United States District Court, S.D. Florida
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the supplement to
motion for summary judgment on the issue of deliberate
indifference filed by Defendants Baptist Health South
Florida, Inc. ("Baptist Health"); Baptist Hospital
of Miami, Inc. ("Baptist Hospital"); and South
Miami Hospital, Inc. ("SMH"). (DE
156). As explained below, because the undisputed
facts establish that Defendants were not deliberately
indifferent to Plaintiffs' federally protected rights,
Defendants' motion for summary judgment on deliberate
indifference (DE 60; DE 156) is GRANTED.
is a disability discrimination case. Defendants are two
Miami-area non-profit hospitals and their non-profit parent
company. Plaintiffs Cheylla Silva and John Paul Jebian are
unrelated deaf individuals who allege that, during their many
visits to Defendants' facilities, Defendants
ineffectively communicated with them and were deliberately
indifferent to their federally-protected rights.
Consequently, Plaintiffs filed this lawsuit seeking
injunctive relief and compensatory damages pursuant to the
Americans with Disabilities Act ("ADA") and
Rehabilitation Act of 1973 (the "RA"). The Eleventh
Circuit determined that Plaintiffs' injunctive relief
claims may proceed to trial because genuine issues of
material fact exist as to whether Defendants provided
Plaintiffs with effective communication as required by the
ADA and RA. (DE 149); see also Silva v. Baptist Health S.
Florida, Inc., 856 F.3d 824 (11th Cir. 2017). The sole
question now before the Court is whether Plaintiffs'
damages claim may also proceed to trial, the answer to which
depends on whether triable issues exist regarding whether
Defendants were deliberately indifferent to each
Plaintiff's federally protected rights to effective
their count, Silva and Jebian visited Defendants'
facilities a combined 59 times between March 2009 and April
2016. (DE 158-1; DE 158-2; DE 158-3). Plaintiffs argue that
summary judgment is inappropriate because, in light of their
long histories of visits which they contend yielded varying
degrees of success obtaining in-person American Sign Language
("ASL") interpreters, a triable issue of fact must
exist as to Defendants' deliberate
indifference. From each Plaintiff's perspective,
"Defendants' failure to fully and effectively
communicate with [them] was a common and repeated occurrence,
and not isolated to routine visits or check-ups. In fact,
Defendants' failure to communicate with [them] often
occurred during critical medical encounters." (DE 61-13
¶ 11; DE 61-14 ¶11).
argument rests entirely on their generalized and identical
affidavit statements that during each visit, they
"repeatedly requested that hospital staff provide a live
ASL interpreter to help . . . communicate with nurses and
doctors regarding . . . condition and care. On most
occasions, no interpreter was present. On some occasions, an
interpreter was provided." (DE 61-13 ¶ 7; DE 61-14
¶ 7). They state, without identifying specific
instances, that "[o]n some occasions, hospital staff
would attempt to use a video relay interpreting
('VRI') machine to communicate with [them] ...
[h]owever, the machine was inoperable or unusable. Sometimes,
it appeared that hospital staff could not figure out how to
operate the machine. Other times, the picture would be
blocked, frozen, or degraded." (DE 61-13 ¶ 10; DE
61-14 ¶ 10). Plaintiffs also point to the fact that
Defendants often attempted to communicate with them through
family and friends. (DE 61 ¶¶ 28-31, 40-43).
Because federal regulations prohibit Defendants from relying
"'on an adult accompanying an individual with a
disability to interpret or facilitate communication'
except in narrow circumstances, " Plaintiffs assert that
Defendants must have known that in using family to interpret,
they were denying Plaintiffs their federally protected
rights. Finally, Plaintiffs contend that Defendants'
promulgation of policies to ensure effective communication
with deaf individuals shows that Defendants had notice that
failure to provide the specific accommodations Plaintiffs
requested resulted in ineffective communication.
respond that they have promulgated and diligently adhered to
policies for the provision of interpreter services for the
deaf. (DE 59 ¶ 3). Those policies provide for a range of
services to assist deaf patients and their family members.
(DE 59 ¶ 7). One of those services is an in-person
interpreter. (DE 59 ¶ 7). Another is VRI, although VRI
is not available at Baptist Health's outpatient
facilities. (DE 59 ¶¶ 7, 9). At other times,
depending on circumstances, Defendants provide patients with
other auxiliary aids and accommodations such as "ASL
translation via family member, text telephones (TTYs),
lip-reading, gestures and written notes." (DE 59 ¶
59). Defendants also claim that Plaintiffs never complained
about the accommodations at the time treatment was provided
or that communication was ineffective. (DE 159 at 2).
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). The movant "bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). "An issue of
fact is 'material' if, under the applicable
substantive law, it might affect the outcome of the case. An
issue of fact is 'genuine' if the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party." U.S. ex rel. Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015)
(quoting Harrison v. Culliver, 746 F.3d 1288, 1298
(11th Cir. 2014)). Rule 56(c)(3) provides that "[t]he
court need consider only the cited materials, but it may
consider other materials in the record."
the movant has met its burden under Rule 56(c), the burden
shifts to the nonmoving party who "must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Bee. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
non-moving party "may not rely merely on allegations or
denials in its own pleading, " but instead must come
forward with "specific facts showing a genuine issue for
trial." Fed.R.Civ.P. 56(e); Matsushita, 475
U.S. at 587. "Thus, to survive summary judgment, the
nonmoving party must offer more than a mere scintilla of
evidence for its position; indeed, the nonmoving party must
make a showing sufficient to permit the jury to reasonably
find on its behalf." Urquilla-Diaz, 780 F.3d at
1050 (citing Brooks v. Cty. Comm'n of Jefferson Cty.,
Ala., 446 F.3d 1160, 1162 (11th Cir. 2006)).
evaluating a defendant's motion for summary judgment, the
Court views all the evidence in the light most favorable to
the plaintiff and resolves all reasonable doubts about the
facts in favor of the plaintiff. See Liese v. Indian
River Cty. Hosp. Dist, 701 F.3d 334, 337 (11th Cir.
2012). However an "inference based on speculation and
conjecture is not reasonable." Chapman v. Am.
Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988).
Accordingly, "[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial." Allen
v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(quoting Matsushita, 475 U.S. at 587).
request compensatory damages under § 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a). This statute
provides 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 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). Under the
RA's implementing regulations, hospitals that receive
federal funding 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 person's
needs." 45 C.F.R. § 84.4(b)(2). Moreover, they must
"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).
These aids "may include . . . interpreters ... and other
aids for persons with impaired hearing" 45 C.F.R. §
84.52(d)(3). However, for "aids, benefits, and services,
to be equally effective, [they] are not required to produce
the identical result or level of achievement for handicapped
and nonhandicapped persons." 45 C.F.R. §
establish a right to compensatory damages pursuant to §
504 of the RA, Plaintiffs must prove: (1) that they are
qualified individuals with a disability, (2) who were
excluded from participation in or denied the benefits of
Defendants' services, programs, or activities, or
otherwise discriminated against, (3) on account of their
disability, and (4) that the exclusion or denial was the
result of intentional discrimination. Martin v. Halifax
Healthcare Sys.,621 Fed.Appx. 594, 601 (11th Cir. 2015)
(citing Shotz, 256 F.3d at 1079; Liese, 701
F.3d at 344). As to the fourth element, the Eleventh Circuit
in Liese v. Indian River County Hospital District
established that a plaintiff may demonstrate discriminatory
intent through a showing of deliberate indifference, which
occurs when a defendant knows that a rights violation is
substantially likely and fails to act on that likelihood. 701
F.3d at 344.45. Importantly, deliberate indifference
"plainly requires more than gross negligence" and
"requires that the indifference be a 'deliberate
choice, ' which is an 'exacting standard.'"
Id. at 344 (citations omitted). Moreover, the
defendant's deliberate indifference must have been
through "an official who at a minimum has
authority to address the alleged ...