CUTTING v. DOWN EAST ORTHOPEDIC ASSOCIATES PA
Filing
54
ORDER granting 35 Motion for Summary Judgment. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CAROL CUTTING,
Plaintiff
v.
DOWN EAST ORTHOPEDIC
ASSOCIATES, P.A.,
Defendant
)
)
)
)
)
)
)
)
)
)
1:16-cv-00582-JCN
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff alleges Defendant discriminated against her, in violation of
the Americans with Disabilities Act and the Maine Human Rights Act, based on her
Tourette’s syndrome. (Complaint, ECF No. 1.)
The matter is before the Court on
Defendant’s motion for summary judgment. (Motion, ECF No. 35.)
Following a review of the summary judgment record, and after consideration of the
parties’ arguments, the Court grants Defendant’s motion for summary judgment.
FACTUAL BACKGROUND
A.
Plaintiff’s Disability
Plaintiff suffers from Tourette’s syndrome, which causes her to have repeated
involuntary body movements, including repetitive shoulder flexion of the right arm in an
outward motion, which medical records have described as resembling a punching motion.
(DSMF ¶ 1, ECF No. 36.) Plaintiff characterizes her tics as more of a “pointing” motion,
and describes them as not entirely “involuntary,” but more like “strong compulsions.”
(PSAMF ¶¶ 20 – 24, ECF No. 43.) The frequency and severity of Plaintiff’s tics depend
on certain factors, including her stress level and whether she is comfortable in her
surroundings. (Id. ¶ 28.)
In June 2013, Plaintiff was referred to D. Thompson McGuire, M.D., an orthopedic
surgeon employed by Defendant, for right shoulder pain that had been persistent since she
fell in 2011. (DSMF ¶ 2.)
B.
The Medical Findings at the Initial Appointment
On June 20, 2013, Dr. McGuire examined Plaintiff’s right shoulder. (Id. ¶ 4.) The
examination and testing revealed that Plaintiff had full range of motion of the right
shoulder, motor strength of 5/5, pain with cross body abduction, tenderness localized to
her acromioclavicular joint, and impingement sign testing was equivocal. (Id. ¶ 5.) X-rays
of the right shoulder, which Dr. McGuire reviewed with Plaintiff, revealed joint narrowing
and mild arthritic changes at the acromioclavicular joint. (Id. ¶¶ 7, 8.) An earlier MRI
showed supraspinatus tendinopathy, a partial rotator cuff tear, but no full thickness rotator
cuff tear. (Id. ¶¶ 9, 10; PRDSMF ¶ 10, ECF No. 43.) Dr. McGuire documented that
physical therapy did not improve Plaintiff’s symptoms and that Plaintiff had undergone
unsuccessful trials of Lidoderm, medical marijuana, and injections. (DSMF ¶ 11.) Dr.
McGuire also noted that Plaintiff had Tourette’s syndrome with “uncontrollable, intense,
involuntary motions of right upper extremity frequently.” (Id. ¶ 12.)
Dr. McGuire diagnosed Plaintiff as suffering from acromioclavicular arthritis with
possible rotator cuff tendonitis and impingement, and recommended surgery. (Id. ¶¶ 6, 13,
14.) Plaintiff expressed a desire for the surgery, but she wished to delay the surgery until
October 2013 due to her summer plans. (Id. ¶ 16.)
2
C.
Doctor McGuire’s Conduct During the Initial Appointment
At the initial appointment, after Plaintiff told Dr. McGuire that she had Tourette’s,
according to Plaintiff, Dr. McGuire moved across the exam room, and stated, “I don’t want
you to hit me.” (PSAMF ¶ 3.) Plaintiff explained to Dr. McGuire that her Tourette’s would
not cause her to hit him; she said, “I’ve never hit anybody.” (PSAMF ¶¶ 9 – 11.) Plaintiff
asserts Dr. McGuire insisted on remaining across the room from her. (Id.) Plaintiff alleges
she felt humiliated and miserable. (Id. ¶¶ 2, 11, 34.)
Dr. McGuire does not recall where he sat during the exam. (Id. ¶ 7.) Dr. McGuire’s
Physician’s Assistant, Danielle St. Onge, believes she was in the room during the
appointment. (Id. ¶ 5.) PA St. Onge said she did not observe Dr. McGuire acting rude or
unprofessional, but she does not remember whether Dr. McGuire made the statements
Plaintiff describes. (Id. ¶ 5; DRPSAMF ¶ 5, ECF No. 47.) Ann Covey, PT, who
subsequently spoke with Plaintiff, concluded that Plaintiff did not consider her interaction
with Dr. McGuire during the appointment to be positive. (Id. ¶ 12.)
D.
Appointments with Other Providers
On June 25, 2013, Plaintiff was seen by Alisa Roberts, D.O., on a referral for
injection therapy to address her right shoulder pain prior to surgery. (DSMF ¶ 17.) Dr.
Roberts wrote: “Patient has a history of Tourette’s syndrome and one of her tics is a
repetitive shoulder flexion [on] the right side (in a punching motion) – this makes pain
worse and she feels that this displaces her shoulder anteriorly,” and that Plaintiff had a fair
amount of tendinitis and muscle strain from her initial trauma (in 2011) and from continued
uncontrolled repetitive upper extremity movements. (Id. ¶ 18.) Dr. Roberts performed a
3
musculoskeletal examination and noted: “rotator cuff muscles intact. Motor strength is
full.” (Id. ¶ 19.)
In September 2013, Plaintiff called Defendant to cancel her surgery. (Id. ¶ 20.) On
October 9, 2013, Plaintiff returned to see Dr. Roberts for another injection. Dr. Roberts
reported that Plaintiff’s “shoulder chronically subluxes, made worse from punching motion
that is uncontrolled due to her Tourette’s syndrome.” (Id. ¶ 21.)
On October 29, 2013, Plaintiff was seen by Gregory Unruh, D.O., at St. Joseph
Family Medicine; Plaintiff told him that she was “worried about how she will keep the
shoulder from moving with her Tourette’s.” (Id. ¶ 22.) Plaintiff had “great concerns” that
she would be unable to remain still after the surgery due to her tics and that she might
reinjure herself post-operatively. (Id. ¶ 23.)
On November 4, 2013, PT Covey reported to Defendant that Plaintiff was “very
concerned about having the surgery because her Tourette’s are so bad that she might reinjure herself.” (Id. ¶ 24.) PA St. Onge told PT Covey that there would be no limitation
on Plaintiff’s right shoulder post-operatively; Plaintiff would be provided with a sling for
comfort, but not for immobility. (Id. ¶ 25.) PT Covey shared this information with
Plaintiff. (Id. ¶ 26.)
On November 7, 2013, Plaintiff returned to Defendant’s office for a pre-operative
appointment with PA St. Onge. At that time, Plaintiff reported that she had decided to
proceed with right shoulder surgery. (Id. ¶ 27.) PA St. Onge recorded that she discussed
the planned procedure with Plaintiff, including the benefits and risks of the procedure,
which risks included incomplete relief of pain and symptoms, failure of repair, and need
4
for additional surgery. (Id. ¶ 28.) PA St. Onge told Plaintiff that she would not have any
restrictions following the surgery and that she would be in a sling for comfort, which could
be removed. (Id. ¶ 29.) Plaintiff also signed an informed consent that included the
following language:
My physician has discussed with me the details of my medical condition, the
nature of the proposed procedure and the benefits to be reasonably expected
compared with alternative treatment approaches. . . .
No Guarantee: My physician has represented to me that no guarantee has
been made to me concerning the results of his surgery/procedure.
Extension of Operation: My physician has explained to me that during the
course of surgery unforeseen conditions may be revealed, that may require a
change or extension of the operation. I authorize such additional surgical
procedures as are necessary for my condition . . . .
(Id. ¶ 30.)
E.
The First Surgery
On November 13, 2013, Dr. McGuire performed the surgery, which included open
distal clavicle excision, meaning the removal of one centimeter of the distal clavicle and
arthroscopy. (Id. ¶¶ 31 – 32.) During the arthroscopic portion of the procedure, Dr.
McGuire identified a partial thickness tear of the subscapularis and a full thickness tear of
the supraspinatus and infraspinatus muscles, meaning a partial thickness rotator cuff tear
and a full thickness rotator cuff tear. (Id. ¶ 33.) Dr. McGuire debrided and smoothed the
rough edges around the partial thickness and full thickness rotator cuff tears. (Id. ¶ 34.)
Dr. McGuire elected to perform debridement to address the full thickness tear, rather
than attempting a rotator cuff repair, because he believed Plaintiff would re-tear the tendon
following surgery when Plaintiff experienced movements caused by her Tourette’s
5
syndrome. (Id. ¶¶ 35 – 36.) According to Plaintiff, Dr. McGuire later said that he would
never perform a rotator cuff repair on a patient like Plaintiff. (PSAMF ¶ 18.) While Dr.
McGuire’s medical records of the surgery state that he had previously discussed with
Plaintiff the possibility of a rotator cuff tear, Plaintiff maintains Dr. McGuire never told
her before surgery that she may have a rotator cuff tear. (Id. ¶ 55 – 59.)
Following the surgery, PA St. Onge advised Plaintiff that a full thickness rotator
cuff tear was identified during surgery, but that it could not be repaired due to the risk of
disruption from her Tourette’s. (DSMF ¶ 42.) Plaintiff had several appointments at
Defendant’s office and with other providers, including PT Covey, during which Plaintiff
discussed post-operative pain and changes in sensation in her back and right shoulder. (Id.
¶¶ 43 – 44, 46 – 49.) Plaintiff’s last treatment with Dr. McGuire, PA St. Onge, or any other
provider at Defendant’s office for her shoulder was November 26, 2013.1 (Id. ¶ 45.)
F.
The Second Surgery
In September 2014, Plaintiff fell on her right shoulder; she reported continued
problems in the right shoulder to PT Covey. (Id. ¶ 50.) On November 19, 2014, Plaintiff
saw Jessica Aronowitz, M.D., an orthopedic surgeon. (Id. ¶ 51.) Dr. Aronowitz ordered
an MRI, which confirmed a full thickness rotator cuff tear of the supraspinatous tendon.
(Id. ¶ 52.) Dr. Aronowitz agreed that a factor to be considered in determining the
appropriate treatment was Plaintiff’s Tourette’s syndrome. (Id. ¶ 54.) Dr. Aronowitz noted
the complex nature of Plaintiff’s problem, including immobilizing Plaintiff’s shoulder after
Plaintiff returned to Defendant’s office after the alleged discrimination for orthopedic care from another
doctor related to a knee issue. (Id. ¶ 81.) Plaintiff does not assert she was subject to discrimination during
the subsequent, unrelated visits. (Id. ¶ 82.)
1
6
surgery. (Id. ¶ 56.) On February 19, 2015, Dr. Aronowitz performed rotator cuff repair
surgery on Plaintiff’s right shoulder. (Id. ¶ 55.)
Dr. Aronowitz added an additional swathe to the sling Plaintiff wore after the rotator
cuff repair surgery to help prevent Plaintiff’s arm from moving. (PSAMF ¶ 67.) Dr.
Aronowitz’s records reflect that the attempted immobilization following surgery was
“quite challenging.” (DSMF ¶ 58.) After the surgery, Plaintiff suffered several falls, one
in late February 2015, one in July or August 2015, and one in October or November of
2015. (Id. ¶¶ 59 – 62.)
Despite the use of an immobilizing device with a swath following surgery, Plaintiff
suffered disruption of the rotator cuff repair. (Id. ¶ 63.) An MRI on March 1, 2017, showed
a “large full thickness defect” in the supraspinatus tendon, and a partial tearing of the
infraspinatous tendon. (Id. ¶ 64.) On March 23, 2017, Plaintiff saw Dr. Aronowitz; Dr.
Aronowitz concluded that further rotator cuff repair surgery was not indicated. (Id. ¶ 65.)
G.
Medical Opinions
On May 15, 2017, Plaintiff consulted Mark Price, M.D., at Massachusetts General
Hospital, who concluded that Plaintiff had a large residual tear of the rot[at]or cuff tendon.
(Id. ¶¶ 66, 67.) Dr. Price ultimately concluded that Plaintiff had an “irreparable” right
rotator cuff tear. (Id. ¶ 68.) In a February 14, 2018, note, Dr. Price wrote: “[Another doctor
and I] both expressed some concern with doing a reverse arthroplasty given the degree of
tics that she has an[d] instead think that a superior capsular reconstruction would better
serve her purposes.” (Id. ¶ 69.)
7
Plaintiff’s expert witness, Uma Srikumaran, M.D., who has performed surgeries on
patients with movement disorders, believes that while there may be more risk associated
with shoulder surgery for such a patient, it is permissible to explain the risk and perform
the surgery if the patient wants the surgery. (PSAMF ¶ 92 – 93). Dr. Srikumaran opines
that the physician’s role is to weigh the risks and benefits of a procedure by obtaining
information about the patient’s goals and degree of pain, and that informed consent is a
shared decision-making process. (PSAMF ¶¶ 95, 97, 99.) Dr. Srikumaran does not
criticize Dr. McGuire for refusing to perform a rotator cuff repair. (DSMF ¶ 70.) Dr.
Srikumaran was not surprised that Dr. Aronowitz’s attempt to repair Plaintiff’s rotator cuff
failed or that Plaintiff suffered a disruption of her rotator cuff repair. (Id. ¶ 72.)
Another of Plaintiff’s experts, Charles Vega, M.D., a family physician, agrees that
it is important to consider a patient’s disabilities when choosing a treatment plan and that
the possibility of Plaintiff re-injuring her arm after surgery due to her Tourette’s syndrome
was a reasonable concern. (Id. ¶¶ 73 – 78.)
According to Defendant’s expert, Thomas Gill, M.D., given Plaintiff’s history and
the results of the tests that were performed, he would have been concerned about the
acromioclavicular joint impingement and bursitis in the biceps, not a rotator cuff tear. (Id.
¶ 79.) Dr. Gill, therefore, believes his pre-operative discussion with the patient would have
involved acromioclavicular joint surgery, as Dr. McGuire’s did, rather than rotator cuff
repair. (Id. ¶ 80.)
8
DISCUSSION
“The court shall grant summary judgment 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). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of the Plaintiff’s claims, a trial-worthy controversy exists, and summary
judgment must be denied as to any supported claim. Id. (“The district court’s role is
limited to assessing whether there exists evidence such that a reasonable jury could return
a verdict for the nonmoving party.” (internal quotation marks omitted)). Unsupported
claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986).
1.
ADA Title III
“Title III of the ADA targets discrimination by privately operated places of public
accommodation. . . .” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 303 – 04 (1st Cir.
2003). The law’s general prohibition provides that: “No individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of the goods, services,
9
facilities, privileges, advantages, or accommodations of any place of public
accommodation . . . .” 42 U.S.C. § 12182(a). The statute clarifies the general prohibition
with three other general rules prohibiting, “on the basis of disability”: (1) the “denial of the
opportunity . . . to participate in or benefit from” the public accommodation, (2) providing
an “opportunity to participate in or benefit from” the public accommodation “that is not
equal to that afforded to other individuals,” and (3) providing a public accommodation that
is “different or separate from that provided to other individuals, unless such action is
necessary . . . .” Id. § 12182(b)(1)(A)(i) – (iii).
“Discrimination” is more specifically defined to include, in relevant part: (1) “the
imposition or application of eligibility criteria that screen out or tend to screen out an
individual with a disability . . . unless such criteria can be shown to be necessary;” (2) “a
failure to make reasonable modifications in policies, practices, or procedures . . . unless
making such modifications would fundamentally alter the nature of” the public
accommodation. Id. § 12182(b)(2)(A)(i) – (ii).
Title III incorporates the remedies of the public accommodation provisions of the
Civil Rights Act of 1964, which “allows only injunctive relief (as opposed to money
damages).” Dudley, 333 F.3d at 304. A Title III claim, “therefore requires some ongoing
harm (or, at least, a colorable threat of future harm).” Id.
a.
Standing
The United States Constitution’s limitation on the federal courts’ jurisdiction to
“Cases” and “Controversies” requires that a party invoking federal jurisdiction establish:
(1) an injury in fact that is concrete and particularized, and actual or imminent, not
10
conjectural or hypothetical; (2) a causal connection between the injury and conduct
complained of; and (3) it must be likely as opposed to merely speculative that the injury
could be redressed with a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
– 61 (1992). When seeking only prospective relief, it is not enough for a plaintiff to point
to a past instance of harm; a plaintiff must show that he or she “face[s] a real and immediate
threat of again being illegally” harmed. City of Los Angeles v. Lyons, 461 U.S. 95, 110
(1983).
A plaintiff’s abstention from desired opportunities based on knowledge of
potentially harmful conduct from others can sometimes be sufficient to establish standing
for prospective relief. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 182 – 185 (2000); Fiedler v. Ocean Properties, Ltd., 683 F. Supp. 2d 57, 69
(D. Me. 2010) (explaining Laidlaw: “because the plaintiffs alleged an actual injury in the
form of current deterrence, the Supreme Court did not require the same specific intentions
to return that were necessary to show imminent injury” in Lujan). “Thus, where, as here,
an ADA plaintiff alleges actual injury, [s]he must establish [s]he is ‘currently deterred from
patronizing a public accommodation due to a defendant's failure to comply with the
ADA.’” Fiedler, 683 F. Supp. 2d at 68 (quoting Pickern v. Holiday Quality Foods Inc.,
293 F.3d 1133, 1138 (9th Cir. 2002)).
Accordingly, in the ADA Title III context, the standing inquiry focuses more “upon
whether the barrier remains in place” than “upon how many attempts a plaintiff has made
to overcome a discriminatory barrier. . . .” See Dudley, 333 F.3d at 305. As this Court
11
(Woodcock, J.) stated when addressing the issue in its order on Defendant’s earlier motion
to dismiss:
[C]ourts have considered several factors to determine whether the plaintiff
has alleged or established a real or immediate threat of injury, including:
whether the plaintiff resides within close proximity to the defendant's
hospital; the number of prior visits alleged by the plaintiff; whether the
plaintiff has a medical condition that will likely require attention in the
future; and whether the defendant hospital has changed its policy so as to
accommodate the plaintiff in the future.
(16-cv-00582 ECF No. 11 at 12, quoting Benavides v. Laredo Med. Ctr., No. L-08-105,
2009 WL 1755004 at *4 (S.D. Tex. Jun. 18, 2009)); see also Harris v. Stonecrest Care
Auto Ctr., LLC, 472 F. Supp. 2d 1208, 1216 (S.D. Cal. 2007) (“[C]ourts have examined
factors such as: (1) the proximity of the place of public accommodation to plaintiff's
residence, (2) plaintiff's past patronage of defendant's business, (3) the definiteness of
plaintiff's plans to return, and (4) the plaintiff's frequency of travel near the accommodation
in question”).
The summary judgment record supports the Plaintiff’s standing.
The record
established that (1) Plaintiff lives in the area of Defendant’s office, (2) Plaintiff visited the
office numerous times (including after the incident in question for other orthopedic issues
with a different doctor), (3) Plaintiff has medical issues that will likely require further
medical attention, and (4) there have been no policy changes that would ensure that
Plaintiff would not experience similar treatment in the future if she returned for further
treatment. The facts are sufficient to establish standing to pursue an ADA Title III claim
if the conduct of which she complains constitutes a violation of the statute.
12
b.
Merits of the Discrimination Claim
Under Title III, a plaintiff must establish that he or she “comes within the protections
of the ADA as a person with a disability” and also must show that “the defendant’s
establishment is subject to the mandates of Title III as a place of public accommodation.”
Dudley, 333 F.3d at 307. The record establishes that Plaintiff’s Tourette’s syndrome is a
disability under the act and that “health services” establishments fall within the scope of
the ADA mandates. See 42 U.S.C. § 12101.
Plaintiff must also satisfy a third element - that Defendant discriminated against her
“within the meaning of the ADA.” See Marradi v. K&W Realty Inv. LLC, No. CV 1610038-LTS, 2016 WL 5024198, at *3 (D. Mass. Sept. 15, 2016). Plaintiff has not
established a “denial” of service “on the basis of disability,” see 42 U.S.C. §
12182(b)(1)(A)(i), because the undisputed evidence establishes that Defendant’s
employees examined and treated her. Plaintiff also has not shown that she was segregated
from other patients or provided “separate” services or accommodations “on the basis of
disability.” See Id. § 12182(b)(1)(A)(iii).
Plaintiff contends she was afforded services “on the basis of disability” that were
“not equal to that afforded to other individuals.” Id. § 12182(b)(1)(A)(ii). Plaintiff initially
points to Dr. McGuire’s decision not to repair her rotator cuff tear when he discovered it
during surgery because he believed her tics would disrupt the repair. (Complaint ¶¶ 23 –
24). This allegation sounds in medical malpractice, not discrimination, and thus does not
support Plaintiff’s ADA claim. Specific medical decisions, which must account for a
patient’s conditions and traits to meet the professional standard of care, generally do not
13
constitute unequal service delivery “on the basis of disability” within the meaning of the
ADA. Lesley v. Hee Man Chie, 250 F.3d 47, 54 n.6 (1st Cir. 2001) (“to read the ADA as
prohibiting a medical decision-maker from considering medical factors flowing from a
disability would put the disabled patient . . . in a different, arguably worse, position than
the nondisabled patient”) (quoting M. Crossley, Of Diagnoses and Discrimination:
Discriminatory Nontreatment of Infants with HIV Infection, 93 Colum. L.Rev. 1581, 1655
(1993)); see also Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (“we agree with
two other circuits that have recently concluded a lawsuit under the Rehab Act or the
Americans with Disabilities Act (ADA) cannot be based on medical treatment decisions”);
Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (“These are the sort
of purely medical decisions that we have held do not ordinarily fall within the scope of the
ADA or the Rehabilitation Act”); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289,
1294 (11th Cir. 2005) (“The Rehabilitation Act, like the ADA, was never intended to apply
to decisions involving the termination of life support or medical treatment”); Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for
medical malpractice”); United States v. Univ. Hosp., State Univ. of New York at Stony
Brook, 729 F.2d 144, 157 (2d Cir. 1984) (“Where the handicapping condition is related to
the condition(s) to be treated, it will rarely, if ever, be possible to say with certainty that a
particular decision was ‘discriminatory’”).
Plaintiff also alleges that Defendant failed to make reasonable modifications in
policies, practices, or procedures, and that “[t]he modification that [Defendant] should have
provided to [Plaintiff] would be a repair of her rotator cuff tear during the surgery, followed
14
by a shoulder immobilizer to address any concern of involuntary movement of her
shoulder.”
(Complaint ¶¶ 25 – 28.)
Plaintiff’s attempt to frame the issue as a
“modification” to Defendant’s “policies, practices, or procedures” does not alter the
essence of the claim.
The decision as to whether to perform a rotator cuff repair
“procedure” is not a policy, practice or “procedure” within the meaning of the ADA for
which a patient can request a reasonable modification. Even if it were, the evidence in the
record shows that Plaintiff did not request such a modification. See Dudley, 333 F.3d at
307 (“the plaintiff must show . . . that [s]he (the plaintiff) requested a reasonable
modification in that policy or practice which, if granted, would have afforded [her] access
to the desired goods . . . and that the defendant nonetheless refused to modify the policy or
practice”).
Plaintiff further argues that “Dr. McGuire discriminated against her because of her
disability, by failing to have any discussion about Tourette’s or how it would impact his
plan of care,” which failure Plaintiff contends deprived her of “the right to engage in shared
decision making and full informed consent about treatment risks, benefits, and
alternatives.” (Opposition at 2, ECF No. 42). This theory of liability also sounds in
medical malpractice. While informed consent might in some instances be viewed as a
distinct theory of tort liability from malpractice during diagnosis and treatment, see e.g.,
Santana-Concepcion v. Centro Medico del Turabo, Inc., 768 F.3d 5, 9 (1st Cir. 2014), the
theory nevertheless represents the medical decision-making that courts have uniformly
declined to scrutinize in the disability context, “[l]est questions of medical propriety be
conflated with questions of disability discrimination . . . .” Lesley, 250 F.3d at 54.
15
Ultimately, medical care decisions can only be challenged “by showing the decision
to be devoid of any reasonable medical support.” Id. at 55.
[T]he point of considering a medical decision’s reasonableness in this
context is to determine whether the decision was unreasonable in a way that
reveals it to be discriminatory. In other words, a plaintiff’s showing of
medical unreasonableness must be framed within some larger theory of
disability discrimination. For example, a plaintiff may argue that her
physician’s decision was so unreasonable-in the sense of being arbitrary and
capricious-as to imply that it was pretext for some discriminatory motive,
such as animus, fear, or “apathetic attitudes.”
Id.2 (emphasis in original). The summary judgment record in this case does not include a
genuine dispute as to whether Dr. McGuire’s medical decisions were “devoid of any
reasonable medical support.”
When the record, including the expert witness testimony, is viewed most favorably
to Plaintiff, the only dispute concerning the reasonableness of Dr. McGuire’s conduct is
Plaintiff’s contention that Dr. McGuire maintained his distance from Plaintiff during the
initial appointment, because he did not want Plaintiff to hit him. While some courts
examine whether a Title III defendant took any “adverse action” against a disabled
individual, Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999), Plaintiff has not
pointed to any cases, and the Court has found none, in which a court found conduct such
as Plaintiff alleges, standing alone, to be sufficient to constitute an adverse action
amounting to discrimination. See e.g., Bradley v. Walmart Store No. 1749, No. 14-CV225-PB, 2014 WL 4146809, at *1 (D.N.H. Aug. 18, 2014) (“There is, in general, no cause
This and several of the other decisions of the circuit courts of appeals interpreted “discrimination” under
the Rehabilitation Act, rather than the ADA, but the Rehabilitation Act “is interpreted substantially
identically to the ADA.” Katz v. City Metal Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996).
2
16
of action to remedy a verbal insult by a private individual. Accordingly, the claim asserting
injury due to an offensive remark should be dismissed”). Even if Dr. McGuire’s conduct
during the initial examination (i.e., his alleged comment and distance from Plaintiff)
amounted to adverse action, Plaintiff cannot recover based on a past incident. Title III
offers only prospective relief for ongoing or future violations. While a policy or practice
of employees making negative or offensive comments related to disabilities could
conceivably constitute discrimination due to an unequal enjoyment of a public
accommodation, this record does not support such a claim.
Finally, Plaintiff contends Dr. McGuire’s actions toward Plaintiff based on her
disability are such that one can reasonably infer that his medical decisions regarding the
surgery and his discussions with Plaintiff about her treatment and medical risks reflect a
discriminatory motive or animus. Although the record includes conflicting evidence
regarding the propriety of Dr. McGuire’s alleged conduct during his initial examination of
Plaintiff, the record lacks any evidence to suggest that his medical decisions were the
product of a discriminatory animus.
In sum, on this record, Plaintiff cannot sustain a claim under the ADA. Accordingly,
Defendant is entitled to summary judgment on Plaintiff’s ADA claim.
2.
Maine Human Rights Act
The Maine Human Rights Act (MHRA) is designed to protect the interests of
individuals in fair employment, fair housing, public accommodations, and educational
opportunity, against discrimination on the basis of race, color, sex, sexual orientation,
physical or mental disability, religion, ancestry or national origin, age, and familial status.
17
5 M.R.S. § 4552. Regarding disability discrimination, “[i]t is settled law that the MHRA
should be construed and applied along the same contours as the ADA.” Dudley, 333 F.3d
at 312; see also Winston v. Maine Tech. Coll. Sys., 631 A.2d 70, 74 (Me. 1993) (“We have
stated that because the MHRA generally tracks federal anti-discrimination statutes, it is
appropriate to look to federal precedent for guidance in interpreting the MHRA”). The
Court’s reasoning on Plaintiff’s ADA claim also governs Plaintiff’s MHRA claim.
Defendant, therefore, is entitled to summary judgment on Plaintiff’s MHRA claim.3
CONCLUSION
Based on the foregoing analysis, the Court grants Defendant’s Motion for Summary
Judgment. (ECF No. 35).
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 2nd day of May, 2019.
Defendant also argues that Plaintiff’s MHRA claim is barred by the requirement that actions brought
pursuant to the MHRA must be commenced within two years of the allegedly discriminatory act(s). 5
M.R.S. § 4613(c). Because the Court finds that Defendant is entitled to summary judgment on Plaintiff’s
MHRA claim on the same grounds as on Plaintiff’s ADA claim, the Court does not reach the issue.
3
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?