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Silva v. Baptist Health South Florida, Inc.

United States District Court, S.D. Florida

March 30, 2018




         THIS 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).[1] 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.

         I. BACKGROUND

          This 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 communication.

         By 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).[2] 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.[3] 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).

         Plaintiffs' 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).[4] 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.

         Defendants 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).[5] 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).


         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). 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."

         After 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)).

         In 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).


         Plaintiffs 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. § 84.4(b)(2).

         To 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 ...

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