Collins et al v. Dartmouth-Hitchcock Medical Center, et al
Filing
16
ORDER denying 14 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Colleen R. Collins, et al.
v.
Civil No. 13-cv-352-JD
Opinion No. 2014 DNH 066
Dartmouth-Hitchcock, Medical
Center and James E. Saunders
O R D E R
Colleen Collins, Ruth Collins, and Debra Ceriello brought
suit against Dartmouth-Hitchcock Medical Center and James
Saunders, asserting various state law claims and claims under the
Americans With Disabilities Act, 42 U.S.C. § 12101, et. seq., and
the Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq.,
arising out of the defendants’ conduct toward Colleen Collins
during a hospital stay and subsequent medical appointments.
The
defendants move to dismiss the plaintiffs’ claim for enhanced
compensatory damages.
The plaintiffs object.
Background
The background information is a summary of allegations in
the complaint for purposes of this order only and does not
provide factual findings or a factual background for any other
purpose.
Colleen Collins, a “profoundly deaf individual,” used a
Cochlear implant for several years to help her hear better.
Although the Cochlear implant allowed Colleen to have some
hearing, she still suffered from significant hearing loss and,
therefore, communicated at times in sign language.
In addition,
Colleen has learning and vision difficulties associated with
Turner Syndrome.
On September 16, 2011, Colleen underwent a surgical
procedure to replace her Cochlear implant, which had been
malfunctioning.
The procedure was performed by Dr. James
Saunders, a physician at Dartmouth-Hitchcock Medical Center
(“DHMC”).
The procedure was unsuccessful and, when Colleen awoke
from the procedure, she was unable to hear anything.
Saunders, knowing that Colleen would be unable to hear after
the procedure, did not provide her with a sign language
interpreter when he met with her to inform her of the outcome of
the operation.1
Instead, Saunders attempted to explain what
happened during the operation to Colleen’s sisters, Ruth Collins
and Debra Ceriello, in the hope that they would pass along the
information to Colleen.2
Ruth and Ceriello insisted that Saunders address Colleen
directly, and Saunders attempted to explain what happened to
Colleen by talking to her.
Because the procedure had been
unsuccessful, however, Colleen was unable to hear or understand
1
The plaintiffs allege that Colleen, who had been Saunders’
patient since 1990, had requested an interpreter on several
occasions in the past, but that Saunders’ office had told her
that it did not know how to request one.
2
It is unclear whether Ruth and Ceriello were with Colleen
when Saunders attempted to explain to them the results of the
procedure, or whether Saunders explained it to them separately
while Colleen was alone in the recovery room.
2
Saunders.
Saunders then wrote on a piece of paper what happened
during the procedure.
Colleen, however, did not have her
glasses, and could not read the written explanation.
The plaintiffs allege that Saunders did not return for eight
hours after his failed attempt to explain what happened during
the operation.
He eventually returned without an interpreter,
despite the availability of several interpreters, and again
attempted to convey the results of the operation to Colleen by
writing on a piece of paper.
The plaintiffs allege that Saunders
attempted to communicate unsuccessfully with Colleen for fifteen
minutes, and that the interaction “left Colleen . . . wondering
if she was going to die.”
In subsequent appointments, Ruth and Ceriello made certain
that both DHMC and Saunders were aware that Colleen required an
interpreter at all medical appointments.
After receiving the
request, in the summer of 2013, employees of DHMC and Saunders
forced Colleen to sign a waiver indicating she did not wish to
have an interpreter.
The employees told Colleen that she would
not be treated by DHMC or Saunders unless she signed the waiver.
Since her surgery, Colleen has repeatedly been denied an
interpreter by DHMC.3
3
The plaintiffs allege that Colleen recovered some hearing
six months after the operation.
3
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant
to move to dismiss on the ground that the plaintiff’s complaint
fails to state a claim on which relief can be granted.
In
assessing a complaint for purposes of a motion to dismiss, the
court “separate[s] the factual allegations from the conclusory
statements in order to analyze whether the former, if taken as
true, set forth a plausible, not merely conceivable, case for
relief.”
Juarez v. Select Portfolio Servicing, Inc., 708 F.3d
269, 276 (1st Cir. 2013) (internal quotation marks omitted).
“If
the facts alleged in [the complaint] allow the court to draw the
reasonable inference that the defendants are liable for the
misconduct alleged, the claim has facial plausibility.”
Id.
(internal quotation marks omitted).
Discussion
The defendants move to dismiss the plaintiffs’ claim for
enhanced compensatory damages (Count XIII).
They argue that the
complaint does not allege that they exhibited “wanton, malicious,
or oppressive” conduct.4
“‘When an act is wanton, malicious, or oppressive, the
aggravating circumstances may be reflected in an award of
4
Although it does not affect the outcome of the defendants’
motion, the court notes that “‘enhanced compensatory damages’
. . . is a potential remedy, not a cause of action.” Stevens v.
Liberty Mut. Grp., Inc., 2013 WL 3895167. at *6 n.5 (D.N.H. July
29, 2013).
4
enhanced compensatory damages.’”
Stewart v. Bader, 154 N.H. 75,
87 (2006) (quoting Figoli v. R.J. Moreau Cos., Inc., 151 N.H.
618, 625 (2005)).
“Wanton conduct means that the actor is aware
that his actions are causing a great risk of harm to others,”
Johnson v. The Capital Offset Co., Inc., 2012 WL 781000, at *1
(D.N.H. Mar. 6, 2012), or that the actor recklessly creates a
risk of great harm, see Minion Inc. v. Burdin, 929 F. Supp. 521,
525 (D.N.H. 1996).
Malicious or oppressive actions are those
done with “ill will, hatred, hostility, or evil motive.”
Stewart, 154 N.H. at 87.
The plaintiffs allege that the defendants failed to provide
Colleen with an interpreter immediately after the operation
despite knowing that she would be unable to hear, and that the
defendants failed to make efforts to explain to Colleen what
happened during the operation for at least another eight hours
after Saunders’s initial attempt.
The plaintiffs allege that, as
a result of being left alone for several hours without any
explanation as to why she could not hear, Colleen was concerned
that she might die.
Drawing all reasonable inferences in the
light most favorable to the plaintiffs, those allegations
plausibly support a claim that the defendants recklessly created
a risk of great harm.
See Thompson v. Forest, 136 N.H. 215, 220
(1992)(“The defendant who acts in the belief or consciousness
that the act is causing an appreciable risk of harm to another
may be negligent, and if the risk is great the conduct may be
characterized as reckless . . . .”).
5
In addition, the plaintiffs allege that the defendants
retaliated against Colleen by threatening to withhold further
medical care and forcing her to sign a waiver surrendering her
right to an interpreter.
Viewing those allegations in the light
most favorable to the plaintiffs, the defendants’ conduct in
retaliating against Colleen could be considered malicious or
oppressive.
Therefore, at this preliminary stage, the plaintiffs
have alleged enough to state a claim for enhanced compensatory
damages.
Conclusion
For the foregoing reasons, the defendants’ partial motion to
dismiss (document no. 14) is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 7, 2014
cc:
Paul J. Bauer, Esq.
Peter W. Mosseau, Esq.
Kirk C. Simoneau, Esq.
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