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Tamara v. El Camino Hosp.

United States District Court, N.D. California

August 2, 2013

ABIGAYIL TAMARA, Plaintiff,
v.
EL CAMINO HOSPITAL; DAVID DIGANT; and DOES 1-20, Inclusive, Defendants

Page 1078

For Abigayil Tamara, Plaintiff: Catherine M. Cabalo, Celia Louise McGuinness, Paul Leslie Rein, LEAD ATTORNEYS, Law Offices of Paul L. Rein, Oakland, CA.

For El Camino Hospital, Digant Dave, Defendants: Aaron Thomas Schultz, LEAD ATTORNEY, Martin J. Everson, Galloway, Lucchese, Everson & Picchi, A Professional Corporation, Walnut Creek, CA.

OPINION

RONALD M. WHYTE, United States District Judge.

Page 1079

ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION [Re Docket No. 29]

Abigayil Tamara is a qualified disabled person who uses a service dog for independence and mobility. El Camino Hospital refused to allow her service dog to accompany her during a 2011 stay in its locked psychiatric ward. She sues for this alleged violation of her civil rights under federal and state law. Now, Tamara alleges that her ailing health requires in-patient treatment and El Camino's current service animal policy apparently prohibits

Page 1080

all service animals from its behavior health units, which include its locked psychiatric ward. Tamara requests a preliminary injunction requiring El Camino to admit service dogs unless it has substantive evidence based on an individualized assessment that the dog is a direct threat to the health and safety of the operation, which cannot be mitigated by reasonable accommodations. Defendants oppose the motion arguing that allowing service animals into a sensitive psychiatric ward would impose a danger that the hospital could not mitigate without fundamentally altering the nature of the facility.

I. BACKGROUND

Abigayil Tamara is a 70-year-old retired woman with a number of physical disabilities. Her primary condition is a mobility disability resulting from surgery for a herniated disk in 1994 and back fusion surgery in 2009. She has difficulty walking and maintaining her balance, and because of her back condition, she has had a disabled parking placard and a disabled license since 2007. Since June 2010, Tamara has used a service dog named Inglis. Tamara and Inglis trained extensively when they were matched, and they supplement training daily. She walks with him and balances by leaning on the rigid handle of his harness. Inglis also retrieves things, carries items, opens some doors, pushes handicapped and elevator buttons, helps Tamara take off her jacket, and puts her laundry in the laundry basket. Tamara alleges that her independence and mobility have greatly increased since being matched with Inglis and that it is important for her to take Inglis everywhere, not only because he provides important services for her, but also because this is part of the training and bonding requirement of owning a service dog.

Tamara also has bipolar disorder, a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. She has been on psychiatric medication since 1983, which causes a number of side effects, including diminishing her white blood cell count and compromising her immune system. In 1999, the Social Security Administration declared Tamara disabled because of her bipolar disorder.

Tamara exclusively uses the defendant, El Camino, for hospital services. Her psychiatrist and two of her medical doctors have privileges there, and she has been hospitalized five times at this hospital. She wears a bracelet through Lifeline Service that activates a machine in her home to communicate directly with El Camino.

A. 2011 Hospitalization

In December 2011, the medication changes ordered by her psychiatrist began causing Tamara pain. On December 24, 2011, Tamara went to the emergency room of El Camino with Inglis. El Camino admitted her to rebalance her medication and manage her pain. Although her condition was physical, not psychological, El Camino placed her in the psychiatric ward where her practicing psychiatrist worked, so that he could monitor her symptoms. When the orderly came to escort Tamara to the psychiatric ward, he informed Tamara that Inglis was not allowed in the hospital, allegedly stating that dogs have not been allowed since someone was bitten.

The next day, Tamara's treating psychiatrist wrote an order for Inglis to be admitted, but it was apparently disregarded. Tamara was allegedly informed that Infection Control, which was closed until December 27, would have to approve the dog. On December 27, Infection Control instructed Tamara that Inglis would not be approved unless he was tested for MRSA.

Page 1081

Tamara made arrangements for the test. On December 28, Tamara asked to meet with the manager of the psychiatric ward, defendant David Digant, who allegedly asserted that Tamara should transfer to another hospital because Inglis would not be allowed in the hospital under any circumstances.

During this time, El Camino provided Tamara with a walker, which she used for her entire thirteen-day stay. Tamara asserts that El Camino never allowed Inglis back into the hospital, even after Tamara was transferred out of the psychiatric unit. Tamara claims that the walker limited her movement, was awkward to use, and that she had more trouble carrying things and using the bathroom than she would have had with Inglis. She alleges that because she was deprived of Inglis, she was less independent, and had to wait extended periods for help with small tasks like picking up dropped items. She contends that after days of frustrating attempts to use the walker, she " gave up on everything" and asked for a portable toilet to use by her bed so that she would not have to go anywhere.

B. El Camino Hospital's Service Animal Policy

At the time of Tamara's hospitalization in 2011, El Camino Hospital's policy allowed service animals in all areas of the hospital except (1) areas with established traffic control, and (2) areas that the hospital determined necessary to restrict on a case-by-case basis in order to protect the health and safety of the patients. Decl. Bukant, Ex. A (" Old Policy" ), Dkt. No. 42-1. Currently, the Hospital's policy allows service animals " in any area of the Hospital that is unrestricted to inpatients, outpatients or visitors such as lobbies, cafeterias and patient rooms provided that the service animal does not pose a Direct Threat to the health and safety of others and would not require a fundamental alteration in the Hospital's policies and procedures." Decl. Bukant, Exhibit B (" New Policy" ), Dkt. No. 42-2. Under the New Policy, the Hospital does not allow the public or service animals in several " restricted access areas," which include its Behavioral Health Units (psychiatric wards). Id. at 2.

Currently, Tamara receives outpatient psychiatric treatment through the Older Adults Transitional Services program, but her condition requires her to consider inpatient treatment. Because she believes that El Camino never gave a consistent answer as to why it refused to let her use Inglis in 2011, Tamara alleges that admission to the hospital will once again result in her being deprived of Inglis. She alleges she is forced to choose between adequately addressing her health issues and maintaining her civil rights. Therefore, she seeks a preliminary injunction requiring El Camino Hospital to admit service dogs unless it has substantial evidence that a dog poses a " direct threat" to the health and safety of others that cannot be mitigated by reasonable modifications of policies, practices, or procedures in accordance with the law. El Camino Hospital opposes the injunction, asserting that the Hospital's policy of excluding service animals only in certain restricted areas, including the locked inpatient psychiatric ward, is consistent with the law. El Camino Hospital argues that ...


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