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Ervine v. Desert View Reg'l Medical Center Holdings, LLC

United States Court of Appeals, Ninth Circuit

May 29, 2014

SIE ERVINE, as an individual and as Executor of the Estate of Charlene Elaine Ervine, deceased, Plaintiff-Appellant,
v.
DESERT VIEW REGIONAL MEDICAL CENTER HOLDINGS, LLC; GEORGES TANNOURY, M.D., a domestic corporation; GEORGES TANNOURY, M.D., an individual, Defendants-Appellees

Argued and Submitted, San Francisco, California: February 12, 2014.

Page 863

[Copyrighted Material Omitted]

Page 864

Appeal from the United States District Court for the District of Nevada. D.C. No. 2:10-cv-01494-JCM-GWF. James C. Mahan, District Judge, Presiding.

Dale H. Boam, Salt Lake City, Utah, argued the cause and filed the briefs for the plaintiffs-appellants. With him on brief was Norman N. Hirata, Las Vegas, Nevada.

Eric K. Stryker, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Las Vegas, Nevada, argued the cause and filed the brief for defendant-appellee Desert View Regional Medical Center Holdings, LLC.

John H. Cotton, Cotton, Driggs, Walch, Holley, Woloson & Thompson, Las Vegas, Nevada, argued the cause and Christopher G. Rigler filed the brief for defendants-appellees Georges Tannoury, M.D., a domestic corporation and Georges Tannoury, M.D., an individual.

Before: Diarmuid F. O'Scannlain and Mary H. Murguia, Circuit Judges, and Lynn S. Adelman, District Judge.[*] Opinion by Judge O'Scannlain.

OPINION

Page 865

O'SCANNLAIN, Circuit Judge:

We are presented with claims under the Rehabilitation Act against health care providers for failure to communicate effectively with a person who is deaf.

I

Charlene Ervine, who was deaf, died of cancer in November 2009. In the years before her death, she sought treatment at Desert View Regional Medical Center, a hospital serving Pahrump, Nevada, and from Dr. Georges Tannoury, a practitioner who owned Specialty Medical Center in tat town. Her husband, Sie Ervine, who is also deaf, accompanied her on many of her medical visits. Both Mr. and Mrs. Ervine communicated primarily through American Sign Language.

Mr. Ervine contends that Desert View and Dr. Tannoury on several occasions failed to take the steps necessary to communicate effectively with the Ervines about Mrs. Ervine's treatment. Specifically, neither provided the Ervines with an interpreter during their visits and neither was prepared to provide an interpreter when necessary.

According to Mr. Ervine, Desert View had refused to provide a sign-language interpreter from the first time Mrs. Ervine visited the hospital, in August 2007. As to Dr. Tannoury, Mrs. Ervine reported--as early as April 2008--to the Nevada Deaf and Hard of Hearing Advocacy Resource Center (" Advocacy Resource Center" or " the Center" ) that she was having problems with her doctor, who refused to provide her with an interpreter. Despite the Center's help, her difficulties with Dr. Tannoury's office continued. On November 12, 2008, an administrative assistant informed the Center that Dr. Tannoury's office did not " provide sign language interpreters" because it was " a private practice." The assistant later explained that Dr. Tannoury made such decisions and had " refused to provide" interpreters. The Ervines' difficulties with Desert View and Dr. Tannoury continued until Mrs. Ervine's death.

II

Mr. Ervine, individually and on behalf of his wife's estate, sued Desert View and Dr. Tannoury[1] on September 1, 2010, alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as well as negligent and intentional infliction of emotional distress under state law. He filed an amended complaint on September 14.

Dr. Tannoury moved for summary judgment, arguing that ...


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