A. The ADA Does Not Apply to Dr. Lies
Dr. Lies contends that plaintiffs' claims against him under the ADA must fail because the Act does not apply to him in his capacity as an independent contractor with St. Helena. The regulations implementing the ADA alter the language of the statute slightly to read as follows: "No individual shall be discriminated against on the basis of disability . . . by any private entity who owns, leases (or leases to), or operates a place of public accomodation." 28 C.F.R. § 36.201(a) (1993). The preamble to the regulation notes that the change was designed to make clear that the regulation "places the ADA's nondiscrimination obligations on 'public accomodations' rather than on 'persons' or 'places of public accomodation.'" 36 C.F.R. App. B § 36.104 (1993).
The statute and the regulation both indicate that individuals may be liable under the ADA if they "own, lease (or lease to), or operate" a place of public accomodation. 42 U.S.C. § 12182 (a); 28 C.F.R. § 35.201(a) (1993). The use of language relating to ownership or operation implies a requirement of control over the place providing services. Dr. Lies, however, is an independent contractor with St. Helena. Lies Decl. P 3. He is not on the hospital's board of directors, and he has no authority to enact or amend hospital policy. Id. Because he lacks the power to control hospital policy on the use of interpreters, this Court holds that Dr. Lies is not a proper defendant under the ADA.
Plaintiffs contend that this construction of the ADA undercuts the Act's purpose. Noting that the Act defines "public accomodation" to include the "professional office of a health care provider," 42 U.S.C. § 12181(7)(F) (West Supp. 1993), plaintiffs maintain that the Act would clearly cover Dr. Lies had he provided services to Mr. and Mrs. Aikins at his own office. They argue that he should not be able to escape liability under the ADA merely because in this case he provided services outside his office. "To hold otherwise," plaintiffs suggest, "would allow individuals to discriminate whenever they provide part of their services outside of their place of public accomodation while disallowing the very same type of discrimination for those services provided at the place of public accomodation."
Plaintiffs' policy argument does not warrant a departure from the statute's implicit requirement of ownership or control. The Court's construction of the Act is not at odds with the ADA's fundamental purpose of eliminating discrimination against individuals with disabilities, see 42 U.S.C. § 12101(b)(1) (West Supp. 1993), because it retains accountability for those in a position to ensure nondiscrimination.
B. St. Helena Has Not Shown That It Complied with the Act as a Matter of Law
St. Helena does not dispute that the ADA applies to it, see 42 U.S.C. § 12181(7)(F), but claims that it complied with the Act as a matter of law. Alternatively, St. Helena argues that compliance is excused, as it would impose an undue burden on the hospital. The regulations implementing the ADA provide that a "public accomodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities." 28 C.F.R. § 36.303(c) (1993). This requirement is tempered by the general qualification that a public accomodation may treat disabled individuals in need of auxiliary aids and services differently from other individuals if "the public accomodation can demonstrate that [ensuring equality of treatment] would . . . result in an undue burden, i.e. significant difficulty or expense." § 36.303(a) (1993).
St. Helena bases its contention that it complied with the ADA as a matter of law on the following evidence and allegations: that its human resources department had in place a policy of providing interpreters to those in need of them; that the hospital posted signs notifying the public that information about T.D.D. services could be obtained by going to the switchboard; that the switchboard operator and the office of human resources maintained lists of interpreters; that Mr. Aikins's medical records contain a statement that "there were interpreters present at all times during the discussion with the patient and the family"; and that "the complaint is replete with descriptions of instances where information was exchanged between plaintiff Aikins and members of the St. Helena hospital staff." Defendant argues alternatively that provision of an interpreters on a twenty-four hour a day basis would impose an undue burden on the hospital.
The record does not reveal that St. Helena complied with the ADA as a matter of law. St. Helena has not demonstrated that it communicated effectively with plaintiff Aikins during her husband's stay in the hospital. Indeed, the hospital's allegations that communication was effective are undercut not only by plaintiff's own account of the episode but also by the fact that, for between twenty-four to thirty-six hours, Dr. Lies was under the concededly mistaken impression that Mr. Aikins had been without CPR for only four minutes following his heart attack, a critical fact. See Lies Decl. PP 4, 9. Furthermore, although the regulations provide that the hospital "shall furnish" appropriate auxiliary aids and services for non-hearing individuals, § 36.303(c), it appears that St. Helena relied almost exclusively on Mrs. Aikins to provide her own interpreters. There exists a genuine dispute as to the issue of St. Helena's compliance with the ADA.
Finally, the Court cannot say as a matter of law that provision of interpreters would have imposed an undue burden on the hospital. The regulations set out criteria for determining whether a proposed accomodation imposes an undue burden within the meaning of section 36.303(a). Section 36.104 provides, in pertinent part:
In determining whether an action would result in an undue burden, factors to be considered include -- (1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation . . . ; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
§ 36.104 (1993). The question whether provision of interpreter services on some basis would pose an undue burden on St. Helena raises material issues of fact.
Dobard v. San Francisco Bay Area Rapid Transit District, 1993 U.S. Dist. LEXIS 13677, 1993 WL 372256 (N.D. Cal. Sept. 7, 1993), cited by defendant, does not warrant a different conclusion. In that case defendant transit authority provided plaintiff with both a sign language interpreter and a sound amplification device in connection with his attendance at a public board meeting. Plaintiff argued that defendant nonetheless violated the ADA by refusing to provide plaintiff with a computer aided transcription device, the auxiliary aid of his choice. The court in Dobard found that plaintiff had failed to state a claim for violation of the ADA, as defendant was not required to employ the most advanced technology but only to ensure that communication was effective. Plaintiffs herein are not arguing for an absolute right to a particular auxiliary aid. Rather, they claim a right to effective communication with the hospital. St. Helena, unlike the defendant in Dobard, allegedly made no effort to provide Mrs. Aikins with auxiliary aids, relying upon Mrs. Aikins to marshal her own communication resources.
III. Plaintiffs' Claims under the Rehabilitation Act
A. Mrs. Aikins Is an "Otherwise Qualified" Individual within the Meaning of the Act
Plaintiffs have raised claims under section 504 of the Rehabilitation Act of 1973. Section 504 provides, in pertinent part: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ."
29 U.S.C. § 794(a) (West Supp. 1993). Section 794a provides a private right of action for violations of section 794. See 29 U.S.C. § 794a(b) (West 1985); Smith v. Barton, 914 F.2d 1330, 1337-38 (9th Cir. 1990), cert. denied, U.S. , 115 L. Ed. 2d 995, 111 S. Ct. 2825 (1991). Defendant Lies argues that plaintiffs' claims under section 504 should be dismissed because plaintiff Aikins is not an "otherwise qualified" individual within the meaning of the Act.
In Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990), the Second Circuit addressed a similar issue. The plaintiffs in Rothschild were deaf parents of hearing students who claimed that their school district was violating the Rehabilitation Act by refusing to provide interpreters for plaintiffs at meetings to which the school invited parents. Defendants argued that plaintiffs were not "otherwise qualified" to take advantage of the school district's primary service, education.
The Rothschild court found that defendants had "seriously misapprehend[ed] the import of section 504." Observing that the regulations interpreting section 504 define "qualified handicapped person"
broadly to include "a handicapped person who meets the essential eligibility requirements for the receipt of such services," see 34 C.F.R. § 104.3(k) (1993), the Second Circuit concluded that the Act applies to all services offered by a covered entity, not just those relating to the entity's central function. "The fact that a particular recipient institution is primarily engaged in the provision of one category of service does not exempt it from Regulation 104.3(k) in its provision of other services." 907 F.2d at 291.
Although Rothschild is not binding upon this Court, its reasoning is sound. That Mrs. Aikins was not a patient at St. Helena should not preclude her from raising claims under the Rehabilitation Act based on the hospital's failure to communicate effectively with her in connection with its treatment of her husband. Mrs. Aikins was "otherwise qualified" to discuss her husband's condition with hospital officials, including Dr. Lies.
Defendant Lies next argues that California law precludes Mrs. Aikins from being "otherwise qualified" in the circumstances presented by this case. He submits that Mrs. Aikins's consent to the procedures performed on her husband was not necessary; as a consequence she was not required to be consulted or kept informed of her husband's condition. Defendant attempts to analogize from Bowen v. American Hospital Association, 476 U.S. 610, 630, 90 L. Ed. 2d 584, 106 S. Ct. 2101 (1986), wherein a plurality of the Court stated that a "hospital's withholding of treatment when no parental consent has been given cannot violate § 504." The plurality reasoned that, in the absence of the required parental consent, the infant is neither "otherwise qualified" within the meaning of the Act, nor denied treatment "solely because of his handicap." Defendant maintains that Mrs. Aikins is not "otherwise qualified" because her consent to her husband's treatment was not required.
Defendant's argument is unavailing. Dr. Lies's argument that emergency circumstances vitiated the requirement of informed consent is undercut by his own statement that, "though it was clear to me that Mr. Aikins presented an immediate medical emergency, thus making informed consent unnecessary, I had time to, and so did seek to, advise Mrs. Aikins and obtain her consent." Lies Decl. P 6. Having undertaken to obtain Mrs. Aikins's consent, defendant was obligated to do so in a nondiscriminatory manner. See Rothschild, 907 F.2d 286; 34 C.F.R. § 104.4(b)(1) (1993) ("A recipient, in providing any . . . service, may not . . . on the basis of handicap . . . afford a qualified handicapped person an opportunity to participate in or benefit from the . . . service that is not equal to that provided others . . . ."). More important, Mrs. Aikins's claims relating to inadequate communication span a period of almost seventy-two hours, from the time of her husband's admission to the hospital until the time that his life support was disconnected. Whatever emergency existed at the time of Mr. Aikins's admission to the hospital had subsided by the time the decision was made to discontinue his life support. See, e.g., Cal. Bus. & Prof. Code § 2397(c)(3) (West 1990). Finally, Bowen is distinguishable. That case essentially involved a failure of causation. It was the parents' refusal of consent, not the infant's disability, that would have resulted in the denial of treatment.
By contrast, it was precisely Mrs. Aikins's disability that caused defendants to communicate with her in an allegedly inadequate manner.
B. Defendants Have Not Shown That They Complied with the Act as a Matter of Law
Defendants finally argue that they complied with the Rehabilitation Act as a matter of law. Defendant Lies argues that Mr. Aikins received precisely the same treatment that he would have received had Mrs. Aikins not been deaf. Defendant St. Helena maintains that it provided all that it was required to provide under the Act.
Both arguments are without merit. Even if Mr. Aikins received exactly the care that he would have received had Mrs. Aikins not been deaf, Dr. Lies misses the point. Mrs. Aikins's claims relate to her exclusion from meaningful participation in the decisions affecting her husband's treatment, not to the appropriateness of the treatment itself. See § 794(a); Rothschild, 907 F.2d 286. As to the hospital's argument, the Court cannot infer from defendant's reference to its policies on interpreters and its own self-serving statements that it communicated effectively with plaintiff at all times that it complied with the Rehabilitation Act as a matter of law.
IV. Availability of Damages under the Federal Statutes
Defendants argue that Mrs. Aikins is not entitled to compensatory relief under either the ADA or the Rehabilitation Act. They are correct about the ADA. In cases involving claims under subchapter three of the ADA, the Act provides only for injunctive relief. Section 12188(a)(1) states that the remedies available to persons subjected to discrimination in violation of that subchapter are those set forth in 42 U.S.C. section 2000a-3(a). 42 U.S.C. § 12188(a)(1) (West Supp. 1993). Section 2000a-3(a) provides: "Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief . . . may be instituted by the person aggrieved . . . ." 42 U.S.C. § 2000a-3(a) (West 1981). In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968), the Supreme Court held that a plaintiff suing under section 2000a-3(a) cannot recover damages. Plaintiffs appear to concede the unavailability of compensatory relief under the ADA in their opposition papers. See Opposition 6:15-16 ("Plaintiff Aikins bases her federal claim for compensatory relief on Section 504.").
Because plaintiffs lack standing on the present record to assert claims for injunctive relief, the unavailability of damages under the ADA requires dismissal of all claims under the ADA. Such dismissal is without prejudice to plaintiffs' reinstating the ADA claims for injunctive relief upon a proper showing of standing.
As to Mrs. Aikins's claims under the Rehabilitation Act, the Ninth Circuit has held that damages are available for violations of the Act. Section 794a provides, in pertinent part: "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [codified at 42 U.S.C. section 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance . . . under section 794 of this title." 29 U.S.C. § 794a(a)(2) (West 1985). Exhaustion of administrative remedies is not a prerequisite to suit in the Ninth Circuit. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017, 1021 (9th Cir. 1983), cert. denied sub nom. Gottfried v. U.S., 467 U.S. 1252, 82 L. Ed. 2d 840, 104 S. Ct. 3535 (1984). The settled interpretation of section 794a in the Ninth Circuit is that money damages are available for violations of section 504 of the Rehabilitation Act, codified as section 794 of Title 29 of the United States Code. See, e.g., Smith v. Barton, 914 F.2d 1330, 1337-38 (9th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2825 (1991). Defendants' arguments that the Ninth Circuit has misconstrued the Act are made to the wrong court.
V. Plaintiffs' State Law Claims
Dr. Lies moves to dismiss or, in the alternative, for summary judgment on plaintiffs' state law claims.
Plaintiffs have asserted claims under Civil Code sections 51 and 54.1; Government Code section 11135, and Health and Safety Code section 1259. See Cal. Civ. Code §§ 51, 54.1 (West Supp. 1994); Gov't. Code § 11135 (West Supp. 1994); Health & Safety Code § 1259 (West Supp. 1994). Dr. Lies argues that the state statutes do not apply to him in his capacity as a staff doctor at St. Helena; that he complied with the statutes as a matter of law; and that Mrs. Aikins cannot recover damages under those statutes.
A. Civil Code Section 51
The Unruh Civil Rights Act, codified at Civil Code section 51, provides, in pertinent part:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accomodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever . . . A violation of the right of any individual under the Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section.