Audia v. Briar Place, Ltd., an Illinois corporation

Filing 27

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 4/24/2018. Briar Place's motion to dismiss, 16 , is granted in part, denied in part. Count III is dismissed without prejudice. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHLEEN AUDIA,
Plaintiff,

No. 17 CV 6618

v.

Judge Manish S. Shah

BRIAR PLACE, LTD.,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Kathleen Audia was a resident at a nursing and rehabilitation
facility owned and operated by defendant Briar Place, Ltd. Audia is profoundly deaf.
During her stay at the Briar Place facility, Audia had to communicate with staff by
reading lips and exchanging written notes, despite her requests for an American
Sign Language interpreter. Audia claims that Briar Place breached its duties to her
and discriminated against her by failing to provide effective methods of
communication. Audia brings claims based on the Rehabilitation Act, the Patient
Protection and Affordable Care Act, negligence, and the Illinois Nursing Home Care
Act. Briar Place moves to dismiss portions of the amended complaint based on the
failure to state a claim. For the following reasons, the motion is granted in part,
denied in part.
I.

Legal Standards
A complaint must contain factual allegations that plausibly suggest a right to

relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I must accept as true all of the

facts alleged in the complaint and draw reasonable inferences from those facts in
plaintiff’s favor, but I am not required to accept as true the complaint’s legal
conclusions. Id. at 678–79.
II.

Facts
Kathleen Audia is a 63-year-old woman who is profoundly deaf. [15] ¶ 3.1

Audia’s hearing has been impaired since childhood, and she lost total hearing at the
age of 55. [15] ¶ 10. Audia primarily communicates through American Sign
Language, with very limited ability to verbalize speech and read lips. [15] ¶¶ 3, 10.
When she uses lip reading and written notes to communicate, she is only able to
understand a small part of the conversation. [15] ¶ 10.
In March 2015, Audia fell and received a laceration to her head. [15] ¶ 11.
After being discharged from the hospital and spending a few days at another
facility, Audia became a resident of Briar Place’s nursing and rehabilitation facility.
[15] ¶ 11. Upon arrival, Audia was diagnosed with a number of ailments, including
major depressive disorder, balance and gait issues, osteoarthritis, and low back
pain. [15] ¶ 11.
Throughout her time at the Briar Place facility, Audia was required to use lip
reading or written notes to communicate with the staff, even though she repeatedly
requested an ASL interpreter. [15] ¶¶ 6, 13, 14. Audia was limited to reading lips
and exchanging written notes at a number of her sessions with staff, including,

Bracketed numbers refer to docket numbers on the district court docket. Page numbers
are taken from the CM/ECF header at the top of filings. The facts are taken from the
amended complaint, [15].
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among others, initial admission assessments; development of her care plan;
nursing, social service, dietary, and recreation assessments; nursing evaluations of
her medical condition; physician and nurse practitioner evaluations; mental health
evaluations; and discharge planning conferences. [15] ¶¶ 6, 13. Audia was also not
allowed to walk outside alone because she repeatedly failed Briar Place’s
evaluations since she did not understand what she was being asked. [15] ¶ 14.
Because Audia was not able to effectively communicate with Briar Place’s
staff, her discharge was delayed. [15] ¶ 15. She did not understand her right to
request a discharge or what she needed to do to satisfy Briar Place’s discharge
criteria. [15] ¶ 15. The lack of effective communication caused Audia frustration,
fear, and emotional distress. [15] ¶ 16. Audia was finally discharged on July 31,
2017, 866 days after she was admitted. [15] ¶ 11.
III.

Analysis
A.

Count I: Rehabilitation Act

The Rehabilitation Act prohibits, among other things, discrimination against
a “qualified individual with a disability” solely on the basis of her disability in a
program receiving federal financial assistance. 29 U.S.C. § 794(a). To state a claim
under the Act, Audia must allege that “(1) [she] is a qualified person (2) with a
disability and (3) [Briar Place] denied [her] access to a program or activity because
of [her] disability.” Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012).
“Refusing to make reasonable accommodations is tantamount to denying access.”
Id. Audia must also allege that Briar Place received federal financial assistance.

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Novak v. Bd. of Trustees of S. Illinois Univ., 777 F.3d 966, 974 (7th Cir. 2015). And
in order to receive compensatory damages under the Act, Audia must sufficiently
plead that the discrimination was intentional. See Reed v. Columbia St. Mary’s
Hosp., 782 F.3d 331, 337 (7th Cir. 2015).
Audia argues that by not providing her with an ASL interpreter (or other
appropriate aid), Briar Place intentionally deprived Audia of her ability to
effectively communicate with the Briar Place staff and, as a result, prevented her
from enjoying the benefits offered to others who did not have her disability. Briar
Place does not contest that it receives federal financial assistance or that Audia is a
qualified person with a disability. Instead, its primary argument is that Audia has
not sufficiently pleaded that any alleged discrimination was intentional. Although
the Seventh Circuit has not yet clarified whether intentional discrimination in this
context requires a showing of discriminatory animus or deliberate indifference,
Strominger v. Brock, 592 F.App’x 508, 511 (7th Cir. 2014), the majority approach is
to apply the deliberate indifference standard. See Everett v. Baldwin, No. 13 C
04697, 2016 WL 8711476, at *10 (N.D. Ill. Jan. 15, 2016). Deliberate indifference
“does not require personal animosity or ill will but rather may be inferred when
there is knowledge that a harm to a federally protected right is substantially likely,
and a failure to act upon that likelihood.” Id. (citation omitted). Both Audia and
Briar Place apply the deliberate indifference standard, so I will too.
Briar Place raises the facts in Everett in an effort to distinguish the case here.
Briar Place summarizes: “The Everett plaintiff . . . alleged repeated requests for

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reassignment in compliance with his permits . . . and his multiple formal
grievances. These complaints should have alerted the correctional center defendants
of the need to accommodate his medical condition, and the failure to do so suggests
deliberate indifference to Everett’s medical needs.” [20] at 4; Everett, 2016 WL
8711476, at *10. Briar Place also tries to distinguish itself from another case, in
which “the plaintiff, who had Parkinson’s disease and could not write, alleged
deliberate indifference when defendants refused to enforce a court order for access
to the library and typewriter.” [20] at 4; Hildreth v. Cook Cty., No. 08 C 3506, 2010
WL 1656810, at *3 (N.D. Ill. Apr. 23, 2010). Briar Place uses Everett and Hildreth to
show that Audia’s complaint does not allege that Briar Place “violated any court
order or failed to honor a medical prescription.” [20] at 4. But that misses the point.
The Everett and Hildreth defendants were told what the plaintiffs needed but did
not provide what was requested, giving rise to a reasonable inference of deliberate
indifference. That is what Audia has pleaded. She alleges that she repeatedly asked
Briar Place for an ASL interpreter, but Briar Place did not give her one. See [15]
¶¶ 6, 14. Requests that go unanswered can support a finding of deliberate
indifference. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015); Reed v.
Columbia St. Mary’s Hosp., 782 F.3d 331, 337 (7th Cir. 2015) (finding deliberate
indifference to be adequately pleaded where the plaintiff alleged that “the hospital,
with knowledge of her [neurological] disability, purposely denied her access to the
computer that helps her communicate”).

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Briar Place also argues that Audia has not alleged that it denied her benefits
solely because of her disability. But the inference that the denial of hearing
accommodations is solely because of Audia’s hearing disability is a reasonable one.
See Carter v. Baldwin, No. 17 CV 3690, 2018 WL 656086, at *3 (N.D. Ill. Feb. 1,
2018) (denying a motion to dismiss where a hearing-impaired plaintiff argued that
“the absence of a sign language interpreter diminished the quality of his medical
care and, therefore, the facility discriminated against him based on his disability”).
Briar Place’s motion to dismiss Count I is denied.
B.

Count II: Affordable Care Act

Audia also brings claims under § 1557 of the Affordable Care Act, which,
similar to the Rehabilitation Act, prohibits discrimination on the basis of disability.
Briar Place argues that the ACA does not provide a private right of action. No court
of appeals has addressed whether § 1557 includes a private right of action, but
several district courts have found that it does. See Briscoe v. Health Care Serv.
Corp., 281 F.Supp.3d 725, 737 (N.D. Ill. 2017); Esparza v. Univ. Med. Ctr. Mgmt.
Corp., No. CV 17-4803, 2017 WL 4791185, at *5 (E.D. La. Oct. 24, 2017); Se.
Pennsylvania Transp. Auth. v. Gilead Scis., Inc., 102 F.Supp.3d 688, 698 (E.D. Pa.
2015); Callum v. CVS Health Corp., 137 F.Supp.3d 817, 848 (D.S.C. 2015); Rumble
v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *7 n.3
(D. Minn. Mar. 16, 2015). I agree. Section 1557’s incorporation of “[t]he enforcement
mechanisms” of other statutes is congressional recognition that the act can be

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enforced through the kind of private right of action authorized by the referenced
statutes.
Briar Place argues that by cross-referencing the four other civil rights
statutes, Congress meant to direct plaintiffs to enforce their rights through those
other statutes, not § 1557. But such cross-references are a way to create a private
right of action in a statute. For example, the Rehabilitation Act cross-references
Title VI. See 29 U.S.C. § 794a(2) (“The remedies, procedures, and rights set forth in
title VI of the Civil Rights Act of 1964 . . . shall be available” for violations of § 504.).
The Supreme Court has not interpreted the cross-reference to mean that plaintiffs
do not have a private right of action to bring § 504 claims and must instead sue
through Title VI, but rather has understood the cross-reference to mean that “the
remedies for violations of . . . § 504 of the Rehabilitation Act are coextensive with
the remedies available in a private cause of action brought under Title VI of the
Civil Rights Act of 1964.” Barnes v. Gorman, 536 U.S. 181, 185 (2002). The same
reasoning applies here to § 1557.2
Briar Place’s motion to dismiss Count II is denied.
C.

Count III: Negligence

Briar Place argues that Audia’s negligence claim sounds in “healing arts”
malpractice negligence, and therefore Audia was required to attach a physician’s
Briar Place also emphasizes “the Supreme Court’s hostility . . . to implying [private rights
of action] in spending statutes.” Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906,
911 (7th Cir. 2003). But, as it acknowledges, there is no “broad rule that spending power
statutes can never be enforced by private actions” and instead “courts must examine each
statutory scheme closely.” Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs.
Admin., 603 F.3d 365, 378 (7th Cir. 2010). Examining § 1557 closely, I conclude that
Congress intended to create a private right of action.
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certification to the complaint. Because she did not submit a physician’s certification,
Briar Place argues that the claim must be dismissed.
Illinois law requires complaints that seek damages for “injuries or death by
reason of medical, hospital, or other healing art malpractice” attach an affidavit
stating that the plaintiff consulted with a health professional who believes there is
“a reasonable and meritorious cause for filing” the action and the written report of
that health professional. 735 ILCS 5/2-622(a).3 Failure to do so is grounds for
dismissal. 735 ILCS 5/2-622(g). This rule is a substantive one that applies in federal
court. See Hahn v. Walsh, 762 F.3d 617, 628–33 (7th Cir. 2014). In determining
whether a complaint alleges healing arts malpractice or ordinary negligence, Illinois
courts often consider three factors: “(1) whether the standard of care involves
procedures not within the grasp of the ordinary lay juror; (2) whether the activity is
inherently one of medical judgment; and (3) the type of evidence that will be
necessary to establish plaintiff[’s] case.” Jackson v. Chicago Classic Janitorial &
Cleaning Serv., Inc., 355 Ill.App.3d 906, 909 (2005).
Audia bases her negligence claim in part on Briar Place’s “duty to provide
skilled nursing care and rehabilitation services to [Audia] in a manner to avoid
mental anguish or emotional distress.” [15] ¶ 36.4 The average juror does not know

A plaintiff can also file an affidavit saying that she cannot get a consultation before the
statute of limitations runs, allowing her some extra time before filing the certificate and
written report. 735 ILCS 5/2-622(a). Either way, an affidavit needs to accompany the
complaint.
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Audia also refers to a standard of care imposed by the Nursing Home Care Act. [15] ¶ 37.
Although Audia does not make the argument, I will note that § 5/2-622’s requirements do
not apply to claims brought under the Act, see Eads v. Heritage Enterprises, Inc., 204 Ill.2d
92, 109 (2003), and the Act does allow for negligence claims. 210 ILCS 45/3-601. But Audia
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what kind of care and services qualify as “skilled nursing care and rehabilitation
services” and would require expert testimony. And determining whether an ASL
interpreter or other auxiliary aid was needed to properly treat Audia is a question
of medical judgment. Audia claims that Briar Place knew of her hearing disability
but did not provide her with sufficient means of communication in what she labels
“Vital Encounters,” which includes (among others) development of Audia’s plan of
care; discussion of Audia’s medical history, medications, and symptoms; physical
and occupational therapy sessions; physician’s rounds; and mental health
counseling. [15] ¶¶ 6, 13, 35. So Briar Place’s medical professionals had to exercise
their medical judgment with respect to at least two questions—(1) what methods of
communication were appropriate given the nature of Audia’s hearing disability and
(2) what level of communication was necessary for the medical service being
administered. For jurors to determine whether Briar Place’s decisions were sound
or not, they require expert testimony.
Audia argues that her negligence claim is one about policy, not medical care,
which will require non-medical evidence of what Briar Place’s policies were,
whether those policies provided effective communication for deaf residents, and
whether Briar Place complied with their policies. [22] at 11. She points out that “[i]f
. . . the standard may be established on the basis of defendant’s administrative
policies or other evidence short of medical expert testimony, plaintiff will be
permitted to proceed with his suit on a theory of ordinary negligence.” Kolanowski
does not argue that her negligence claim is based on the Act (she brings a separate count
under that statute), so I will assume that Count III is based on common law negligence.

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v. Illinois Valley Cmty. Hosp., 188 Ill.App.3d 821, 824 (1989). But Audia’s
negligence claim is not primarily based on Briar Place’s administrative policies, and
she cannot amend the complaint through her briefing. Audia’s negligence claim is
also based on Briar Place’s denial of services, denial of the opportunity to
participate in Audia’s own care, and the failure to provide effective communication
to deaf residents, which resulted in “withholding of adequate care” and mental
anguish. [15] ¶ 38. Such a claim cannot be resolved without medical expert
testimony. So Audia’s negligence claim is one for healing arts malpractice, and
Illinois law required her to attach a physician’s certification to the complaint.
Because she did not, the claim is dismissed.
Briar Place’s motion to dismiss Count III is granted. Count III is dismissed
without prejudice.5
D.

Count IV: Illinois Nursing Home Care Act

Briar Place does not argue for dismissal of Audia’s entire Nursing Home Care
Act claim, but it asserts that Audia has not pleaded sufficient facts to support her
request for punitive damages. As Briar Place concedes, “plaintiffs who sue for
violation of the Nursing Home Care Act may ‘recover common law punitive damages
upon proof of willful and wanton misconduct on the part of defendant.’” Vincent v.
Alden-Park Strathmoor, Inc., 241 Ill.2d 495, 502 (2011) (citation omitted). Willful

“Illinois courts have held that when a plaintiff fails to attach a certificate and report, then
‘a sound exercise of discretion mandates that [the plaintiff] be at least afforded an
opportunity to amend her complaint to comply with section 2–622 before her action is
dismissed with prejudice.’” Sherrod v. Lingle, 223 F.3d 605, 614 (7th Cir. 2000) (citation
omitted).
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and wanton conduct is defined as “a course of action which shows actual or
deliberate intent to harm or which, if the course of action is not intentional, shows
an utter indifference to or conscious disregard for a person’s own safety or the safety
or property of others.” Karas v. Strevell, 227 Ill.2d 440, 455 (2008) (citation omitted).
“[T]he standard for assessing whether conduct is willful and wanton is ‘remarkably
similar’ to the deliberate indifference standard.” Chapman v. Keltner, 241 F.3d 842,
847 (7th Cir. 2001) (citation omitted). I have already found that Audia has pleaded
facts that plausibly establish deliberate indifference. Given the similarity between
the standards of deliberate indifference and willful and wanton conduct, Audia has
also sufficiently pleaded facts to support her request for punitive damages at this
stage.6
Briar Place’s motion to dismiss Count IV is denied.
E.

Statute of Limitations

Briar Place argues that parts of Audia’s claims are untimely. Audia filed her
complaint on September 13, 2017, so, Briar Place argues, the claims subject to twoyear statutes of limitations (the Rehabilitation Act, negligence, and Illinois Nursing
Home Care Act claims) can only be based on conduct occurring after September 13,
2015. Audia alleges that she became a resident on March 17, 2015. So essentially,
Briar Place asks for dismissal of Counts I, III, and IV as they relate to conduct from
March to September 2015.
The state-law requirement that plaintiffs seek leave from the court before pleading
punitive damages, 735 ILCS 5/2-604.1, is procedural and does not apply here. See MCI
Worldcom Network Servs., Inc. v. Big John’s Sewer Contractors, Inc., No. 03 C 4991, 2003
WL 22532804, at *3 (N.D. Ill. Nov. 7, 2003) (collecting cites).
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Briar Place raises this statute of limitations argument for the first time in its
reply brief and it is therefore waived. See Thorncreek Apartments III, LLC v. Mick,
886 F.3d 626, 636 (7th Cir. 2018). It is also generally inappropriate to dismiss a
claim as time-barred on a Rule 12(b)(6) motion. See Walker v. Thompson, 288 F.3d
1005, 1009–10 (7th Cir. 2002). Anyway, it asks me to parse each of Audia’s claims in
a way that I will not do at this stage. See BBL, Inc. v. City of Angola, 809 F.3d 317,
325 (7th Cir. 2015) (“A motion to dismiss under Rule 12(b)(6) doesn’t permit
piecemeal dismissals of parts of claims; the question at this stage is simply whether
the complaint includes factual allegations that state a plausible claim for relief.”).
IV.

Conclusion
Briar Place’s motion to dismiss, [16], is granted in part, denied in part. Count

III is dismissed without prejudice.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: April 24, 2018

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