Lee v. Fairview Health Services et al

Filing 163

ORDER granting 122 Motion for Summary Judgment(Written Opinion) Signed by Senior Judge David S. Doty on 7/12/2019. (CJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No.: 17-105 (DSD/ECW)
Claire Jean Lee,
Plaintiff,
v.

ORDER

Fairview Health Services; and
Fairview Southdale Hospital,
Defendants.

Claire Jean Lee, 10101 Lyndale Avenue South, Apartment 219,
Bloomington, MN 55420, plaintiff pro se.
Jennifer M. Waterworth, Esq. Gislason & Hunter, LLP, 701 Xenia
Avenue South, Suite 500, Minneapolis, MN 55416, counsel for
defendants.
This matter is before the court upon the motion for summary
judgment

by

defendants

Fairview

Health

Services

Southdale Hospital (collectively Fairview).

and

Fairview

Based on a review of

the file, record, and proceedings herein, and for the following
reasons, the court grants the motion.

BACKGROUND
This disability dispute arises out of pro se plaintiff Claire
Jee Lee’s treatment at the Fairview emergency room (ER) on January
10-11, 2015.1

1

Lee had been treated at the Fairview ER before this visit
as well. Am. Compl. ¶ 7.

Lee suffers from schizoaffective disorder - bipolar type,
panic disorder, obsessive compulsive disorder, generalized anxiety
disorder, and a hearing impairment.

Am. Compl. ¶ 3.

On January

10, 2015, at 10:31 p.m., Lee went to the Fairview ER complaining of
abdominal pain.
Todd Joing.

Waterworth Aff. Ex. 1.

Id.

Lee was examined by Dr.

Dr. Joing ordered lab testing, which showed no

abnormalities requiring immediate treatment.
explained

the

results

to

Lee,

and

Id.

referred

her

Dr. Joing
to

Fairview

gastroenterologist Dr. Cynthia Sherman for follow-up treatment and
provided her with medication instructions.
Lee

then

asked

to

speak

with

a

regarding her fear of taking medications.

Id.

licensed
Id.

social

worker

At 2:00 a.m., on

January 11, Jane Hansen, MSW, LICSW, arrived to speak with Lee.
Id.

Lee told Hansen that the last time she was treated at the

Fairview ER, it took fifty-three minutes before she was triaged.
Id.

Lee also stated that during her last visit, three Fariview

nurses made up a story that she refused to leave, and she was still
upset with how she was treated.

Id.

Hansen told Lee that she could bring her concerns regarding
her last visit to the Fairview patient experience representative or
the nursing supervisor.

Id.

Hansen also informed Lee that she

could assist Lee with any mental health concerns she may have. Id.
Lee then became upset and raised her voice.
ended shortly thereafter.

Id.

2

Id.

The interview

At 2:25 a.m., Lee was seen by Nurse Tia Scholla.

Id.

Lee

told Scholla that she wanted to talk with a licensed social worker
regarding her fear of taking antibiotics and about her father’s
recent death.

Id.

At 3:35 a.m., Hansen returned to examine Lee and asked her if
she would like an assessment.

Id.

Lee refused because she was not

satisfied with her previous interaction with Hansen.

Lee Dep. at

101:8-18. Lee stated that she preferred waiting until 8:00 a.m. to
see another social worker and asked to stay overnight.

Waterworth

Aff. Ex. 1.
Dr. Joing concluded that Lee did not meet the criteria for a
behavioral health hold, and officially discharged her at 4:12 a.m.
Id.

Lee was advised that she could return to Fairview for

re-evaluation as needed.

Id.

At 5:28 a.m., Lee returned to the Fairview ER triage desk and
asked to speak with Scholla.

Id.

Lee asked Scholla why she had

printed her discharge paperwork prior to her speaking with Hansen.
Id.

Lee stated that the time on her discharge paperwork was

evidence that Fairview intended to discharge her before she spoke
with Hansen. Id.
evaluate her.

Lee also complained that Hansen did not properly
Id.

Scholla told Lee that Fairview did not

discharge her without properly evaluating her needs.

Id.

Scholla

also assured Lee that had she met the appropriate criteria for
further

treatment,

her

discharge

3

paperwork

would

have

been

shredded,

and

her

providers

appropriate plan of care.2

would

Id.

have

continued

with

an

Lee spent the remainder of the

morning in the Fairview ER waiting room.

Id.

At 7:49 a.m., Lee was re-admitted to the Fairview ER.

Id.

She stated that she was there to have a psychiatric evaluation and
for abdominal pain.

Id.

Lee asked to review her medical records

and to use the phone to raise a complaint about her medical
treatment.

Id.

Lee stated that she needed to use the phone so she

could contact Joanna Roberson, a former Fairview employee.

Id.

Eventually, Lee’s phone was removed from the room by Fairview staff
because

Lee

department.

made
Id.

repeated

calls

to

the

Fairview

psychiatric

Lee stated that she made the calls to Roberson

because she was concerned that Fairview staff would call the
police.3

Lee Dep. at 106:6-107:5.

Lee was then re-examined by Dr. Randall Steinman.
Aff. Ex. 1.

Waterworth

Dr. Steinman noted that Lee was discharged that

morning with improvement in her symptoms and was referred to
Fairview gastroenterology for follow-up treatment.

Id.

Dr.

Steinman also concluded that Lee’s lab work that morning was
unremarkable except for slightly elevated creatinine.

Id.

Dr.

Steinman further noted that Lee had three negative abdominal

2

Lee admitted that she has no firsthand knowledge that
Scholla’s explanation was untrue. Lee Dep. at 99:22-100:4.
3

Fairview did not call the police.
4

Lee Dep. at 104:18-23.

ultrasounds in the last year and a negative pelvis ultrasound. Id.
Dr. Steinman concluded that Lee did not have symptoms requiring
surgical intervention.

Id.

Dr. Steinman told Lee that she should try carafate and
follow-up with the gastroenterologist. Id.

Lee declined a second

social worker exam, and asked to speak with the nursing supervisor.
Lee Dep. at 115:20-116:12.
The nursing supervisor briefly talked with Lee and advised her
that Dr. Steinman was discharging her. Waterworth Aff. Ex. 1. The
nursing supervisor instructed Lee to schedule an appointment with
Fairview gastroenterology.
Id.

Id.

Lee was discharged at 9:12 a.m.

Her discharge diagnoses were epigastric pain, schizoaffective

disorder, unspecified condition, renal insufficiency, and chronic
abdominal pain.

Id.

Lee was escorted to the Fairview patient

parking area by security.

Id.

Lee commenced this action on January 10, 2017.

On June 6,

2017, Lee filed an amended complaint alleging violations of Title
III

of

the

Americans

with

Disabilities

Act

(ADA),

the

Rehabilitation Act of 1973, the Emergency Medical Treatment and
Active Labor Act (EMTALA),the Minnesota Government Data Practices
Act (MGDPA), and for intentional infliction of emotional distress
(IIED).

Lee seeks a declaratory judgment, injunctive relief, and

compensatory damages.

Fairview now moves for summary judgment.

Lee did not file a response to the instant motion nor did she

5

attend the hearing.4

DISCUSSION
I.

Standard of Review
“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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252 (“The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient ....”).
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.

Celotex, 477

A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of
materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A).

4

If a

Lee was given an enlargement of time to file a response.
ECF No. 153.
6

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
Even

where,

Celotex, 477 U.S. at 322-23.
as

here,

a

motion

for

summary

judgment

is

unopposed, the court still must determine that the moving party is
entitled to judgment as a matter of law.  Interstate Power Co. v.
Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993).
It is nonmovant’s responsibility, however, to “set forth specific
facts showing that there is a genuine issue for trial.” Stroeder v.
Smith, No. 10-4115, 2013 WL 354112, at *3 (D. Minn. Jan. 3,
2013)(citation omitted) report and recommendation adopted, No. 104115, 2013 WL 354203 (D. Minn. Jan. 29, 2013).

The court is not

required to “scour the record to determine whether there are issues
of fact that preclude summary judgment.” Id.; see also Satcher v.
Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th
Cir. 2009) (stating that where summary judgment was unopposed,
“[i]t was not the District Court's responsibility to sift through
the record to see if, perhaps, there was an issue of fact.”).
II.

ADA and Rehabilitation Act
Lee claims that Fairview retaliated against her and failed

to reasonably accommodate her disability in violation of the ADA
and the Rehabilitation Act.

The court disagrees.

Title III of the “ADA proscribes discrimination in places of

7

public accommodation against persons with disabilities.”
v. Franco, 228 F.3d 889, 892 (8th Cir. 2000).
Act

provides

that

no

“otherwise

qualified

Stenger

The Rehabilitation
individual

with

a

disability in the United States ... shall, solely by reason of
[her] disability, be excluded from the participation in, be denied
benefits of, or be subject to discrimination under any program or
activity receiving Federal financial assistance[.]”

29 U.S.C.

§ 794(a).
Lee must show that Fairview “was deliberately indifferent to
the rights secured to her by the ADA and Rehabilitation Act in
order to recover compensatory damages.”

Meagley v. City of Little

Rock, 639 F.3d 384, 389 (8th Cir. 2011).

“In the absence of direct

evidence of discrimination [the court] analyze[s] discrimination
and retaliation claims” under the ADA and the Rehabilitation Act
pursuant to the “burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Mershon v. St. Louis
Univ., 442 F.3d 1069, 1074 (8th Cir. 2006).
to

accommodate

are

analyzed

under

a

“[C]laims for failure

modified

burden-shifting

analysis, because a discriminatory intent is not an issue.”
“To

establish

a

prima

facie

case

...

a

plaintiff

Id.
must

demonstrate (1) that [she] engaged in a statutorily protected
activity, (2) that an adverse action was taken against [her], and
(3)

a

causal

connection

protected activity.”

Id.

between

the

adverse

action

(internal citation omitted).

8

and

the

“If this

prima

facie

showing

is

made,

the

burden

then

shifts

to

the

defendant to proffer a legitimate nondiscriminatory reason for the
adverse action.”

Id.

“The burden of production then shifts back

to the plaintiff to show that the defendant’s reason is a pretext
for discrimination.” Id. (internal citation omitted). A plaintiff
“at all times retains the burden of persuading the trier of fact
that [s]he has been the victim of illegal discrimination due to
[her] disability.”

Fenney v. Dakota, Minn. & E. R. Co., 327 F.3d

707, 712 (8th Cir. 2003).
Lee has not established a prima facie case because she has not
shown that she suffered any adverse action.
she

was

twice

treated

at

the

Fairview

The record shows that
ER

within

hours

and

discharged with follow-up instructions only after the treating
physicians conducted lab testing, reviewed her medical history,
examined her physically, and provided medication instructions.

In

addition, Lee was provided several opportunities to talk with a
licensed Fairview social worker. The record does not show that Lee
was provided care or treatment inconsistent with other similarly
situated patients.

Indeed, Lee offers no evidence that she made

any specific requests for accommodation or that those requests were
denied.

Lee has not shown that Fairview either retaliated against

her or failed to accommodate her disability in violation of the ADA
and Rehabilitation Act.

As a result, Fairview is entitled to

judgment as a matter of law on these claims.

9

II.

EMTALA
Lee

claims

that

Fairview

violated

EMTALA.

The

court

disagrees.
EMTALA requires that health care provides medically screen and
stabilize patients seeking emergency treatment.
§ 1395dd(a)-(b).

42 U.S.C.

“EMTALA imposes only a limited duty on hospitals

with emergency rooms.
malpractice actions.

It is not a substitute for state-law
It does not guarantee proper diagnosis or

provide a federal remedy for medical negligence.”

Summers v.

Baptist Med. Cen. Arkadelphia, 91 F.3d 1132, 1136 (8th Cir. 1996).
“[T]he purpose of the statute was to address a distinct and rather
narrow problem—the dumping of uninsured, underinsured, or indigent
patients by hospitals who did not want to treat them.”

Id.

“A

patient is dumped when he or she is shunted off by one hospital to
another, the second one being, for example, a so-called charity
institution.”

Id.

Accordingly, “[p]atients are entitled under

EMTALA ... to be treated as other similarly situated patients are
treated, within the hospital’s capabilities.

It is up to the

hospital itself to determine what its screening procedures will
be.”

Id.
Lee has not established that Fairview failed to provide her

with a proper screening.

In fact, the record shows that Fairview:

admitted her as an emergency patient on two occasions, within
hours; conducted two physical examinations; ordered lab testing,

10

which the treating physicians concluded were unremarkable; reviewed
her medical history; and provided her with instructions regarding
recommended medications.

Fairview also provided a licensed social

worker when requested by Lee.

Further, to the extent Lee’s health

required stabilization or a stabilization assessment, the record
does not show that Fairview failed to do so.

Rather, Dr. Steinman

concluded that Lee’s symptoms had improved since her arrival to the
ER and that no emergency treatment was medically necessary.
And again, Lee offers no evidence that she was treated
differently than other similarly situated patients or that Fairview
breached any protocols in treating her.

As a result, Lee’s EMTALA

claim also fails.
III.

MGDPA
MGDPA

maintenance,

“regulates

dissemination,

government entities.”
“MGDPA,

the

all

collection,
and

access

Minn. Stat.

government

data

to

creation,

storage,

government

data

§ 13.01, subdiv. 3.

collected,

created,

in

Under

received,

maintained or disseminated by a government entity shall be public
unless classified by statute, or temporary classification pursuant
to section 13.06, or federal law, as nonpublic or protected
nonpublic, or with respect to data on individuals, as private or
confidential.”

Minn. Joint Underwriting Ass’n v. Star Tribune

Media Co., LLC., 862 N.W.2d 62, 65 (Minn. 2015).

“MGDPA defines

government entity as a state agency, statewide system, or political

11

subdivision.

In turn, state agency is defined as the state, the

University of Minnesota, and any office, officer, department,
division, bureau, board, commission, authority, district or agency
of the state.”

Id.

(internal citations omitted).

Lee offers no evidence that Fairview is a state agency,
statewide system, or political subdivision under MGDPA.
Fairview is not a government entity under the statute.

As such,

Fairview’s

participation in the Medicaid and Medicare programs does not affect
that conclusion. See, e.g., Alexander v. Pathfinder, 189 F.3d 735,
740 (8th Cir. 1999 (holding that private corporations’ acceptance
of “Medicaid funds does not convert [them] into a state actor.”).
As a result, Lee’s MGDPA claims fails.
IV.

IIED
“To sustain a claim of IIED, the alleged behavior must be so

extreme as to be ‘utterly intolerable to a civilized community’ or
‘so severe that no reasonable person can be expected to endure
Onyiah v. St. Cloud State Univ., 665 F. Supp. 2d 948, 970-71

it.’”

(D. Minn. 2009) (quoting Strauss v. Thorne, 490 N.W.2d 908, 913
(Minn. Ct. App. 1992) (citing Hubbard v. United Press Int’l, Inc.,
330 N.W.2d 428, 438-39 (Minn. 1983)). “Liability for IIED does not
extend

to

insults,

indignities,

threats,

oppressions, or other trivialities.”

Id.

annoyances,

petty

(internal quotation

omitted).
Fairview’s conduct falls far short of this standard.

12

Fairview

twice medically treated Lee and permitted her to spend the entire
night and morning in its lobby, without incident. In addition, Lee
was permitted to use the phone when admitted and given access to
licensed Fairview social workers.
dissatisfied

with

her

experience

Though Lee appears to be
at

Fairview,

she

offers

no

evidence that she suffered a severe or egregious indignity or that
Fairview’s conduct was utterly intolerable.

As a result, Lee’s

IIED claim fails.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion for summary judgment [ECF No. 122] is granted;

and
2.

The case is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 12, 2019
s/David S. Doty
David S. Doty, Judge
United States District Court

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