United States District Court, D. New Hampshire
Colleen Collins, et al.
Dartmouth-Hitchcock Medical Center and James E. Saunders, M.D Opinion No. 2015 DNH 015
JOSEPH A. DiCLERICO, Jr., District Judge.
Colleen Collins and her sisters, Ruth Collins and Debra Ceriello, brought suit against Dartmouth-Hitchcock Medical Center ("DHMC") and Dr. James E. Saunders, alleging claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, along with state law claims. Their claims arose from Colleen's post-operative and subsequent treatment at DHMC related to her deafness. DHMC and Dr. Saunders move for summary judgment on all of the plaintiffs' claims. The plaintiffs object.
Standard of Review
Summary judgment is appropriate when "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). In deciding a motion for summary judgment, the court draws all reasonable inferences in favor of the nonmoving party. Foodmark, Inc. v. Alasko Foods, Inc. , 768 F.3d 42, 47 (1st Cir. 2014). "A genuine issue of material fact must be built on a solid foundation-a foundation constructed from materials of evidentiary quality" so that "conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative will not suffice to ward off a properly supported motion for summary judgment." Garcia-Gonzalez v. Puig-Morales , 761 F.3d 81, 87 (1st Cir. 2014).
In response to a properly supported motion for summary judgment, opposing parties must provide competent record evidence that shows there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986); Mosher v. Nelson , 589 F.3d 488, 492 (1st Cir. 2009). The plaintiffs, who are represented by counsel, did not provide "a short and concise statement of material facts, supported by appropriate record citations, as to which [the plaintiffs] contend a genuine dispute exists so as to require trial." LR 56.1(b). Instead, the plaintiffs titled the section that is nearly their entire memorandum as "Disputed Material Facts." That section is not limited to factual statements with record citations but instead includes citations to statutes and cases and argument interspersed with the factual statements. The plaintiffs' failure to follow the applicable local rule both unnecessarily complicated the process of assessing their objection to summary judgment and, to some extent, undermined the effectiveness of their arguments.
Colleen Collins has had hearing loss since childhood and has been a patient at DHMC since 1967. Over time, Colleen became profoundly deaf and received a cochlear implant. During her treatment at DHMC, Colleen communicated with her providers by lip reading, with the assistance of the cochlear implant.
Dr. James E. Saunders is an otolaryngologist who began treating Colleen in 2009. At an appointment in August of 2011, Dr. Saunders and Colleen discussed her cochlear implant that was beginning to fail. As in previous meetings, Colleen and Dr. Saunders communicated by voice and lip reading. They discussed a plan to replace the failing implant with a new one that would become operational within approximately thirty to forty-five days after the surgery. Surgery was scheduled for September 16, 2011.
Colleen had never requested an American Sign Language ("ASL") interpreter for her appointments at DHMC. Dr. Saunders did not know that Colleen understood ASL. Beginning in 2007, DHMC began a program, known as CMapp, that schedules ASL interpreters for appointments at DHMC whenever a patient requests an interpreter.
On September 16, 2011, Colleen arrived for surgery accompanied by her sisters, Ruth and Debra. During the surgery, Dr. Saunders removed the failing cochlear implant but found a cholesteatoma, an abnormal growth in Colleen's middle ear. He removed the cholesteatoma, but the area had to heal before he could insert a new cochlear implant.
After the surgery, Dr. Saunders and Stella McHugh met with Ruth and Debra to explain the results. McHugh is a clinical audiologist and cochlear implant audiologist at DHMC. Dr. Saunders explained the cholesteatoma and its consequences. To assist their understanding, Dr. Saunders drew a diagram of the inner ear, showing the location of the cholesteatoma. He told Ruth and Debra that he had removed the failing cochlear implant and the cholesteatoma but that additional surgery would be needed in four to six months, after the area had healed, to insert a new cochlear implant. During the meeting, Debra and Ruth mentioned that Colleen knew ASL, which surprised Dr. Saunders and McHugh because Colleen had never mentioned using ASL and had never asked for an ASL interpreter.
During the post-surgery meeting, Dr. Saunders told Debra and Ruth that Colleen had a tumor, the cholesteatoma. Debra understood the cholesteatoma was abnormal cell growth, scar tissue growth, and was an enzyme that had dissolved bone in Colleen's ear canal and was working its way into the skull. Further, every cell had to be scraped out because if any were left behind they would grow, get into her brain, and kill her. Debra said that the diagram Dr. Saunders drew was very helpful in understanding what he was explaining. Debra asked who would explain the outcome of the surgery to Colleen. Dr. Saunders said that he would explain it and that it was his job to do that.
As soon as Colleen could have visitors, Debra and Ruth went in to see her. Colleen could see from their faces that they had been crying and asked what was wrong. Debra said she should wait for the doctor and that everything was fine. When Dr. Saunders arrived, Debra asked him how he would communicate with Colleen when she was "drugged, " could not hear, and did not have her glasses, and he responded that he would have to write big enough for her to see.
Although Dr. Saunders does not usually discuss surgical results with patients immediately after surgery, he wanted to tell Colleen directly about the unexpected finding during surgery, the cholesteatoma, and that he had not been able to insert the new cochlear implant. Colleen was groggy from anesthesia, had a bandage on her head, and did not have her glasses which she relied on heavily because of deficiencies caused by a disorder known as Turner Syndrome. In addition, without a cochlear implant, Colleen was completely deaf.
Dr. Saunders communicated with Colleen verbally and by writing on a white pad of paper. He also used the diagram of the inner ear that he had drawn while meeting with Ruth and Debra to show the location of the cholesteatoma. Debra and Ruth were present during the first meeting between Colleen and Dr. Saunders, although Ruth may not have stayed in the room for the entire meeting. The first note that Dr. Saunders wrote on the pad was:
Everything was OK with surgery except that I was not able to put the new implant in now. You had a cholesteatoma and we will have to wait 4-6 months before we can put the new implant in. This was the only safest thing to do. Unfortunately we had to take the old one out - so you will be without for a few months.
Debra also talked with Colleen during the meeting, and she felt that Dr. Saunders relied on her to some extent to communicate with Colleen. The first meeting was brief, and Dr. Saunders left for another surgery.
Debra stated in her deposition that Dr. Saunders did not explain details about the cholesteatoma to Colleen, so Debra told Colleen the additional information that Dr. Saunders had given Debra and Ruth. Colleen kept asking, "I'm going to die? I'm going to die?" Her sisters reassured her that she was not going to die, but Colleen was focused on the word "die" rather than the other information about her surgery.
Several hours later, Dr. Saunders returned to see Colleen. Debra thought that the second page of Dr. Saunders's notes was from the second meeting and that she, Debra, wrote additional notes on the page. In ...