge that Bethesda’s approach to
the VRI was substantially likely to lead to violations of patients’ Section 504 rights.
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The patients’ “standing to seek the injuncti[ve relief] requested depends on
whether [they are] likely to suffer future injury.” 13 See Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1334 (11th Cir. 2013) (internal quotation marks
omitted). A “sufficient likelihood” must exist that the patients “will be affected by
[Bethesda’s] allegedly unlawful conduct in the future.” See id. at 1328 (internal
quotation marks omitted). This requires the patients to establish “a real and
immediate—as opposed to a merely conjectural or hypothetical—threat of future
injury.” See id. at 1334 (internal quotation marks omitted). To establish such a
threat, each patient must show that (1) there is a “real and immediate” likelihood
that she will return to Bethesda and (2) she “will likely experience a denial of
benefits or discrimination” upon her return. See McCullum, 768 F.3d at 1145–46.
The district court erred in finding that Ms. Gluckman lacks standing, but the
court did not err in determining that the remaining eight patients lack standing.
Ms. Gluckman has shown a real and immediate likelihood that she will
return to Bethesda, and she has shown that upon her return she will likely
experience discrimination. First, since 2011, Ms. Gluckman has visited Bethesda
more than sixteen times, and some of the visits were for routine screenings—
annual mammograms. Because Ms. Gluckman has a family history of breast
13
Given the nature of the Association’s claims and the record before us, the
Association’s standing turns on the standing of the patients who are Association members. See
Hunt, 432 U.S. at 342–43, 97 S. Ct. at 2441.
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cancer, she regularly undergoes mammograms. Her Bethesda records show that
she visited Bethesda in 2013, 2014, and 2015 for mammograms. Given the
frequency of Ms. Gluckman’s visits and the routine nature of her screenings, the
likelihood that she will return to Bethesda in the immediate future is not merely
conjectural. Second, the evidence indicates that, on more than one occasion,
Bethesda failed to accommodate Ms. Gluckman, and no evidence suggests that
Bethesda has taken steps to prevent such a failure in the future. See Houston, 733
F.3d at 1336 (“[A] plaintiff’s exposure to illegal conduct in the past is . . . evidence
bearing on whether there is a real and immediate threat of repeated injury.”
(internal quotation marks and citation omitted)). 14
The remaining eight patients, however, have not established standing
because they have not shown a real and immediate likelihood that they will return
to Bethesda. The eight patients argue that, since they have medical conditions that
could at any time require them to visit a hospital, they have demonstrated a real
and immediate likelihood of returning to Bethesda. But the evidence shows that
the patients’ conditions are stable. See McCullum, 768 F.3d at 1146 (holding that a
plaintiff who had surgery at a hospital did not show a real and immediate threat of
14
Because Ms. Gluckman, a member of the Association, has standing, the Association
also has standing to pursue injunctive relief. The Association has satisfied the requirements for
associational standing. At least one of the Association’s members, Ms. Gluckman, has standing
to “sue in [her] own right”; the interests that the Association “seeks to protect are germane to
[its] purpose”; and “neither the claim asserted nor the relief requested requires the participation
of [the Association’s] individual members.” See Hunt, 432 U.S. at 343, 97 S. Ct. at 2441.
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returning to the hospital because the evidence demonstrated that he could control
his symptoms thereafter with medication). Although the patients might some day
return to Bethesda for treatment, the evidence does not establish a real and
immediate likelihood that they will do so. See Houston, 733 F.3d at 1338
(“‘[S]ome day’ intentions—without any description of concrete plans, or indeed
even any specification of when the some day will be—do not support a finding of
[standing].”).
V. CONCLUSION
We reverse the district court’s grant of summary judgment to Bethesda on
Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s Section 504
claims for compensatory damages. We also reverse the district court’s dismissal
on standing grounds of Ms. Gluckman’s and the Association’s Section 504 and
ADA claims for injunctive relief. We remand each for further proceedings
consistent with this opinion. We affirm the remainder of the district court’s
findings.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
26
Sandra Sunderland v. Bethesda Hospital, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2017-04-27
Citations: 686 F. App'x 807
Copy CitationsCombined Opinion