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AIKINS v. ST. HELENE HOSP.

February 2, 1994

ELAINE AIKINS, CALIFORNIA ASSOCIATION OF THE DEAF, Plaintiff (s),
v.
ST. HELENE HOSPITAL, JAMES LIES, M.D., Defendant (s).



The opinion of the court was delivered by: FERN M. SMITH

 INTRODUCTION

 Plaintiffs Elaine Aikins ("Mrs. Aikins") and California Association of the Deaf ("CAD") have brought suit against defendants St. Helena Hospital ("St. Helena," "the hospital") and Dr. James Lies ("Dr. Lies") under the Americans with Disabilities Act ("the ADA"), the Rehabilitation Act of 1973, and various California civil rights statutes. Both defendants have filed motions to dismiss or, in the alternative, for summary judgment. Defendants have also sought to have CAD dismissed from the lawsuit on the basis that CAD lacks standing.

 BACKGROUND

 The events giving rise to this lawsuit occurred between October 30 and November 4, 1992. Mrs. Aikins is a deaf woman whose husband, Harvey Aikins, suffered a massive cardiac arrest at approximately 8:00 p.m. on October 30, 1992. Following Mr. Aikins's attack, Mrs. Aikins went to the home of some neighbors and had them call 911. According to Mrs. Aikins, the paramedics arrived at her home approximately four minutes after the call to 911, which defendants assert was approximately fifteen minutes after Mr. Aikins suffered the attack. *fn1" The paramedics then transported Mr. Aikins to St. Helena Hospital.

 Subsequently, Mrs. Aikins went to the hospital's administrative office and made further attempts to secure interpreter services. At approximately 9:00 p.m., she was approached by a member of the hospital staff who sought to obtain her signature on forms consenting to the emergency procedure. Although the forms say that "your signature on this form indicates . . . (2) that the operation procedure set forth above has been adequately explained to you by your physician, (3) that you have had a chance to ask questions, [and] (4) that you have received all of the information you desire concerning the operation or procedure . . .," Mrs. Aikins claims that she was told only that "Dr. Lies needed [her] signature to permit him to perform surgery to save [her] husband's life." Dr. Lies claims that, although he believed that it was unnecessary under the circumstances to obtain Mrs. Aikins's consent to the surgery, "given [her] disability, [he] wanted her to be involved."

 Later that evening, Dr. Lies contacted Mrs. Aikins's daughter, Francine Stern, to request that she fly up to Calistoga from Los Angeles to help her mother. Ms. Stern, who was Mr. Aikins's stepdaughter, is a fluent signer. Ms. Stern told Dr. Lies that she would be unable to come up until November 2nd.

 Mrs. Aikins went to her husband's room at approximately 12:30 on the night of the operation. She claims that the nurse on duty told her that Mr. Aikins would not survive without life support and that Mrs. Aikins then requested that life support be discontinued. She then went to the administrative office, accompanied by a deaf friend, to request interpreter services again. Both the office and another nurse whom Mrs. Aikins and her friend later encountered in Mr. Aikins's room allegedly told Mrs. Aikins that the hospital had no means of procuring interpreter services.

 The following day, October 31, 1992, Mr. Aikins showed no neurologic improvement, prompting Dr. Lies to question Mrs. Aikins about the length of time between the heart attack and the arrival of the paramedics. Dr. Lies submits that it was during this questioning, seemingly conducted through Mrs. Aikins's in-laws, that he first learned that fifteen minutes, not four, had elapsed between Mr. Aikins's heart attack and the commencement of CPR. Based on this new information, Dr. Lies ordered an EEG. The EEG was performed on November 1, 1992, at 9:00 a.m. and revealed that Mr. Aikins had no brain activity.

 On November 2nd, Mrs. Aikins's daughter arrived and participated in a meeting with Dr. Lies and Mrs. Aikins. Mrs. Aikins claims that this meeting was the first opportunity that she had to communicate directly with Dr. Lies and to receive complete answers to her questions. As a result of the meeting, Mrs. Aikins requested that her husband's life support be discontinued. Mr. Aikins died two days later.

 Defendants have each filed motions to dismiss or, in the alternative, for summary judgment. Dr. Lies argues that he is not covered by the ADA; that the Rehabilitation Act is inapplicable; and that plaintiffs cannot recover against him on their state law causes of action. St. Helena argues that it complied with both the ADA and the Rehabilitation Act as a matter of law. Both defendants also submit that CAD is not a proper party to the action and that monetary relief is unavailable under the federal statutes.

 DISCUSSION

 I. Plaintiffs' Standing to Seek Injunctive Relief

 Defendants have challenged CAD's standing to participate in this lawsuit. *fn2" Although defendants concede Mrs. Aikins's standing, the Court has an independent obligation to consider this issue also, as it goes to the Court's jurisdiction. See Lujan v. Defenders of Wildlife, U.S. , 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Greater Los Angeles Council on Deafness v. Baldrige, 827 F.2d 1353, 1358 (9th Cir. 1987). Plaintiffs have the burden of establishing that they have standing to raise the claims asserted. *fn3" Defenders of Wildlife. U.S. at , 112 S. Ct. at 2136.

 The Supreme Court has developed a three-part test for standing, a constitutional prerequisite growing out of Article III's "case or controversy" requirement. See U.S. Const. art. I, § 2, cl. 1. The first prong of the test is the "injury in fact" requirement: "The plaintiff must have suffered an 'injury in fact' -- an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) 'actual or imminent, not 'conjectural' or 'hypothetical."" Defenders of Wildlife, U.S. at , 112 S. Ct. at 2136. The second and third elements of the test are causation and redressability. Id. As it is clear that defendants caused whatever violation of the relevant statutes may have occurred, and that a favorable decision of this Court would redress any injuries caused by violation of the statutes, only the first aspect of the inquiry is at issue here.

 City of Los Angeles v. Lyons, 461 U.S. 95, 105, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), established that a plaintiff seeking injunctive relief premised upon an alleged past wrong must demonstrate a "real and immediate threat" of repeated future harm to satisfy the injury in fact prong of the standing test. This requirement is independent of the substantive requirements for equitable relief. Id. at 111. In Lyons, the plaintiff was a black resident of Los Angeles who alleged that he had been subjected to a "chokehold" without provocation or justification during a routine traffic stop. Plaintiff brought suit against the officers involved in the incident and the city of Los Angeles, seeking both damages and injunctive relief. The Supreme Court held that plaintiff had no standing to pursue a claim for injunctive relief because he could not show that he was "realistically threatened by a repetition of his experience . . . ." Id. at 109. To make this showing, plaintiff "would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner." Id. at 105-06.

 Mrs. Aikins has not shown her standing to seek injunctive relief under Lyons. In her complaint, Mrs. Aikins alleges only that she is a deaf individual and within the protection of the ADA, the Rehabilitation Act, and various state statutes. Compl. P 4. Mrs. Aikins further states that she owns a mobile home seven miles from St. Helena Hospital and that she stays at the home for several days each year. Aikins Decl. P 2. These allegations do not establish the "real and immediate threat" of future harm that Lyons requires. Mrs. Aikins has shown neither that she is likely to use the hospital in the near future, nor that defendants are likely to discriminate against her when she does use the hospital. The Court cannot infer from Mrs. Aikins's limited experience with Dr. Lies and St. Helena Hospital that defendants routinely fail to comply with applicable anti-discrimination statutes.

 Plaintiffs rely on Council on Deafness, 827 F.2d at 1353, to establish their standing for injunctive relief. In that case, plaintiffs were GLAD, a nonprofit organization dedicated to furthering the interests of deaf and hearing-impaired individuals, an attorney for GLAD who had filed an administrative complaint with the Department of Commerce, and two deaf individuals acting on their own behalf and as representatives of a class of similarly situated persons. Plaintiffs sought a writ of mandamus against the Department of Commerce, alleging that the department had failed to act on an administrative complaint that charged a public television station with violation of the Rehabilitation Act for failure to provide closed-captioned hearing. Plaintiffs alleged that the department's failure to act on the complaint was itself a violation of the Act. In holding that plaintiffs had standing to pursue their claim for injunctive relief, the Ninth Circuit noted that "the actual or threatened injury required by Article III may exist solely by virtue of a statute that creates legal rights, the invasion of which creates standing." 827 F.2d at 1358. The court found that the Rehabilitation Act was such a statute.

 Council on Deafness is distinguishable from this case. Implicitly at issue in that case was whether defendant's alleged violation of the Rehabilitation Act was an "injury in fact" sufficient to confer standing on plaintiffs. If the claimed violation constituted an injury, there was no question as to the imminence of the harm occasioned by the injury. Plaintiffs had filed an administrative complaint, on which defendant had failed to act; thus, the claimed injury was ongoing. Here, by contrast, imminence has not been shown. Although an alleged violation of the ADA and the Rehabilitation Act is an injury sufficient to give rise to an Article III case or controversy, Mrs. Aikins has not shown that defendants' alleged discrimination is ongoing and that she is likely to be served by defendants in the near future. Mrs. Aikins's claims for injunctive relief are accordingly dismissed with leave to amend to show that Mrs. Aikins faces a real and immediate threat of future injury at the hands of defendants.

 CAD's standing to seek injunctive relief suffers from the same defects. An association seeking to bring suit on behalf of its members must show: (1) that its members would have standing to sue in their own right; (2) that the interests that it seeks to protect are germane to the organization's purpose; and (3) that neither the claim asserted nor the relief requested require the participation of individual members. Council on Deafness, 827 F.2d at 1358. CAD has alleged only that it is a nonprofit organization with at least eight hundred members, organized for the purpose of serving the needs of deaf individuals "through advocacy, education and referral," and that some members of CAD "have been or likely will be served by defendants . . . ." Compl. P 5. Although these allegations are sufficient to satisfy the second and third requirements for associational standing, Council on Deafness, 827 F.2d at 1358, they fail to show that CAD's members would have standing to sue in their own right. CAD's claims are accordingly dismissed with leave to amend to show standing to seek injunctive relief only.

 II. Plaintiffs' Claims under the Americans with Disabilities Act

 Plaintiffs claim that defendants violated the Americans with Disabilities Act ("ADA") by denying Mrs. Aikins access to information in connection with the treatment of her husband. The ADA provides, in pertinent part: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accomodations of any place of public accomodation by any person who owns, leases (or leases to), or operates a place of public accomodation." 42 U.S.C. § 12182(a) (West Supp. 1993).

 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 ...


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