Mass. Gen. Hosp. v. Comm’r of the Div. of Med. Assistance

REIMBURSEMENT

Mass. Gen. Hosp. v. Comm’r of the
Div. of Med. Assistance, No. 05-P-642 (Mass. App. Ct. June 8, 2006)

A hospital
sought review after the state’s Division of Medical Assistance denied reimbursement
for inpatient services provided to three Medicaid patients. The Division deemed
the services "medically unnecessary," because the
hospital could have addressed the patients’ needs through outpatient observation
services. The hospital challenged the Division’s ruling, claiming that the
regulations were vague and inconsistent with federal legislative mandate, and
the Division’s finding was not supported by the evidence. The appellate court
upheld the Division’s ruling against the first two challenges and remanded
the case to lower court to address the hospital’s third challenge. The court
held that the regulations provided sufficient guidance as to when inpatient
hospital admission would not be necessary. Also, the court determined that
the Division did not impermissibly rely on hindsight in evaluating the appropriateness
of the hospital’s decision to admit.

 

 

Martin v. Ohio County Hosp. Corp. (Full Text)

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RENDERED : OCTOBER 1, 2009
TO BE PUBLISHED
,,VUyrrMr Caurf of ~itnfurhv
2008-SC-000211-DG

TINA MARTIN, ADMINISTRATRIX OF THE
ESTATE OF BILLIE CAROL SHREVE,
DECEASED ; AND DONALD RAY SHREVE,
INDIVIDUALLY

APPELLANTS

V .

ON REVIEW FROM COURT OF APPEALS
CASE NO . 2006-CA-002248-MR
OHIO CIRCUIT COURT NO . 03-CI-00178

OHIO COUNTY HOSPITAL CORPORATION

APPELLEE

OPINION OF THE COURT BY JUSTICE NOBLE

REVERSING

The Appellants in this action, Tina Martin, Administratrix of the Estate of

Billie Carol Shreve, Deceased, and Donald Ray Shreve, Individually, were

granted discretionary review of the Court of Appeals’ reversal of the trial court’s

judgment . Two issues are raised : Whether a surviving spouse is entitled to

loss of consortium damages beyond the death of the injured spouse for the

unlawful acts of a third party ; and whether the Appellee, Ohio County Hospital

Corporation, was entitled to a directed verdict on a claim under the Emergency

Medical Treatment and Active Labor Act, 42 U .S .C . § 1395dd . This Court

reverses the decision of the Court of Appeals .

I . Background

The decedent in this action, Billie Carol Shreve, was injured in an

automobile accident a short distance from the hospital run by Appellee, Ohio

County Hospital Corporation . She was properly taken to the hospital’s

emergency room, and was first seen by a registered nurse who performed

triage . The patient had indications of blunt abdominal trauma and stated that

she was uncomfortable, and although she otherwise appeared stable at first,

rapidly deteriorated . Her blood pressure began to drop severely and her pulse

rate elevated approximately an hour and twenty-five minutes after arriving at

the hospital, and she lapsed into unconsciousness some nine minutes later .

The nurse and doctor attending her testified that by that time, they believed

she had gone into shock, was probably hemorrhaging, and was in need of a

surgeon . However, there was no surgeon available to the hospital, or one was

not called . The attending physician could not pinpoint the source of bleeding,

but ordered blood transfusions . This treatment gave rise to a negligence claim

that is not before the Court . Despite no surgeon being available, the patient

was not transferred to an appropriate facility at that time . Instead, the

attending physician ordered a CT scan, but had to forward the films to another

hospital to have a radiologist read them .

It was over four hours later before the

patient was transferred to another hospital . By the time she arrived, the

patient had bled to death .

The medical negligence action against the physician was settled before

trial, and the driver who caused the accident was never made a party . The trial
court gave an instruction on loss of consortium damages that limited those
2

damages to the brief period from the time of the accident until Mrs . Shreve’s

death and to a total of $250,000 . The jury awarded the maximum under this

instruction .’ Appellant Donald Ray Shreve offered a . post-death loss of

consortium instruction which the court declined, but he did not appeal this

denial .

The trial court also gave an apportionment instruction on the fault of the

driver, the doctor, and the hospital . The jury awarded no fault against the

driver, 50% of fault against the doctor, and 50% against Appellee . On appeal,

the Court of Appeals held that Appellee was entitled to a directed verdict both

on the claim made by Appellant, Donald Ray Shreve, the spouse of the

decedent, for loss of consortium, and on the claim made under the Emergency

Medical Treatment and Active Labor Act, (EMTALA), 42 U .S .C . § 1395dd . This

Court granted discretionary review .

A . Loss of Consortium after Death

The issue of whether a spouse may claim loss of consortium after the

death of her spouse turns on what the silence of the legislature on that issue in

KRS 411 .145 means .

At common law, loss of consortium was historically a one-way street . A

husband could claim loss of consortium with his wife up until her death, but a

wife could not claim the same loss with her husband . Then, in 1970, this

Court’s predecessor in Kotsiris v . Link , 451 S .W .2d 411 (Ky . 1970), expanded

1 The instruction stated that the jury could award money damages for the “[1]oss of
Plaintiff, Donald Ray Shreve, of the services, assistance, aid, society, companionship,
and conjugal relationship of his wife, not to exceed $250,000 .00 . Any recovery for
loss of consortium ended with the death of M[r]s . Shreve .”
3

the cause of action for loss of consortium to allow a wife the same claim . That

same year, KRS 411 .145 was enacted, and states as follows :

(1) As used in this section “consortium” means the right to
the services, assistance, aid, society, companionship and conjugal
relationship between husband and wife, or wife and husband .
(2) Either a wife or husband may recover damages against a third
person for loss of consortium, resulting from a negligent or wrongful act
of such third person .

The statute defines “consortium” in such a way that it does not

necessarily include financial support, but can be read to cover only the

emotional and physical elements of a relationship between husband and wife

such as love, companionship, and sexual relations . As such, it does not cause

a double recovery through a wrongful death action claiming economic loss .

Also, contrary to the common law up until Kotsiris , either a husband or wife

may recover damages for this loss from a culpable third party . On its face, the

statute gives equality for loss of consortium to both spouses, and codifies loss

of consortium as a cause of action .

However, loss of consortium developed as a common law concept, and

under common law it terminated with the death of the spouse . The reasoning

was that death terminated any possibility of a spousal relationship, and thus

all loss would be covered by a wrongful death action . See generally Thomas

Cooley, A Treatise on the Law of Torts 470 (3d ed . 1906) . Grounded initially on

the loss of sexual congress, the common law doctrine evolved to include the

“softer” aspects of a relationship, and finally, in Kotsiris , an equal claim for

either spouse .

But with the enactment of the statute, the General Assembly made loss

of consortium a statutory cause of action, which belongs specifically to a

spouse, not to the estate of the deceased . The statute is silent as to whether

such a claim is limited to the loss up until the spouse’s death or extends

beyond it . At common law, as noted above, loss of consortium claims ended at

death . An argument can be made that the legislature intended to codify the

cause of action of loss of consortium as it existed at common law, and thus the

silence must be interpreted to mean that the claim still ends at death . But an

equally viable argument can be made that if legislators had so intended, they

would have said so . Instead, the statutory language is a broad grant without

stated limitations of any kind, subject only to the general principles of tort law

and the procedural rulings of the courts .

Thus the Court is left to construe the statute until the legislature clarifies

its meaning by amending the statute or enacts a different statute .

Appellant argues that spouses have a loss of consortium claim extending

beyond the death of their spouse because this Court extended such a right to

children in Giuliani v . Guiler , 951 S.W .2d 318 (Ky . 1997) . Finding that “[t]he

claim of loss of parental consortium is a reciprocal of the claim of the parents

for loss of a child’s consortium which was recognized in KRS 411 .135,” id . at

321, this Court determined that recognizing a parent’s right to loss of love and

affection of a child and not allowing the converse for the child ran counter to
public policy which favors strengthening family bonds .
It is interesting to note
that the statute limits the parents’ recovery to the time it would have taken a

child to reach majority, but this Court did not specify such a restriction on the
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child’s claim for loss of consortium . The opinion is completely silent as to the
duration of the damages . In other ways, however, this case is significantly

different from Guiler .

First, there is a statute which gives spouses a claim for loss of

consortium . To date, there is still no statute which gives children a right to

parental loss of consortium damages . Contra, KRS 411 .135 gives parents

damages for loss of consortium with the child . That statute, which this Court

in Guiler termed as “reciprocal” to a child’s loss of parental consortium claim,

does not appear to create a separate cause of action, but instead begins, “In a

wrongful death action in which the decedent was a minor child,” and goes on to

say that the loss of affection and companionship is an element of damages to

be recovered “in addition to all other elements of the damages usually

recoverable in a wrongful death action .” This appears to be an additional

element of damages within the wrongful death statute, not a separate cause of

action for loss of consortium . Nevertheless, this Court has held that the

parents of a deceased child do have a claim under this statute for the loss of

affection and companionship of their child regardless of whether the personal

representative of the child’s estate ever asserts a claim for wrongful death .

Dep’t of Educ . v . Blevins , 707 S.W .2d 782, 785 (Ky . 1986) . That opinion

followed the Guiler decision, and is consistent with the notion that loss of

consortium is a personal rather than an estate right . The statutes do not give

children such a personal claim ; that was done by the Court in Guiler .

KRS 411 .145, which was enacted in 1970, the same year the Court

issued its opinion in Kotsiris , says that a wife or a husband “may recover
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damages against a third person for loss of consortium” resulting from a
negligent or intentional act, clearly establishing a separate cause of action for

spousal loss of consortium . Such a recovery is not premised on the spouse’s

death, so it is not specifically a part of a wrongful death claim under Kentucky

law . Loss of consortium damages can be obtained whenever a spouse is

wrongfully incapacitated by a third party to the extent that the marital

relationship has been damaged due to that harm . A loss of consortium action

can continue even when the injured spouse or the estate has settled or

otherwise been excluded from an action, because there is not a “common and

undivided interest” in the spouse’s claim for loss of consortium and the

underlying tort claim . Poplar v . KKI, LLC , 2005 WL 2739158 (W .D . Ky . 2005)

(unpublished decision) ; see also Blevins , 707 S .W .2d at 783 . Thus, because

the legislature has spoken on this subject, this is not a matter of the Court

declaring the common law as it did in Guiler .

But just as the Court did not address whether loss of parental

consortium continues after the age of majority in Guiler , the legislature has not

addressed specifically in the statute whether loss of consortium damages

continue after the death of the spouse in KRS 411 .145 . This question was not

at issue in Guiler , but is the controlling question here . Thus this Court must

answer that question, and does so by saying that loss of consortium damages

under KRS 411 .145 do not cease at death .

The Court reaches this conclusion by first looking at the language of the

statute : “a wife or a husband may recover damages .” Those damages, as

enumerated in subsection (1), encompass “services, assistance, aid, society,
7

companionship and conjugal relationship .

. . .” KRS 411 .145(1) . When this loss

results from a “negligent or wrongful act” of a third person, the legislative

intent is clear that this person must compensate the spouse for the loss . The

general focus of this statute is compensatory in nature .

The courts have been exhorted that “common sense must not be a

stranger in the house of the law .” Cantrell v . Kentucky Unemployment Ins .

Comm’n , 450 S .W .2d 235, 237 (Ky . 1970) .

It is apparent that the kinds of

damage elements enumerated in the statute are those that describe the

personal relationship, mental and physical, between spouses .

It is equally

apparent that the pain and deprivation coming from loss of such interactions

does not magically disappear the day a spouse dies .

It defies common sense to

put a value on such losses while a spouse is lying incapacitated, but to say the

loss is worthless after death . While grief and loss are borne in different ways

by different people, it is nonetheless a common part of the human condition

that a jury can properly evaluate based on the facts and circumstances of each

case .

Further, since the statute is intended to be compensatory, full

compensation cannot be had if the damages claimed are required to terminate

at death . Indeed, in many cases death is so sudden or follows so quickly after

the injury that to cut loss of consortium damages off at death is to essentially

deny the cause of action to the spouse altogether . In creating the cause of
action, the legislature did not indicate in the statute that it applied only when

the victims survived . To read the statute that way would be to create a class of

plaintiffs whose cause of action depended on the vagaries of fate, rather than
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an orderly operation of law . Can it reasonably be said that one whose spouse

survives suffers more loss of consortium than one whose spouse dies?

Moreover, allowing a loss of consortium claim only if the victim survives

would appear to give perverse incentives to potential tortfeasors . Such a rule

could create incentives to kill victims instead of leaving them disabled, as only

by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of

consortium damages . While this logically follows the common law rule, it is

obviously absurd .

Twenty-six other states have some form of loss of spousal consortium set

forth in a statute, as Kentucky has done, although Kentucky appears to be

unique in that our statute does not address whether such damages terminate

or continue at death . All of these other states specifically recognize that the

types of damages set forth in KRS 411 .145 continue after death, usually by

including them as elements of damage in their wrongful death statutes . Some

states, such as Iowa, include the damages in the wrongful death action, and

require that the claim be made by the personal representative of the estate, but

on behalf of the spouse who lost consortium . Regardless of the mechanism

2 Alaska Stat . § 09 .55 .580(c) (2003) ; Ark . Code Ann . § 16-62-102(fl(1) (2006) ; Colo .
Rev . Stat . § 13-21-203(1)(a) (2005) ; Conn . Gen . Stat . § 52-555a to -555b (2005) ; Fla .
Stat . § 768 .21(2) (2003) ; Haw . Rev . Stat . § 663-3(b)(1)-(2) (2009) ; Ind . Code . § 34-23-
1-2(c)(3)(B) (1999) ; Kan . Stat . Ann . § 60-1904(a)(2)-(3) (2008) ; La. Civ . Code Ann . Art .
2315(B) (2001) ; Me . Rev . Stat . Ann . tit . 18-A, § 2-804(b), amended by 2009 Me . Legis .
Serv . 180 (West) ; Md . Code Ann ., Cts . 8s Jud . Proc . § 3-904(d) (West 2006) ; Mass .
Gen . Laws ch . 229, § 2 (2000) ; Mich . Comp . Laws § 600 .2922(6) (2005 8v Supp .
2007) ; Mo . Rev . Stat . § 537 .090 (2000) ; Mont . Code . Ann . § 27-1-307(3)(b)(iii) (2008) ;
Nev. Rev . Stat . § 41 .085(4) (2008) ; N .C . Gen . Stat . § 28A-18-2(b)(4)(b)-(c) (2006) ; N .D .
Cent . Code § 32-03 .2-04(2) (2008) ; Ohio Rev . Code Ann . § 2125 .02(B)(3) (West 2009) ;
Okla . Stat . tit . 12, § 1053(B) (2000 8v Supp . 2009) ; Or . Rev . Stat . § 30 .020(2)(d)
(2003) ; R .I . Gen . Laws § 10-7-2 (2008) ; Va . Code Ann . § 8 .01-52(1) (2009) ; W . Va .
Code § 55-7-6(c)(1)(A) (2009) ; Wis . Stat . § 895 .04(4) (2006) ; Wyo . Stat . Ann . § 1-38-
102(c) (2009) .

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used, all these states allow post-death claims . Our statute, which makes loss

of consortium a personal right which can be claimed directly by the spouse, is

in line with the recognition by these other states that the claim is separate from

the claim for the injuries to the deceased spouse .

It is reasonable to construe

our statute as also intending to allow post-death loss of consortium, since

there is no express limit on those damages .

For the states that do not expressly include loss of consortium in their

wrongful death statutes, fifteen recognize through their case law that loss of

consortium damages continue past death, while only seven stop them at the

death of the spouse, 4 which is what Kentucky’s common law did . See Ro ers

v . Fancy Farm Telephone Co . , 160 Ky . 841, 170 S .W . 178, 179 (1914) . The fact

that our legislature deemed it necessary to enact a statute creating this cause
of action instead of leaving it to the common law demonstrates that it wished to

depart from the common law approach to loss of consortium, since the enacted

statute supersedes the common law .

The legislature took the common law

3 Boies v . Cole , 407 P .2d 917, 920 (Ariz . 1965) ; Krouse v . Graham , 562 P .2d 1022,
1027 (Cal . 1977) ; Horner v . Sani-Top, Inc ., 141 P .3d 1099, 1106 (Idaho 2006) ;
Kubian v . Alexian Bros . Med . Ctr. , 651 N .E .2d 231, 253 (Ill . 1995) ; Madison v . Colby,
348 N .W .2d 202, 209 (Iowa 1984) ; McGowan v . Estate of Wright , 524 So .2d 308, 311
(Miss . 1988) ; Selders v . Armentrout , 207 N .W .2d 686, 689 (Neb . 1973) ; Romero v .
Beers , 872 P .2d 840, 842-43 (N .M . 1994) ; Pennsylvania R .R. Co . v . Goodman , 62 Pa .
329, 1869 WL 7272, at *8 (1869) ; Johnson v . Charleston &, W .C . Ry . Co . , 108 S .E .2d
777, 787 (S .C . 1959) ; Jordan v . Baptist Three Rivers Hosp ., 984 S .W .2d 593, 598
(Tenn . 1999) ; Yowell v . Piper Aircraft Corp ., 703 S .W .2d 630, 635-36 (Tex . 1986) ;
Jones v . Carvell , 641 P .2d 105, 107-08 (Utah 1982) ; Mears v . Colvin , 768 A .2d 1264,
1267 (Vt . 2000) ; Walker v. NcNeill , 50 P . 518, 519, 521-22 (Wa . 1897) .
4 Zimmerman v . Lloyd Noland Found Inc . , 582 S .2d 548, 551 (Ala . 1991) ; Reynolds v .
Willis , 209 A .2d 760, 762 (Del . 1965) ; T&M Invs ., Inc . v . Jackson , 425 S .E .2d 300,
304 (Ga . App . 1992) ; Archie v . Hampton , 287 A .2d 622, 625 (N .H . 1972) ; Liff v .
Schildkrout , 404 N .E .2d 1288, 1291 (N .Y . 1980) ; Thalman v . Owens-Corning
Fiberglass Corp . , 676 A .2d 611, 614 (N .J . Super . App . Div . 1996) ; Zoss v . Dakota
Truck Underwriters , 590 N .W .2d 911, 914 (S .D . 1999) .
1 0

claim for loss of consortium, expanded it to include women, and defined the

elements of the damages .

It did not include the limiting language of “until

death,” when it could easily have done so when listing any or all of the

elements of damages . Instead, it used the broad compensatory language “may

recover damages .” While an argument can be made that the broad language of

the statute is equally amenable to the construction that the legislature

intended to adopt the claim as it then existed, it would have said so if that were

the intention . Otherwise, there was no need for the legislature to act at all .

The Appellee has argued that the statutory definition of “marriage” in

KRS 402 .005 precludes recovery for spousal consortium after death because

marriage is defined as a man and a woman being united “for life .”

Consequently, they argue, marriage ends at death and thus spousal

consortium must end at death . If the Court were looking at the question of the

legal effect of marriage laws after death, this might have more merit . However,

a loss of consortium claim is grounded on compensation for a third party’s

wrong-doing which intervenes in the marital relationship so as to deny spousal

consortium .

It provides liability for wrongfully depriving or cutting short the

marital relationship . This claim is not about whether a marriage has ended,

but rather about whether the marital relationship could have continued but for

the wrong-doing of the third party . The loss that comes from wrongly depriving
a spouse of her relationship with her husband, or vice versa, is definable and

measurable .

It has little to do with the legal construct of marriage at death,

but everything to do with the relationship that was wrongly taken away from
the surviving spouse .

At the crux of this claim is compensation for loss of the most compelling

of human relationships, other than possibly that of parent and child . Our

legislature did not intend, nor does this Court, to devalue that relationship by

putting an arbitrary limit on the duration of what can be profound loss . Our

statute permits that loss to be evaluated by a jury, and therefore it is the right

of bereaved spouses to have such an evaluation . Thus, this Court reads KRS

411 .145 as allowing post-death loss of consortium claims . To the extent that

Clark v . Hauck Manufacturing Co ., 910 S .W .2d 247 (Ky . 1995), and Brooks v .

Burkeen , 549 S .W .2d 91 (Ky . 1977), neither of which cited KRS 411 .145, hold

otherwise, or can be read to do so, they are overruled .

The Court of Appeals is therefore reversed on this issue . Because of

some unusual procedural elements of this appeal, however, there is some

question as to the effect of that reversal . The Court of Appeals held that the

Appellee, who was the defendant at trial, was entitled to a directed verdict

because Mrs . Shreve had not lived long enough to allow for a loss of

consortium claim, since such a claim terminated at her death . This Court is

reversing because it reads KRS 411 .145 as allowing such claims and damages

to extend beyond death, meaning that a directed verdict on that ground would

not be proper . However, this also means that the loss of consortium

instruction given by the trial court was erroneous, as it limited damages to

those during Mrs . Shreve’s life . But the Appellants (the plaintiffs at trial) did

not appeal the trial court’s erroneous instruction, which had the effect “to deny

[them] something for which [they have] asked,” Brown v . Barkley , 628 S .W .2d

616, 619 (Ky . 1982), and which therefore prevents the Appellants from undoing
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the trial court’s judgment . Thus, despite the erroneous instruction, this Court

cannot require a retrial on damages under an appropriate instruction . Nor can

this Court engage in the sort of review requested by the Appellee at the Court of
Appeals (i .e ., review the sufficiency of the evidence of the loss of consortium

damages) because the Appellee did not file a protective cross-motion for

discretionary review on that issue with this Court, and the Court of Appeals did

decide it, ruling that no claim for loss of consortium could lie because of the

short time that Mrs . Shreve lived .

The only option is to reinstate the judgment of the trial court on this

issue, since this Court has concluded that the Court of Appeals improperly

reversed it . This is so despite the fact that an instructional error underlies the

trial court’s judgment and arguably worked against the Appellants, since their

damages were more limited than this Court reads the law as allowing .

Reinstating that judgment, however, is not unjust, because it appears that

even with the flawed instruction, the Appellants received the maximum

damages they requested (and to which they were limited, that being the

amount listed in the interrogatories) . Because the Appellants did not appeal

the denial of a post-death loss of consortium instruction, a reinstatement of the

judgment as to loss of consortium damages would amount to giving them all

they asked for originally . Moreover, it is not improper to reinstate the trial

judgment on a ground not cross-appealed by the Appellants to this Court
because this Court would in effect be affirming the trial court but for different
reasons, which is acceptable even when there has been no cross-appeal . See

Carrico v . City of Owensboro , 511 S .W .2d 677, 679 (Ky . 1974) .
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B . EMTALA Claim

The Emergency Medical Treatment. and Active Labor Act (EMTALA), 42

U .S .C . § 1395dd, enacted by Congress in 1986, is sometimes referred to as an

“anti-dumping” statute because its primary purpose is to prevent hospitals

from “dumping” patients who lack insurance or cannot pay for their claims,

through refusing treatment or referring them to other hospitals . Thornton v .
Sw . Detroit Hosp . , 895 F.2d 1131 (6th Cir . 1990) . The claim here is not that

Appellee refused treatment at its hospital because the patient could not pay,

but that treatment was wrongfully delayed, leading to the patient’s death . The

facts, on their face, are not a neat fit with EMTALA . In fact, the EMTALA claim

in this action is little more than a restatement of the malpractice claim against

the physician : that he wrongfully screened, tested, and treated the patient .

The intent of the statute is to ensure that a physician does not shirk screening

an indigent person or transfer that person to another hospital to avoid treating

him because he cannot pay, not to create a federal malpractice cause of action .

Nolen v . Boca Raton Cmtv . Hosp ., Inc ., 373 F.3d 1151 (11th Cir . 2004) .

Thus, it is arguable that EMTALA does not apply here because there is

no record that any actions taken by the hospital were based on the patient’s

inability to pay ; the patient was indeed given many services . Their efficacy may

be questioned as a medical malpractice claim, but not the fact that they were

not given . However, assuming that EMTALA does apply here, and because this
issue is capable of repetition, it contains a screening requirement, § 1395dd(a),

and a stabilization or transfer requirement, § 1395dd(b), and allows a private

14

cause of action directly against hospitals for violation of the duties created by
the statute, § 1395dd(d)(2) .

The screening requirement provides that, if a hospital at which an

individual seeks “examination or treatment” has an emergency room, the

hospital must provide “an appropriate medical screening examination within

the capability of the hospital’s emergency department, including ancillary

services routinely available to the emergency department .

.

. .” The purpose of

providing such screening is “to determine whether or not an emergency medical

condition . . . exists .” § 1395dd(a) . The hospital must do enough screening or

diagnostics to make that determination . If there is no emergency, this Act does

not apply . If the hospital determines that an emergency medical condition

exists, then the stabilization-or-transfer requirement kicks in . This requires

the hospital to provide additional medical examination and treatment within its

capabilities or to transfer the person to an appropriate facility . In reality, the

medical emergency may require some treatment, if within the hospital’s
capability, before transfer, which is arguably what happened here .

However, subsection (c) of EMTALA places three alternative requirements

on the hospital, only one of which must be met, before it may transfer a

patient : that it get a request to transfer in writing from the patient ; that a

physician sign a certification that the treatment reasonably expected to be

received at the other hospital outweighs the risks of transfer ; and that if no

physician is physically present, qualified medical personnel as defined in the
statute may sign the risk certification if a physician has in fact made the

determination and later adopts it by signing it . § 1395dd(c) .
15

These facts are not in dispute : the hospital recognized that a medical

emergency existed at least when the patient lost consciousness, if not before

(based on the triage nurse’s claim that she was suspicious of a serious injury

and thought surgery would be necessary once Mrs . Shreve’s blood pressure

dropped and pulse elevated) ; at some point during the four or so hours the

patient was at the hospital, the hospital recognized that the surgeon who was

on call was not available ; during that wait, the hospital undertook treatment by

transfusing the patient to counter her blood loss, and continued further

attempts to determine the source of the bleeding, including having a CT scan

done ; when that was unsuccessful, the physician began the process of

transferring the patient to another hospital, and completed and signed the

Certificate of Transfer as required by the statute .

While questions may abound as to whether the physician and hospital

staff performed all these events within the appropriate standard of care, those

questions are not covered by this statute . By its terms, this is a strict liability

statute : it asserts what a hospital must do, and creates liability for any failure .

If a hospital does not follow the requirements of the statute, it is liable . Any

personal harm to an individual will result in damages for personal injury under

local state law if caused by the violation, and will result in a fine of up to

$50,000 if the violation is negligent, or gross and flagrant, or repeated, and the

hospital may also lose its licensing . § 1395dd(d) . On the other hand, if the
hospital has complied with the statute’s requirements, it is not material under

the statute how well it did them-that is a different cause of action, likely for

negligence . The Appellee was entitled to a directed verdict on the EMTALA
16

issues of screening and stabilization or transfer because all the requirements of

the statute were met .

This Court does not believe that improper motive is an element of the

individual EMTALA claim . If a hospital complies with the statute, motive is

obviously immaterial . But it is also immaterial when it does not comply,

because regardless of motive, the hospital has failed in its statutory duty, and

is thus liable . If there is no dispute that the hospital did or did not do what the

statute requires, then the personal cause of action is to determine damages

only . But this Court does recognize that there could be a dispute over whether

the hospital has done the necessary things, such as a scenario where a

physician testifies that he completed and signed the Certificate of Transfer, but

it cannot now be found in the record . Such questions of fact would also

obviously be determined at trial .

To that end, a general negligence instruction is not appropriate in an

EMTALA claim . The statute puts an absolute duty on hospitals to do what it

requires . Thus, appropriate instructions (if there is a liability question, and

assuming that the hospital has an emergency department) would be as follows .

If an emergency medical condition has not been determined, such as

when a patient is allegedly improperly screened :

It was the duty of defendant hospital to provide an
appropriate medical screening examination of the plaintiff
(decedent) within the capability of the hospital’s emergency
department whether or not a medical emergency exists .

Do you believe, based on the evidence, that the hospital
provided such screening?

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(cid:9)

For instance, this instruction would apply when a patient was released without

further examination, stabilization or transfer on a determination that there was

no emergency medical condition, then later has problems or dies .

If the hospital has determined that the individual has an emergency

medical condition :

It was the duty of the hospital, because there was an emergency
medical condition, to
A) provide such medical examination and treatment
necessary to stabilize the medical condition within the
staff and facilities available ; or
B) to transfer the plaintiff (decedent) to another medical
facility by
1) obtaining informed consent from the plaintiff (decedent)
in writing ; or
2) issuing and signing a Certificate of Transfer certifying
that the medical benefits reasonably expected from the
transfer outweigh any increased risks to the individual
from transfer ; or
3) allowing a qualified medical person to issue the
Certificate of Transfer after a physician has made the
actual certification, and subsequently signs the
certificate .
Do you believe, based on the evidence, that the hospital performed
its duty in regard to the plaintiff (decedent)?
No
Yes

This instruction should be given if a determination that there is an emergency

medical condition has been made . After such determination, the screening

requirements obviously have no application because regardless of their efficacy,
the proper determination has been made that requires further examination and
treatment within the hospital’s capabilities, or transfer to an appropriate

facility .

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There will be necessary variations depending on the facts of each case,

and whether there is a liability question or a damages claim only . Since the

damages allowed to the individual by the statute are those “available for

personal injury under the law of the State in which the hospital is located,” §

1395dd(d)(2)(A), the general damages instruction will apply . But it must be

emphasized that such damages are available under EMTALA only when the

personal harm is a direct result of the hospital’s violation of the statute, not by

any harm caused by the medical negligence of personnel or the hospital .

Despite the above analysis, the fact that the trial court did not give a

directed verdict on the EMTALA claim is not grounds for reversal of the jury

verdict or judgment in this case . The Court of Appeals reached the same

conclusion about the necessity of a directed verdict, but held that a new trial

on damages would be required under Stringer v . Wal-Mart Stores, Inc .

, 151

S .W .3d 781, 801 (Ky . 2004) . In Stringer , the plaintiffs raised three claims—

intentional infliction of emotional distress, defamation, and invasion of

privacy-that had overlapping but not completely coterminous injuries . Thus,

because the defendants were entitled to directed verdicts on two of the three

claims, this Court vacated the damages award and ordered a retrial on

damages only as to the remaining claim .

In making the wrongful death claim in this case, the Appellants alleged

multiple tortious acts, and the trial court eventually instructed on three
theories against the hospital based on those alleged acts : a policy and
procedures claim, a general medical negligence claim, and the EMTALA claim .

Regardless of the route taken to liability, the injury under all three claims was
19

the same-the death of Mrs . Shreve . Likewise, the proof of damages was the

same for all three theories, including the claim under EMTALA, which allows

state personal injury damages under 42 U .S .C . § 1395dd(d)(2) . The jury found

liability under all three theories, two of which were not appealed to this Court .

Because the injury and damages under those theories of liability were the same

as under the EMTALA claim, this case is distinguishable from Stringer .

Stringer involved three separate torts, with overlapping but ultimately different

injuries . But the Appellants in this case pleaded alternative theories of liability

for a single injury-wrongful death . The jury had to find causation in order to

find liability, and here the jury found liability under all three theories . This

amounted to a finding that any of the three tortious acts was a sufficient cause

of the wrongful death, and the damages that flowed from that injury.

As to the loss of consortium, the directed verdict on the EMTALA statute

also has no effect because wrongful death could be established by either of the

two theories that were not appealed, and the finding of the wrongful death of

Mrs . Shreve was an element of proof of the loss of consortium claim . Either of

the surviving findings of liability is sufficient to support the loss of consortium

damages award .

Therefore, this Court concludes that while the failure to give a directed

verdict on the EMTALA claim in this case was error, it was harmless as to the

damages award returned by the jury under the policy and procedures claim or

the general negligence claim, which were not appealed .

III . Conclusion

Kentucky’s loss of consortium statute, KRS 411 .145, is compensatory in

nature, and creates an independent cause of action for the spouse of an
injured or deceased person . The statute is silent as to the duration of any

damages from the loss, and this Court will not provide a term that is missing

by limiting recovery only up to the time of death . On this ground, the Court of

Appeals is reversed, and the judgment of the trial court is reinstated on the

loss of consortium claim .

The Appellee hospital in this case was entitled to a directed verdict on the

EMTALA claim because there is no dispute that it performed the required

elements of the statute which is designed to prevent hospitals from “dumping”

patients who cannot pay for their care . The statute imposes absolute liability

on a hospital if it fails in conforming to the statute, but there is no liability if it

has, which is the case here . However, because the jury verdict found liability

for wrongful death on all three theories of causation, this error is harmless

because the damages claimed and proven were for the same personal injury .

Thus the Court of Appeals is affirmed to the extent it held that a directed

verdict was required but its judgment is reversed on this ground because the

verdict of the jury and judgment of the trial court are otherwise sustainable .

For the forgoing reasons, the decision of the Court of Appeals is reversed

and the judgment of the Ohio Circuit Court is reinstated in its entirety .

All sitting . All concur .

COUNSEL FOR APPELLANTS :

Abram V . Conway, 11
Conway 8, Keown
124 West Union Street
PO Box 25
Hartford, Kentucky 42347

Wanda McClure Dry
140 E . Division Road, Suite C-3
Oak Ridge, Tennessee 37830

COUNSEL FOR APPELLEE :

Ronald Sheffer
William Kenneth Burnham
Sheffer Law Firm, LLC
101 South Fifth Street, Suite 1450
Louisville, Kentucky 40202

COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION :

Kevin Crosby Burke
125 S . 71h Street
Louisville, Kentucky 40202-2703

Paul A . Casi, II
Paul A . Casi, PSC
440 S . 7th Street, Suite 100
Louisville, Kentucky 40203-1909

Marmureanu v. Laks



PEER REVIEW

Marmureanu v. Laks, No. B173813 (Cal. Ct. App. Feb. 25, 2005)

One physician
sued another physician, alleging the defendant physician misused the peer
review process to interfere with the plaintiff physician’s competitive
medical practice. The alleged misuse was that the physician made false statements
about the plaintiff physician’s qualifications, causing the medical center
to restrict his privileges. The defendant physician filed a motion to strike
the lawsuit under California’s anti-SLAPP statute, which grants immunity
to a person who participates in an "official" proceeding. The California
Court of Appeals held that the anti-SLAPP statute does not apply because the
peer review process is not an "official" proceeding under the statute.
In so holding, the court recognized a current split of authority on this issue
under California law.

 

Marshall v. Meadows (Summary)

RACIAL DISCRIMINATION

Marshall v. Meadows, No. CIV S-10-1286 JAM DAD PS (E.D. Cal. Mar. 16, 2011)

The United States District Court for the Eastern District of California granted a motion to dismiss various race discrimination claims brought pro se by a physician against a hospital and one of its employed physicians. The plaintiff-physician alleged that the hospital altered his patients’ medical records and that one of its employed physicians contacted patients and gave false information. The court dismissed the §1983 and Fourteenth Amendment claims because the plaintiff-physician had not alleged facts establishing any significant involvement by the state with the defendants’ alleged actions. The court further stated the alleged conduct appeared to be the result of merely private conduct which is excluded from §1983 and the Fourteenth Amendment claims. The §1985 claim was dismissed because the plaintiff-physician did not allege any facts to suggest the defendants were motivated by racial animus and deprived him of a legally protected right. The §1981 claim was dismissed because the plaintiff-physician did not allege that a contractual relationship existed between himself and the defendants, which is necessary under this statute. The court also dismissed the Title VII claim because the plaintiff-physician failed to allege the necessary facts to satisfy the elements of a racial discrimination case. All the federal claims were dismissed and therefore the court declined to exercise jurisdiction and address the state law claims. The court, however, allowed the plaintiff-physician to amend his complaints to try to cure the defects noted above.

 

 

Mannick v. Kaiser Found. Health Plan, Inc

Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 1 of 31 (cid:10)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JOHN MANNICK,
Plaintiff,

v.
KAISER FOUNDATION HEALTH PLAN,
INC., et al.,

No. C 03-5905 PJH
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

Defendants.
_______________________________/
The parties’ cross-motions for summary judgment came on for hearing before this
court on May 31, 2006. Plaintiff appeared by her counsel Patricia Barbosa, Paul Rein, and
J. Gary Gwilliam. Defendants appeared by their counsel Kari Erickson Levine and Janine
Syll Simerly. Having read the parties’ papers and carefully considered their arguments and
the relevant legal authority, and good cause appearing, the court hereby GRANTS
defendants’ motion and DENIES plaintiff’s motion as follows
BACKGROUND
This is a disability access case, alleging violations of federal and state law. Plaintiff
John Mannick suffers from advanced-stage multiple sclerosis, and requires the use of a
wheelchair for locomotion. His left arm and both legs are immobile. In January 2003 he
developed a viral infection that threatened to cause him to lose the use of his right arm –
his last functioning limb. He was hospitalized from January 2, 2003, through January 8,

Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 2 of 31 (cid:10)

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2003, in the medical-surgical ward at Kaiser Oakland Main Hospital (“Kaiser Oakland”).
Kaiser Oakland is one of the oldest hospitals run by defendants Kaiser Foundation
Health Plan, Inc. and Kaiser Foundation Hospitals (“Kaiser” or “defendants”). The low-rise
part of Kaiser Oakland was constructed in 1956, and the hospital tower was completed in
1970. The hospital is currently licensed for 346 beds.
In 1994 the California Legislature passed Senate Bill 1953, an amendment to the
1983 Hospital Facilities Seismic Safety Act. S.B. 1953 required all hospitals in California to
retrofit, rebuild, or close their general acute care inpatient hospital buildings by 2008
(subsequently extended to 2013) if the buildings did not meet strict new seismic safety
standards. Because of the age of the Kaiser Oakland buildings, Kaiser determined that the
seismic upgrades would be difficult or impossible to accomplish, and would also be
prohibitively expensive.
Kaiser initially determined to build a new hospital in Emeryville and close the
Oakland facility. Kaiser purchased property in Emeryville and developed architectural
plans, but abandoned that plan when the City of Oakland objected to Kaiser locating the
hospital outside of Oakland.
In 1996, Kaiser decided it would permanently close Kaiser Oakland hospital in three
years. Kaiser began formulating plans for its hospitalized patient population to use
available beds in other community hospitals, and for particular populations to be transferred
to specific hospitals. Kaiser entered into an agreement with Alta Bates Hospital to utilize its
available beds for Kaiser Oakland’s women and children in-patient populations, and also
arranged for Kaiser Oakland’s pediatric intensive care service to be transferred to
Children’s Hospital. Kaiser hoped to be able to transfer Kaiser Oakland’s remaining
pediatric services and its general adult services population to Summit Hospital, but that
plan failed. In 2000, Kaiser began planning associated with building a replacement hospital
and keeping Kaiser Oakland open until the new facility was completed.
As of January 2003, there were no patient rooms with wheelchair-accessible
bathrooms and showers in Kaiser Oakland’s medical-surgical wards (5th to 10th floors). At

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some point while plaintiff was hospitalized, his catheter (which he uses 24 hours a day)
failed. He wanted to take a shower, but was unable to roll his wheelchair into the shower in
the bathroom adjoining his room. The nurses offered to give him a bed bath, but he
insisted on a shower. Hospital aides took him to a roll-in shower located in the old 4th floor
maternity ward, where they helped him shower. Plaintiff was not satisfied, however,
because he felt that the shower’s shelf-type bench was too narrow and slippery for safety.
Plaintiff filed this action on December 31, 2003, alleging denial of access to public
facilities in violation of Title III of the Americans With Disabilities Act, 42 U.S.C. § 12181, et
seq. (access to public accommodations and services operated by private entities);
California Civil Code § 54 and § 54.1 (access to public accommodations by physically
disabled persons); and California Health & Safety Code §§ 19955, et seq. (access to public
accommodations by physically handicapped persons); and seeking injunctive relief and
damages.

Plaintiff alleges that Kaiser discriminated against him by failing to provide him with
an accessible patient room, and by failing to transfer him to a facility that had an accessible
patient room. Plaintiff asserts that while the room he was given at Kaiser Oakland had a
bathroom with a toilet and a shower, neither were wheelchair-accessible, and that the
hospital’s offer of a portable commode and bed-baths (by nurses) or a dangerous and
inadequate shower in the old maternity ward instead of an accessible toilet and shower was
discriminatory because it was based solely on his disability. He also asserts that the
patient drop-off parking area was inadequately configured; and that there was inadequate
disabled and van-accessible parking, and inadequate paths of travel from the parking areas
to the hospital.
The case was referred to a magistrate judge for settlement. The parties initially
agreed to forego all formal discovery during the settlement discussions. Following a series
of six settlement conferences, the parties submitted a proposed consent decree to the
court on September 16, 2005. The proposed consent decree addressed only the issue of
injunctive relief, not the issue of liability or the claims for damages or attorney’s fees.

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 4 of 31 (cid:10)

On September 19, 2005, Kaiser filed a notice of substitution of counsel. On
September 20, 2005, the court signed the consent decree. Pursuant to the consent
decree, Kaiser agreed to perform extensive construction and restructuring to provide
accessible bathrooms and showers in patient rooms on each of Kaiser Oakland’s five
patient floors.
Specifically, Kaiser agreed to create 75 accessible parking spaces, including 10 van-
accessible spaces; accessible paths of travel from parking spaces to hospital entrances;
accessible hospital entrances, with signage; 3 fully accessible patient rooms, one to be
completed by the end of 2005; and 3 fully accessible showers/restrooms for use by
disabled patients assigned to rooms that are not otherwise fully accessible. Kaiser also
agreed to evaluate the needs of disabled patients and to give them the option of
transferring to another Kaiser facility for the term of their hospitalization, pending
construction of the accessible rooms.
The consent decree provides that defendants “do not admit liability to the allegations
in Plaintiff’s Complaint filed in this action,” and that “[t]he parties have reached an
agreement of the claims asserted by Plaintiff for the purpose of resolving this lawsuit
without the need for protracted litigation, and without the admission of any liability.”
Consent Decree ¶ 2. Additional relevant provisions of the consent decree are as follows:
In order to avoid the costs, expense, and uncertainty of protracted litigation,
the parties to this consent decree agree to entry of this Order to resolve all
claims regarding the injunctive relief raised in the Complaint filed with the
Court on December 31, 2003. Accordingly, they agree to the entry of this
Order without trial or further adjudication of any issues of fact or law
concerning plaintiff’s claims for injunctive relief.
Consent Decree ¶ 4.
This order shall be a full, complete, and final disposition and settlement of
Plaintiff’s claims against Defendants for injunctive relief that have arisen out
of the subject Complaint. The parties agree that there has been no admission
or finding of liability or violation of the ADA and/or California civil rights laws,
and this Consent Decree should not be construed as such. Moreover, this
Consent Decree cannot be used as evidence by Plaintiff to prove the
damages portion of his case.
Consent Decree ¶ 5.

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The parties have not reached an agreement regarding Plaintiff’s claims for
statutory, actual, treble and personal injury damages in this matter, and for
Plaintiff’s claims for attorney’s fees, litigation expenses and costs. These
issues shall be the subject of further negotiation, litigation, or motion to the
Court.
Consent Decree ¶ 7.
[E]ach of the parties to this Consent Decree . . . releases and forever
discharges each other Party . . . from all claims, demands, actions, and
causes of action of whatever kind or nature, presently known or unknown,
arising out of or in any way connected with this Lawsuit.
Consent Decree ¶ 10.
Except for all obligations required in this Consent Decree, the parties intend
that this Consent Decree apply to all conditions that existed at the subject
facilities and all such further loss with respect to the Lawsuit, except those
caused by the parties’ subsequent to the execution of this Consent Decree.
Therefore, except for all such obligations required in this Consent Decree, this
Consent Decree shall apply to and cover any and all claims, demands,
actions and causes of action by the parties to this Consent Decree with
respect to the Lawsuit, whether the same are known, unknown or hereafter
discovered or ascertained . . . .
Consent Decree ¶ 11.
On October 7, 2005, Kaiser’s new counsel filed a motion to stay the action and
compel arbitration. That motion was denied on December 16, 2005. On February 16,
2006, Kaiser filed another substitution of counsel.
Each side now seeks summary adjudication on liability. Kaiser seeks summary
adjudication on the question whether the Kaiser Oakland was obligated to provide plaintiff
with a wheelchair accessible bathroom and shower. Plaintiff seeks summary judgment on
all issues of liability.

A.

Legal Standard
Summary judgment is appropriate when there is no genuine issue as to material
facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
Material facts are those that might affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there
is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

DISCUSSION

5

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A party seeking summary judgment bears the initial burden of informing the court of
the basis for its motion, and of identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof
at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other
than for the moving party. On an issue where the nonmoving party will bear the burden of
proof at trial, the moving party can prevail merely by pointing out to the district court that
there is an absence of evidence to support the nonmoving party’s case. Id. If the moving
party meets its initial burden, the opposing party must set forth specific facts showing that
there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P.
56(e); Anderson, 477 U.S. at 250.
“To show the existence of a ‘genuine’ issue, . . . [a plaintiff] must produce at least
some significant probative evidence tending to support the complaint.” Smolen v. Deloitte,
Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted). The court must
view the evidence in the light most favorable to the non-moving party. United States v. City
of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). The court must not weigh the evidence or
determine the truth of the matter, but only determine whether there is a genuine issue for
trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). If the nonmoving party
fails to show that there is a genuine issue for trial, “the moving party is entitled to judgment
as a matter of law.” Celotex, 477 U.S. at 323. Regardless of whether plaintiff or defendant
is the moving party, each party must “establish the existence of the elements essential to
[its] case, and on which [it] will bear the burden of proof at trial.” Id. at 322.
Title III of the ADA
B.
Plaintiff’s ADA claims arise under Title III of the ADA, which prohibits discrimination
against disabled individuals in any place of public accommodation. 42 U.S.C. § 12182(a);
Bird v. Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir. 2002). Liability is imposed
upon “any person who . . . operates a place of public accommodation” that discriminates
against an individual on the basis of disability. Id. Aside from attorney’s fees, the only

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remedy available to a private litigant under Title III of the ADA is injunctive relief. 42 U.S.C.
§ 12188(a)(1); see also Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002).
In enacting the ADA, Congress adopted two systems for regulating building
accessibility – one to apply to facilities designed and constructed for occupancy before
January 26, 1993, and one to apply to newly constructed or altered facilities. See 42
U.S.C. § 12183(a)(1) and § 12182(b)(2)(A)(iv). Congress also directed the Department of
Justice (DOJ) to issue regulations implementing Title III. 42 U.S.C. § 12186(b). The DOJ
regulations are at Part 36 of 28 C.F.R.
Only newly-constructed or altered facilities must comply with the ADA Accessibility
Guidelines (“ADAAG”), which were incorporated into the DOJ regulations as Appendix A of
28 C.F.R. Part 36. See 28 C.F.R. § 35.151(c). When a facility is deemed “altered,” the
altered portion of the facility must be made accessible “to the maximum extent feasible.”
The infeasibility exception “applies to the occasional case where the nature of an existing
facility makes it virtually impossible to comply fully with applicable accessibility standards
. . . .” 28 C.F.R § 36.402(c).
The demand upon preexisting facilities that are not deemed altered is much less
stringent. Existing facilities must remove architectural barriers to access only where such
removal is “readily achievable.” See 42 U.S.C. § 12182(b)(2)(A)(iv). The term “readily
achievable” means “easily accomplished and able to be carried out without much difficulty
or expense.” 42 U.S.C. § 12181(9); see also 28 C.F.R § 36.304(a) (preexisting facilities
must remove barriers to accessibility only “where such removal is readily achievable, i.e.,
easily accomplishable and able to be carried out without much difficulty or expense”). The
applicable regulations mandate that a public accommodation shall remove architectural
barriers where such removal is readily achievable and provide examples of steps to remove
barriers, such as repositioning shelves, rearranging tables, chairs, vending machines,
display racks, and other furniture, and widening doors. See 28 C.F.R. §§ 36.304(a), (b).
In determining whether an action is readily achievable, factors to be considered
include –

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(A) the nature and cost of the action needed under this chapter;
(B) the overall financial resources of the facility or facilities
involved in the action; the number of persons employed at such
facility; the effect on expenses and resources, or the impact
otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to
the number of its employees; the number, type, and location of
its facilities; and
(D) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of such entity; the geographic separateness,
administrative or fiscal relationship of the facility or facilities in
question to the covered entity.
42 U.S.C. § 12181(9)(A)-(D).
Where an entity can demonstrate that the removal of a barrier is not readily
achievable, discrimination also includes the failure to make such facilities available through
alternative methods if such methods are readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v).
Although existing facilities are not required to comply with the ADAAG (unless they
have been altered), the ADAAG nevertheless provides guidance for determining whether
an existing facility contains architectural barriers. Parr v. L&L Drive-Inn Restaurant, 96
F.Supp. 2d 1065, 1086 (D. Haw. 2000). However, deviations from the ADAAG are not
necessarily determinative in establishing barriers to access. See 28 C.F.R. Part 36, App.
A, ADAAG 2.2.

C.
State Law Claims
Plaintiff’s state law claims arise under California Health & Safety Code § 19955, et
seq., and the California Disabled Persons Act (“CDPA”), California Civil Code §§ 54, et seq.
The purpose of § 19955 is to ensure that places of public accommodation constructed with
private funds adhere to the accessibility standards in California Government Code § 4450.
Government Code § 4450 requires that all buildings constructed with public funds be
accessible to and usable by the physically handicapped. It also directs the State Architect
to develop standards for making buildings accessible to persons with disabilities.
Under Government Code § 4450 and Health & Safety Code §§ 19955, et seq.,

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affirmative conduct on the part of a public accommodation is required only for construction
of new facilities or for the repair or alteration of existing facilities (constructed prior to July 1,
1970), and then only to the area of specific alteration or repair. Cal. Health & Safety Code
§ 19955; Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881, 888 (1976),
superceded by statute on another ground, see Hankins v. El Torito Rest., Inc., 63 Cal. App.
4th 510, 521 (1998).
Access guidelines with which public accommodations must comply are detailed in
Title 24 of the California Code of Regulations. However, Title 24 does not require that
facilities constructed prior to July 1, 1970, comply with its regulations unless and until the
building is altered, and the Title 24 requirements apply only to the area of specific
alteration. Cal. Code Regs. Title 24 § 1134B.1, 2. Moreover, the accessibility
requirements of Title 24 are not triggered when a place of public accommodation makes an
“[a]lteration solely for the purpose of removing barriers undertaken pursuant to [Title III of
the ADA] or the accessibility requirements of [Title 24].” Cal. Code Regs. Title 24
§ 1134B.2.1, Exception 3.6.
Under the CDPA, “[i]ndividuals with disabilities or medical conditions have the same
right as the general public to the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’
offices, public facilities and other public places.” Cal. Civ. Code § 54(a). Further,
“[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of
the general public, to accommodations . . . places of accommodation, amusement, or
resort, and other places to which the general public is invited.” Cal. Civ. Code § 54.1(a)(1).
As of 1997, the CDPA incorporates by reference an individual’s rights under the ADA. Cal.
Civ. Code §§ 54(c), 54.1. Thus, a violation of the ADA also constitutes a violation of the
CDPA. See Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F.Supp. 2d
1128, 1130 (E.D. Cal. 2002).
Unlike the ADA, however, the CDPA provides for the recovery of monetary
damages, in the amount of three times the actual damages, but in no case less than

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$1,000.00, “for each offense.” Cal. Civ. Code § 54.3. A plaintiff need not prove actual
damages in order to recover the minimum statutory amount; he only must establish that he
was denied equal access on a particular occasion. Donald v. Café Royale, Inc., 218 Cal.
App. 3d 168, 180-81 (1990). Moreover, there is no requirement under the CDPA that the
plaintiff show intentional discrimination in order to recover damages. Organization for
Advancement of Minorities with Disabilities v. Brick Oven Restaurant, 406 F.Supp. 2d 1120
1129-30 (S.D. Cal. 2005); Donald, 218 Cal. App. 3d at 177-80.
Defendants’ Motion
D.
Plaintiff asserts that Kaiser’s failure to provide at least one accessible patient room,
at least one accessible bathroom, and at least one accessible shower as of the time he was
a patient at Kaiser Oakland is a violation of Title III of the ADA as a matter of law.
Defendants seek summary judgment on the claim that Kaiser violated the ADA and state
law by failing to provide plaintiff with an accessible bathroom and shower in his patient
room.
To establish a prima facie case of violation of Title III of the ADA, a plaintiff must
show that (1) he or she has a disability, (2) the business is a “public accommodation,” and
(3) that the plaintiff was denied full and equal treatment because of his or her disability.
Parr, 96 F.Supp. 2d at 1070. In the present case, there is no dispute that plaintiff is
disabled, and that Kaiser Oakland is a place of public accommodation. The question is
whether plaintiff was denied equal treatment because of his disability.
To prevail in a claim of discrimination based on an architectural barrier, a plaintiff
must show in addition that (1) the existing facility presents an architectural barrier
prohibited under the ADA, and (2) the removal of the barrier is “readily achievable.” Id.
The plaintiff bears the burden of proving the existence of an architectural barrier and
suggesting a method of removing the barrier that is readily achievable, or “easily
accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C.
§ 12181(9), § 12182(b)(2)(A)(iv); see also Pickern v. Holiday Quality Foods Inc., 293 F.3d
1133, 1135 (9th Cir. 2002); Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F.Supp. 2d

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923, 929 (E.D. Cal. 2004). If plaintiff satisfies this burden, the burden then shifts to the
defendants, who bear the ultimate burden of proving that the suggested method of removal
is not readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v); Colorado Cross Disability
Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999, 1002-03 (10th Cir. 2001);
Hubbard, 408 F.Supp. 2d at 929. The parties do not dispute the existence of architectural
barriers in Kaiser Oakland. The question is whether the removal of those barriers was
“readily achievable.”
Defendants provide a brief history of Kaiser’s response to the passage of the ADA,1
detailing the creation of a task force to implement Kaiser’s plan for ADA compliance.
Edward Denton (“Denton”), the chair of the task force and a registered architect, states in a
declaration that the planning team surveyed all of Kaiser’s hospital space, and determined
that the estimated cost to remove all identified barriers in Kaiser’s Northern California
facilities would be in excess of $23 million. Kaiser then prioritized all its remediation work,
and focused on removing what it considered the “significant impediments” to accessibility.
Kaiser also met with the disabled community to obtain their input and agreement regarding
the best use of resources to remove the barriers that significantly impeded access.
According to Denton, who was employed by Kaiser Permanente in various
capacities from 1983 to 1998, Kaiser Oakland completed a number of these prioritized
projects, starting in 1995. Kaiser employees Bettie Coles (“Coles” – a Vice President and
Area Manager responsible for the operation of Kaiser Oakland’s medical center, including
the hospital tower, and three other East Bay medical centers) and Judy L. Rowe (“Rowe” –
a licensed architect responsible for all non-replacement Hospital “capital projects”2 over
$25,000 in the East Bay) state in their declarations that Kaiser determined that the removal
of patient toilet/shower barriers in Kaiser Oakland was not readily achievable due to

1 The ADA became effective on July 26, 1992. See Pub.L. No. 101-336, Title I,
§ 108, 104 Stat. 337 (1990).
2 According to Rowe, hospitals in California cannot undertake any construction unless
they first obtain a permit from the Office of Statewide Healthcare Planning – “OSHPD.” The
term “capital projects” refers to such construction projects.

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extensive restructuring required and the substantial impact on hospital operations as a
result of the loss of patient beds. Because the hospital facility was scheduled for
replacement by 2012, the Kaiser Facilities Services Capital Projects Group team
determined that the extensive restructuring required to make patient rooms accessible was
not readily achievable.
Kaiser was sued in 2000 by Disability Rights Advocates (“DRA”), regarding issues
relating to the height of examining tables and the accessibility of scales and other medical
equipment in all Kaiser hospitals. According to Shari Samuels (“Samuels”), who worked for
Kaiser from 1995 through July 2005 in various capacities, and who was the ADA Program
Manager responsible for overseeing Kaiser’s efforts to comply with the settlement
agreement reached in the DRA case, Kaiser worked with DRA during this period to
implement a realistic barrier removal plan.
In the present motion, defendants argue that because Kaiser Oakland was
constructed prior to the passage of the ADA, the question whether Kaiser had a legal
obligation in 2003 to provide plaintiff with an accessible bathroom necessarily requires an
analysis of whether there was any “trigger” (construction in or alteration to the patient
rooms in the medical-surgical ward) prior to plaintiff’s stay in January 2003 that obligated
Kaiser to make bathrooms and showers wheelchair accessible, and whether the barrier
removal required to provide plaintiff with these accessible facilities was “readily achievable.”
Defendants contend that the evidence shows that there was no such “trigger,” and that the
alteration of the patient rooms to create accessible bathrooms and showers was not readily
achievable.
Defendants assert that simple alterations in one portion of a facility do not
automatically make the entire facility subject to the new construction standards. They note
that under 28 C.F.R. § 36.402(b)(1), normal maintenance, roofing, painting, asbestos
removal, or changes to mechanical or electrical systems do not qualify as “alterations”
unless they affect the usability of the building or facility.
Defendants provide evidence showing that as of January 2002, the patient rooms in

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the medical-surgical wards at Kaiser Oakland had not undergone any alteration or
modification that triggered new construction standards under federal or state law. Rowe,
who reviewed all plans dating back to the original construction date of 1970, verified that
none of those plans involved construction, alteration, or repair of patient rooms on the
medical-surgical floors, which would have triggered Kaiser’s obligation to provide plaintiff
with an accessible toilet or shower during his January 2003 hospitalization.
According to Rowe, of the three construction projects completed to date in the
hospital tower, the first project involved conversion of an undersized labor room and
associated spaces on the 4th and 5th floors; the second project involved construction,
alteration, and structural repair of a number of patient rooms on the 4th and 5th floor of the
maternity ward, which began in April 2003 (after plaintiff’s hospitalization) and was
completed in 2004; and the third project involved creating a fully accessible patient room
pursuant to the consent decree entered in the present litigation.
Defendants provide additional supporting evidence on this point from Henry Scott
(“Scott”), who was employed by Kaiser from 1987 until he retired in 1997, and who was the
Title 24 Project Inspector for Kaiser Oakland from 1992 until 1997; and from Herb Clore
(“Clore”), who has been employed by Kaiser as an inspector since 1985, and who was the
Lead Inspector of Record at Kaiser Oakland from 1989 through 1992. Both Scott and
Clore state that as to the period each worked at Kaiser Oakland, there was no renovation
of any patient room.
Defendants also argue that it is plaintiff’s burden to show that barrier removal is
readily achievable under the ADA and California law. Defendants contend that plaintiff has
not met his burden, and that the undisputed evidence shows that the creation of a fully
accessible patient room was not readily achievable because it was too difficult and costly.
In her declaration, Rowe discusses in detail the work necessary to create the
accessible patient room that defendants agreed to construct in accordance with the
September 20, 2005, consent decree. Rowe states that in order to create the extra space
necessary in the bathroom for an accessible shower in a patient room, it was necessary to

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enlarge the patient room, which required taking space from adjacent rooms. In addition,
work had to be done on the ceiling of the room under construction as well as the ceiling of
the room below because of the anchorage required to the necessary above-ceiling
modifications, such as lights, ductwork, and HVAC. As well, the below-floor work involved
plumbing modifications and noise disruption. The total cost of the work exceeded
$600,000.
Defendants also argue that the removal of barriers was not readily achievable based
on the impact on hospital operations occasioned by the attendant loss of licensed patient
beds. Rowe explains that during the period of construction of the one completed
accessible room, four licensed patient beds were rendered temporarily unusable. In
addition, the remodeling permanently eliminated one patient bed. According to Coles, the
loss of any hospital beds is particularly significant at Kaiser Oakland because the hospital
runs a high occupancy rate. Thus, Coles asserts, any loss of beds negatively impacts the
operations of the hospital.
With regard to the discrimination claim, defendants assert that they did not
discriminate against plaintiff because bed baths and bedside commodes are common
“facilitations” for disabled patients. They note that under 42 U.S.C. § 12182(b)(2)(A)(iv)-(v)
and 28 C.F.R. § 36.305(a), where a public accommodation demonstrates that a particular
barrier removal is not “readily achievable,” a place of public accommodation must make its
services and facilities available through alternative methods, if those methods are readily
achievable. They note in addition, however, that under 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii),
policies and procedures need not be modified, and auxiliary aids need not be provided, if
doing so would “fundamentally alter” the services or accommodations being offered or
would result in an undue burden.
Defendants argue that the hospital provides bed baths as an alternative “facilitation”
to barrier removal. They provide evidence showing that bed baths are a standard medical
means of washing numerous patients – not only those who are disabled under the
definition set forth in the ADA – and as such, are part of standard nursing practices.

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Similarly, they provide evidence showing that Kaiser provides bedside commodes as an
alternative “facilitation” to many non-disabled patients, such as those who are unstable in
the bathroom and will be safer if lifted onto a bedside commode.
With regard to the alleged “transfer” policy, defendants contend that they did not
transfer patients from Kaiser Oakland to other hospitals because of a lack of facilities to
treat those patients, as plaintiff claims. Moreover, defendants assert, that no patient,
including plaintiff, has ever requested a “transfer” away from Kaiser Oakland and that
patient’s physician. Coles states in her declaration that patients were moved to other
hospitals as part of the attempt to close Kaiser Oakland and build another hospital in lieu of
completing the required seismic upgrades. Coles explains that arranging the transfer of a
patient such as plaintiff to another facility would be difficult, and that any such transfer
would have to be evaluated on a case-by-case basis. Defendants note that under 28
C.F.R. § 36.304 and App. B at § 36.304, it is best left to the public accommodation to
determine whether any particular alternative facilitation is appropriate under the given
circumstances, and argue that plaintiff was not entitled to the “facilitation” of his own
choosing – such as a transfer – without any input from the hospital.
In opposition to the motion, plaintiff asserts that defendants have admittedly spent
millions of dollars to alter and renovate facilities at Kaiser Oakland. Plaintiff argues that
these alterations and renovations obligated Kaiser to remove barriers in the patient rooms
and to provide at least one fully accessible toilet and roll-in shower for patient use.
Specifically, plaintiff contends that the 1993 renovations to the 4th/5th floor maternity ward
triggered the obligation to provide access for all patients – in the patient rooms and in
parking, entrances, and paths of travel to the newly renovated patient rooms.
Plaintiff asserts that defendants cannot demonstrate that renovation to at least one
patient room was not readily achievable under the ADA, because Kaiser has more than $25
billion in assets, and operates 30 hospitals in California. Plaintiff also claims that
defendants have demonstrated conclusively that barrier removal is feasible and “readily
achievable” by entering into a consent decree in which they agree to remove barriers in

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three patient rooms and to construct fully accessible restrooms and roll-in showers.
Plaintiff also asserts that defendants failed to remove readily achievable “minor” barriers in
the patient room, by, for example, modifying door handles. thresholds, and doors.
Plaintiff disputes defendants’ claim that providing three accessible patient rooms
would seriously impact hospital operations, based on the high occupancy rate at Kaiser
Oakland, and based on the fact that most of the rooms are three-bed rooms. Plaintiff
contends that the impact could be minimized by staggering the work (presumably meaning
that Kaiser could work on one room at a time).
With regard to the discrimination claim, plaintiff argues that he was “confined to bed”
during his hospitalization solely as a result of defendants’ discrimination-based policies. He
claims that the hospital did not have a usable lift to move him from his bed to his
wheelchair, and that he had to get his wife to go home and get a sling so the lift would
work. He argues that what defendants refer to as “standard operating procedures” – use of
portable commode or bed pan instead of regular toilet, and bed baths instead of access to
shower – are really “lesser facilities” and unequal treatment, which violate the ADA.
Plaintiff asserts that defendants established a policy that is discriminatory on its face
by classifying all mobility-disabled patients as “bed-bound” and “confined to bed” solely
based on their disability, for the purpose of depriving them of accessible toilets and roll-in
showers. He argues that defendants’ “nursing care” policy for disabled patients (use of bed
baths and bedside commode) was disability-based discrimination and was not based on an
evaluation of the plaintiff’s individual needs.
The court finds that defendants’ motion must be GRANTED. Kaiser Oakland was a
“pre-existing facility,” and the undisputed evidence provided by defendants shows that
there was no alteration or remodeling of the patient rooms that triggered an obligation to
provide an accessible patient room on one of the medical-surgical floors. The 1993
remodeling of the 4th/5th floor labor/delivery rooms did not trigger any obligation with
regard to the patient rooms on the medical-surgical floors. Moreover, even if it had, the
undisputed evidence shows that a renovation of a medical-surgical patient room to include

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a fully accessible bathroom was not “readily achievable,” given the cost of the renovation
and the impact on hospital operations.
Defendants have established that the actual and direct cost of modifying one patient
room to create an accessible bathroom is in excess of $600,000, which is far from a small
expense. They have also shown that the extensive work required for such modification
would have a significant impact on hospital operations. The fact that defendants agreed in
the consent decree to do the work does not establish that defendants had any liability
under the ADA for not doing the work prior to plaintiff’s hospitalization, as the consent
decree by its terms cannot be used to establish liability.
The court finds further, however, that it is not necessary for defendants to establish
that the creation of an accessible patient room was not “readily achievable,” because
plaintiff has not met his burden of showing that barrier removal was readily achievable.
The amount of Kaiser’s overall financial resources is only one of the factors to be
considered. Moreover, the “revenue” figure cited by plaintiff is not relevant for an analysis
under the “readily achievable” standard because it is a total gross figure and does not
account for expenses such as employee salaries, capital expenditures, and hospital costs.
Plaintiff has failed to incorporate the other factors into the calculus, such as the
expense and difficulty of removing the barriers, the impact of barrier removal on Kaiser’s
ability to provide medical care to its patients, and whether the existing facility’s alterations
were made solely for the purpose of removing accessibility barriers.
Plaintiff attempts, in the declaration of his consultant Arthur Shorr filed in opposition
to defendants’ motion, to rebut the statements of defendants’ witnesses regarding the
impact of the barrier removal on hospital operations. However, Shorr is an outside
consultant, who doesn’t work at Kaiser and lacks the personal knowledge of defendants’
witnesses, and his effort is directed at discounting the methodology used by defendants’
witnesses – for example, what percentage occupancy is usual at Kaiser Oakland, and what
effect the loss of a certain number of patient beds would have on hospital operations –
rather than being positively directed at establishing that barrier removal would be “readily

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 18 of 31(cid:10)

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achievable.”
In view of plaintiff’s failure to meet his burden of coming forward with evidence to
show that creating an accessible patient room was readily achievable, defendants are
under no obligation to prove the affirmative defense that barrier removal is not readily
achievable. See Colorado Cross, 264 F.3d at 1002-07.
Nor has plaintiff established that Kaiser’s alternative “facilitation” is discriminatory.
Although plaintiff claims that it is Kaiser’s policy to define all disabled individuals as
“confined to bed,” the evidence shows that every patient that comes into Kaiser receives an
“interdisciplinary care plan,” which involves an assessment, on admission, of a patient’s
needs by a nurse. Coles explains that the medical needs of every patient are determined
through this care plan, and that it is the medical needs of the patient that dictate whether
the patient will use a commode, a bed pan, or the toilet, or will be given a bed bath.
The evidence shows that all patients are treated equally, in that each is evaluated
based on his or her mobility, and may then be confined to bed based on that assessment.
Based on this mobility assessment, plaintiff was categorized a “total assist” patient with
respect to hygiene needs, and a “high injury risk” because of his limited mobility. Because
of this, he was not medically permitted to use the toilet.
Nor was Kaiser’s failure to transfer plaintiff to another facility discriminatory. First,
there is no evidence that plaintiff ever requested a transfer. Second, there is no evidence
that Kaiser Oakland had a “policy” of transferring patients to other facilities. What plaintiff
interprets as such a policy was simply part of Kaiser’s plan to move its patient populations
to other facilities in preparation for the demolition of Kaiser Oakland. Third, defendants
have provided evidence showing that transfers, in general, are difficult and not “readily
achievable.”
Plaintiffs argument regarding removal of barriers to paths of travel is outside the
scope of defendants’ motion.
E.
Plaintiff’s Motion
Plaintiff seeks summary judgment on his claim that Kaiser discriminated against him

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by failing to provide him with an accessible patient room, by offering him a bed bath and a
portable commode instead of a fully accessible bathroom, and by failing to transfer him to
another facility; and his claim that Kaiser violated the ADA and state law by failing to
provide at least one fully accessible patient room. This motion is DENIED, because the
defendants’ motion on the same issues has been granted.
Plaintiff also contends that Kaiser violated the ADA and state law by failing to
provide an accessible roll-in shower in the remodeled bathroom on the 4th floor maternity
ward, and by failing to remove architectural barriers, in connection with parking, building
entrances, and paths of travel. Plaintiff claims that Kaiser made millions of dollars’ worth of
renovations and alterations to Kaiser Oakland between 1992 and 2002, but failed to
provide accessible parking, entrances, or paths of travel.
Plaintiff asserts, based on an analysis by his consultant Robert Johnson (“Johnson”
– a forensic economist), that Kaiser’s overall 2003 financial resources were in excess of
$25 billion, with net income (after taxes and expenses) of more than $1 billion. Based on
these facts regarding Kaiser’s financial condition, and based on Johnson’s opinion that
Kaiser could easily afford the renovation, plaintiff argues that the removal of the barriers
was “readily achievable.”
Plaintiff also argues that the Kaiser defendants denied plaintiff “full and equal
access” to their public facilities in violation of Civil Code § 54.1 as a matter of law by
constructing and altering their public facilities without providing accessible parking,
entrances, and paths of travel. He asserts that although defendants have altered and
renovated their medical facilities and parking lots many times since 1982, the two largest
patient parking garages and the parking lot for hospital discharge do not, as of the time of
this motion, provide the disabled with a fully compliant van-accessible parking space.
Plaintiff claims that evidence shows that Kaiser undertook alteration and
construction at Kaiser Oakland at a cost in excess of $8 million dollars between 1992 and
2002, but made no provisions for accessible parking and paths of travel. Plaintiff also
asserts that the evidence shows that Kaiser undertook a $9 million construction upgrade

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project in several departments in the hospital and surrounding medical buildings in 1995,
and also made alterations or renovations to the Howe Street garage in 1995, all of which
plaintiff’s expert claims triggered access not only to the altered areas, but to the public
restrooms, entrances, parking, and paths of travel to the altered areas. Plaintiff contends
that Kaiser made a “business decision” not to construct the required accessibility upgrades
at the time of the renovation/alteration to the building, and even went so far as to mislead
the inspectors from the State.
In opposition, defendants argue that pursuant to the terms of the consent decree,
plaintiff waived all barrier claims (claims for injunctive relief) that were not raised in the
complaint or were not identified in the consent decree.3 Thus, defendants assert, plaintiff is
barred from using the consent decree to establish that any barrier removal was “readily
achievable,” and is also barred from attempting to expand the scope of his complaint by
complaining about additional barriers that he did not previously raise.
Defendants argue that the only issue that remains in this action is liability for and
damages stemming from the claims actually raised in the complaint, and which are subject
to the remediation set forth in Attachment A to the consent decree. Thus, with regard to
the removal of path-of-travel barriers, defendants argue that the only issues before the
court are ones identified in the consent decree – the accessible parking spaces in the
Howe Street parking structures and the MacArthur/Broadway building; the policy for parking
fees for disabled parking; the policy re paths of travel for accessible parking spaces; and
the McArthur Blvd. entrance to the hospital.
With regard to the van accessible parking, defendants note that plaintiff’s own expert
Peter Margen (“Margen”) states in his declaration that the Howe Street garage vehicular

3 Defendants contend that the following barriers mentioned by plaintiff in his moving
papers, and identified by plaintiff’s accessibility expert Peter Margen in his declaration, were
not raised in the complaint and were not identified in the consent decree as items to be
completed: 1) alleged inaccessible lifts and examination tables in the emergency room;
2) alleged inaccessible patient discharge areas, parking, and path of travel issues for buildings
other than the hospital; 3) alleged inaccessible public restrooms in the hospital; and 4) Kaiser’s
allegedly discriminatory policy of transferring ob/gyn patients and pediatric patients to non-
Kaiser facilities.

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 21 of 31(cid:10)

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entrance has a vertical clearance of 6’10” at one entrance and 7’0″ at the other, while the
ADA requires an 8’2″ clearance for vans. Thus, defendants contend, fully compliant
accessible spaces cannot be created in this garage, and the barrier removal is therefore
not “readily achievable.”4
With regard to the issue of accessible path of travel from the parking lots to the
hospital, defendants contend that plaintiff’s argument rests on the mistaken assumption
that every construction or renovation project undertaken in the hospital – e.g., alterations to
the pharmacy, the radiology department, and various medical departments such as
orthopedics and cardiology – triggered path-of-travel obligations. However, defendants
contend, the relevant inquiry is whether the alterations are sufficiently extensive and in a
location that triggers an obligation to make the external paths of travel to the hospital fully
accessible.
Defendants argue that plaintiff has failed to establish the areas of remodel for
several projects identified by Margen, or that all of these projects involved alterations or
renovations to the hospital building. They also argue that plaintiff has not accounted for
alterations made solely for the purpose of removing accessibility barriers, noting that under
Cal. Code Regs, Title 24, 1134.B.2.1, ADA alterations are expressly excluded from
triggering such obligations.
With regard to the construction of a roll-in shower in the 4th floor maternity ward,
defendants argue that plaintiff has provided no evidence that the shower was not ADA-
compliant, and that the evidence of their expert shows that it was.
In reply, plaintiff argues that the evidence shows that defendants made alternations
to the hospital’s maternity ward in 1993 that triggered an accessible shower; and that
defendants made alternations to the parking lot and related facilities that triggered a van-
accessible parking space and fully accessible paths of travel.
Plaintiff argues that defendants failed to remove any of the barriers in the patient

4 There are apparently van-accessible parking spaces in parking facilities other than
the Howe Street garage.

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 22 of 31(cid:10)

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rooms, the parking lots, the patient discharge areas, or the paths of travel, and have failed
to demonstrate that any particular barrier removal was “not readily achievable” under Title
III standards. For example, he argues that defendants have provided no evidence that they
evaluated the patient rooms in the hospital and remedied “readily achievable” barriers such
as door hardware, thresholds, or narrow doors. In addition, he claims that defendants’
agreement in the consent decree to remove the barriers demonstrates that such removal
was “readily achievable” under Title III standards. He also contends that defendants
violated the ADA and Cal. Code of Regulations Title 24 by altering the hospital and related
facilities without making path-of-travel upgrades.
The court finds that plaintiff’s motion with regard to the 4th floor shower and with
regard to barrier removal in parking areas and paths of travel must be DENIED.
First, plaintiff provides no evidence that the 4th floor shower was not fully compliant.
By contrast, defendants provide a declaration from their expert Marcus Hibser (“Hibser”), a
registered architect. Hibser states that the as-built drawings for the remodel of the 4th/5th
floor maternity ward show that the shower was in accordance with ADA and Title 24
requirements. He also visited the hospital and examined the shower, and states that it
appeared consistent with its “as-built” condition.
As for the claim with regard to the parking areas and paths of travel, plaintiff’s
evidence is inconclusive. Margen identifies numerous construction projects that occurred
in the hospital and its parking facilities over the years, and also identifies what he claims to
be barriers and paths-of-travel issues in the parking areas, patient discharge areas, and
hospital entrances. Plaintiff seems to be suggesting that any one of these construction
projects would have been sufficient to trigger the obligation to add van-accessible parking
and accessible paths of travel throughout the facility. However, he provides no authority for
the proposition that this requirement would have been triggered by any construction at all
(as opposed to construction in a specific area).
Health & Safety Code § 19955 states that the requirement to upgrade existing
facilities applies only when repair or alteration is made to such facilities, and then “[t]his

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 23 of 31(cid:10)

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requirement shall only apply to the area of specific alteration, structural repair, or addition,
and shall not be construed to mean that the entire building or facility is subject to this
[requirement].” See Marsh, 64 Cal. App. 3d at 888. Plaintiff, however, has not established
that the alleged deficient paths of travel are in the same specific area as certain alterations
or repairs.
Moreover, even if we assume for the sake of argument that some of these
construction projects did trigger the requirement to clear paths of travel, plaintiff has not
established exactly what defendants were required to do to remove the barriers, and has
not provided evidence showing that those alternations would have been “readily
achievable.” It is not clear that plaintiff can establish liability for failure to remove barriers to
paths of travel; nevertheless, defendants not having moved on this ground, the issue
remains to be tried.
Finally, with regard to the issue of van-accessible parking, it appears from the
evidence provided by plaintiff that fully compliant van-accessible parking is not possible,
given the vehicular clearances in the two entrances into the garage. Certainly it appears
not “readily achievable.” Triable issues of fact remain with respect to this part of plaintiff’s
motion.
F.
Objections to Evidence
Defendants’ Objections to Plaintiff’s Evidence (filed with defendants’
1.
opposition)
Defendants object to the admission of the declarations of plaintiff’s experts Robert
Johnson and Peter Margen.
Declaration of Robert Johnson
a.
Defendants assert that the declaration of plaintiff’s expert Robert Johnson must be
disregarded as a whole, because Johnson’s opinions go to the ultimate issue in the case –
whether barrier removal is “readily achievable” as a matter of law.
Plaintiff asked Johnson to give an opinion as to whether the providing of one
accessible hospital room at Kaiser Oakland as of January 2003 was “easily accomplishable

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Case 3:03-cv-05905-PJH Document 184 Filed 06/09/2006 Page 24 of 31(cid:10)

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and able to be carried out without much difficulty or expense.” Johnson states in his
declaration that “providing a single accessible patient room at Kaiser Oakland Hospital prior
to January 2, 2003, would have been ‘easily accomplishable and able to be carried out
without much difficulty or expense,’ pursuant to the factors to be considered by the Court
under the ‘readily achievable’ provisions of the ADA.”
Defendants assert that expert testimony – such as Johnson’s – that consists of legal
conclusions cannot possibly assist the trier of fact in understanding the evidence or in
determining a fact in issue. See Fed. R. Evid. 702 (expert testimony admissible only if it
will assist trier of fact in either understanding the evidence or determining a fact in issue).
Defendants assert further that Johnson’s testimony is irrelevant, immaterial, speculative,
prejudicial, and inadmissible to prove that barrier removal was readily achievable.
Defendants also contend that Johnson’s testimony reflects an incorrect application
of the applicable law, because he concludes that barrier removal is “readily achievable”
based solely on the amount of Kaiser’s financial resources. Defendants note that the ADA
requires the court to consider a number of factors, not just the financial resources of the
public accommodation. Defendants also assert that Johnson has no construction
background, and lacks all the facts, and is therefore not even qualified to express an
opinion on what is “readily achievable” with regard to Kaiser Oakland.
In response, plaintiff argues that Johnson is a qualified and experienced economist,
whose qualifications defendants do not dispute. Plaintiff claims that it is not proper to
object that an expert opinion goes to the ultimate issue in the case, arguing that under
Federal Rule of Evidence 704, “testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” Plaintiff also disputes that Johnson’s opinions are “legal conclusions.” Plaintiff
asserts that it is entirely proper for expert witnesses to give opinions that apply facts to the
legal standard of the case. Plaintiff also submits that Johnson examined documents
produced by defendants during discovery, and that he formed his opinion based on
defendants’ financial ability to provide accessible facilities at Kaiser Oakland. Plaintiff

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claims that this is not an impermissible legal conclusion.
The court finds that the objection must be SUSTAINED, to the extent that Johnson’s
opinions go to the ultimate issue of whether barrier removal is “readily achievable” as a
matter of law. Plaintiff is correct that defendants have not provided a basis for a number of
their objections, and in asserting that Rule 704(a) provides that opinion testimony is not
objectionable simply because it embraces an ultimate issue to be decided by the trier of
fact. However, defendants’ objection is based on Johnson’s opinions with regard to
ultimate legal conclusions, not ultimate factual issues. Testimony as to ultimate issues is
not permitted when it consists of legal conclusions or opinions. Marx & Co., Inc. v. Diners’
Club, Inc., 550 F.2d 505, 508-10 (2d Cir. 1977) cited in Traumann v. Southland Corp., 858
F.Supp. 979, 985 (N.D. Cal. 1994)).
Expert testimony is admissible when it will assist the trier of fact in understanding the
evidence or determining a disputed issue of fact. See Fed. R. Evid. 702; U.S. v. Hankey,
203 F.3d 1160, 1168 (9th Cir. 2000). However, “resolving doubtful questions of law is the
distinct and exclusive province of the trial judge.” United States v. Brodie, 858 F.2d 492,
497 (9th Cir. 1988), overruled on other grounds, U.S. v. Morales, 108 F.3d 1031 (9th Cir.
1997). Accordingly, federal courts typically prohibit experts from interpreting the law for the
court or from advising the court about how the law should apply to the facts of a particular
case. Testimony “which articulates and applies the relevant law . . . circumvents the [fact
finder’s] decision-making function by telling it how to decide the case.” Specht v. Jensen,
853 F.2d 805 (10th Cir. 1988).
Here, the conclusion that barrier removal was “readily achievable” is a legal
conclusion for the court to reach, based on a consideration of the relevant factors.
b.
Declaration of Peter Margen
Defendants assert that the declaration of Peter Margen must be disregarded as a
whole because Margen’s opinions go to the ultimate issue in the case – whether barrier
removal was “readily achievable.”
Plaintiff asked Margen to give an opinion “as to the accessibility of certain public

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facilities at the Kaiser Hospital in Oakland . . . and to evaluate applicable state and federal
laws and regulations for disabled access standards in places of public accommodation.”
Margen states in his declaration that Kaiser “triggered” ADA and state accessibility
requirements by conducting certain alterations, constructions, and renovations, and is
therefore in violation of those laws. He also concludes that particular barrier removals are
“readily achievable.” Defendants assert that Margen’s declaration is objectionable as a
whole because it constitutes impermissible legal conclusion with regard to whether barrier
removal was “readily achievable” (as discussed with reference to the Johnson Declaration).
Defendants also argue that Margen’s testimony with regard to whether Kaiser
Oakland had any accessible patient rooms is based on inaccurate facts and constitutes
impermissible legal opinion, and also is not based on personal knowledge as Margen did
not review all the patient rooms; arguing that Margen’s testimony that bed pans and bed
baths are not an accommodation that complies with the purposes and intent of the ADA is
an impermissible legal opinion; arguing that Margen’s statements that Kaiser undertook
renovations worth millions of dollars without providing required disabled access, that
required corrections to the parking would not have been “too expensive or difficult for a
party that has the financial resources of defendants,” and that “all” the construction projects
at Kaiser Oakland would have triggered path-of-travel upgrades, constitute impermissible
legal opinion, are based on inaccurate facts, lack foundation, and are irrelevant.
Defendants object further to Exhibits 2, 3, and 5-8 to the Margen Declaration,
arguing that they are not admissible. They assert that Exhibit 2 (site map of Kaiser
Oakland complex) has not been properly authenticated; that Exhibit 3 (Margen’s expert
report) contains impermissible legal opinion and is speculative; that Exhibit 5 (construction
project authorization forms) contains documents that are not relevant to the issues raised in
the motion); that Exhibit 6 (unsigned internal memorandum re 1995 renovation project) is
not relevant to any issue raised in plaintiff’s motion; that Exhibit 7 (certificate of substantial
completion) has not been properly authenticated; and that Exhibit 8 (architect’s plan for
2003 renovation of maternity ward) is not relevant to any issue raised in plaintiff’s motion.

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In response, plaintiff makes the same arguments as he did with regard to the

Johnson Declaration – that Margen is a qualified expert, and that it is permissible for an
expert to render an opinion that goes to the ultimate issue in a case.
With regard to the objections to the exhibits, plaintiff responds that the documents
were provided by defendants in discovery, and were authenticated by the declaration of
plaintiff’s counsel Julie McLean, who states that plaintiff obtained them in discovery.
Plaintiff contends that these objections should be overruled because defendants did not
object to the McLean Declaration.
For the reasons stated above with regard to Johnson, defendants’ objection to
Margen’s conclusion that the barrier removal was “readily achievable” is SUSTAINED, as is
the objection to the statement that bed pans and bed baths are not an accommodation that
complies with the purposes and intent of the ADA, and the objection to the statements that
required corrections to the parking would not have been “too expensive or difficult for a
party that has the financial resources of defendants,” and that “all” the construction projects
at Kaiser Oakland would have triggered path-of-travel upgrades. The objections to Exhibits
5, 6, and 8 are SUSTAINED, as plaintiff has not responded to those objections. The
objections to Exhibits 2 and 7 are OVERRULED. See Maljack Prods., Inc. v. GoodTimes
Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (documents produced by a party
in discovery deemed authentic when offered by a party-opponent), cited in Orr v. Bank of
America, 285 F.3d 764, 777 n.20 (9th Cir. 2002).
Plaintiff’s Motions to Exclude Defendants’ Witnesses and Objections to
2.
Evidence (filed with plaintiff’s opposition)
Plaintiff’s Motion to Exclude Witnesses
a.
Plaintiff claims that defendants originally disclosed six witnesses on April 22 , 2004,
and that they did not supplement the disclosure until April 18, 2006, when they added 40
previously undisclosed witnesses. Plaintiff also claims that defendants did not allow access
to two storage facilities full of thousands of crucial documents until April 20 and 21, 2006.
Plaintiff claims that defendants had previously refused to produce these documents,

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claiming that the documents were irrelevant or that production would be overly
burdensome.
Plaintiff asserts that these last-minute disclosures have prejudiced his ability to
prepare his own summary judgment motion or to oppose defendants’ motion. Plaintiff
seeks an order excluding all 40 newly-disclosed witnesses from testifying in connection
with motions or at trial, and striking all declarations by those witnesses filed in connection
with these motions for summary judgment. Plaintiff also seeks an order excluding any
“previously withheld” documents.
As stated at the hearing, a motion to exclude evidence as a discovery sanction must
be brought within the applicable time limits as a separate motion, as provided under
Federal Rule of Civil Procedure 37 and the Civil Local Rules of this court. Because
plaintiff’s motion does not comply with those rules, the motion is DENIED.
Plaintiff’s Objections to Evidence
b.
Plaintiff argues that portions of the declarations of Bettie Coles, Judy Rowe, Edward
Denton, Herb Clore, Henry Scott, Shari Samuels, and Nitasha Lal, all of which were filed in
support of defendants’ motion, are inadmissible because they constitute “incompetent
expert testimony.” The objections are OVERRULED. The court finds that the testimony of
each of these witnesses was made on personal knowledge.
For example, Coles, as Vice President of Operations for Kaiser Oakland, has
personal knowledge of the date the buildings were constructed, personal knowledge of the
subsequent alterations to and remodeling of the buildings, and personal knowledge of
Kaiser Oakland’s efforts to comply with the ADA and Title 24. Similarly, Rowe, by virtue of
her managerial position, has personal knowledge of the duties of the people who reported
to her, personal knowledge of construction projects completed in compliance with the ADA,
and personal knowledge of the process of remodeling a single patient room to install an
accessible bathroom. Both state based on their own personal knowledge that there was no
construction in or alteration to any of the patient rooms in the medical-surgical wards during
the time they worked at Kaiser Oakland. Samuels also testifies based on personal

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knowledge, and authenticates documents that were produced to plaintiff.
Plaintiff’s Objections to Defendants’ Use of Previously Undisclosed Witnesses
3.
and Evidence and Objection to Evidence (filed with plaintiff’s reply)
Plaintiff’s Objections to Use of Previously Undisclosed Witnesses and
a.
Evidence
This is essentially a repeat of the plaintiff’s motion to exclude witnesses, and is
OVERRULED for the reasons stated above.
Plaintiff’s Objections to Evidence Raised by Defendants in their
b.
Opposition to Plaintiff’s Motion
Plaintiff argues that the declarations of defendants’ witnesses are filled with
inadmissible evidence and should be stricken by the court.
i.
Declaration of Bettie Coles in Support of Defendants’ Opposition
Plaintiff objects to the Coles declaration filed in support of defendants’ opposition to
plaintiff’s motion. He again argues that Coles is being offered as a lay witness, not an
expert, and that the declaration should be stricken as “incompetent expert testimony,” and
as lacking in personal knowledge. For the reasons stated above, this objection is
OVERRULED.

Declaration of Kari Levine in Opposition to Plaintiff’s Motion
ii.
Plaintiff contends that ¶¶ 1-9 of the declaration of defendants’ counsel Kari Levine –
this is the Levine opposition declaration – should be stricken because it contains
inappropriate legal argument regarding the substance of the pleadings in the case, the
settlement agreement, and the legal significance of such documents. Plaintiff does not
provide any specifics.
Plaintiff argues that ¶¶ 10-38 of the Levine declaration contains self-serving,
inaccurate, and inadmissible hearsay testimony regarding the history of discovery in this
case. Plaintiff claims that “Ms. Levine’s ‘history’ is incomplete and misleading,” but
provides no specifics, except to complain that Levine included her own letters to plaintiff’s
counsel, but not plaintiff’s counsel’s response. Plaintiff also asserts that as Levine and the

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Seyfarth firm only began representing defendants in February 2006, she can have no
personal knowledge regarding any discovery events prior to that time.
These objections are OVERRULED. Plaintiff has provided no specifics regarding
how the declaration is inaccurate or misleading.
iii.
Exh. T to the Levine Declaration in Opposition to Plaintiff’s
Motion
Plaintiff objects to the admission of Exh. T to the Levine declaration. This is
plaintiff’s second objection to the same Bettie Coles declaration filed in support of
defendants’ motion, discussed above. This objection is OVERRULED.
Plaintiff’s Objections to Defendants’ Use of New Arguments and New
4.
Evidence in Support of Defendants’ Reply on Defendants’ Summary
Judgment Motion (filed one week after the filing of the reply briefs)
In what amounts to a surreply, filed without leave of court, plaintiff argues that
defendants introduced a new theory in their reply – that there was a fully accessible shower
built in the 4th floor labor/delivery area when those rooms were remodeled in 1993, and
that the shower to which plaintiff was taken was therefore fully accessible. Plaintiff claims
that previously defendants have always argued that they had no legal obligation to provide
an accessible shower to plaintiff and that they instead offered him a bed bath, and that
even though the shower they took him to was not accessible, there was no ADA violation.
Plaintiff asserts that now, with the declaration of defendants’ expert Marcus Hibser
filed with defendants’ reply, defendants have come up with this entirely new theory, which
is that the maternity floor shower was accessible. Plaintiff argues that defendants should
not be permitted to raise this new theory in a reply brief, and also asserts that Hibser’s
opinion is not reliable based on his review of the “as-built” plans, not on any viewing of the
shower itself. Thus, according to plaintiff, because Hibser never saw the shower, he
cannot honestly say, as he does in his declaration, that the roll-in shower constructed in
1993 “is the exact roll-in shower in which [p]laintiff was showered during his hospitalization
stay.” Plaintiff also asserts that the plans Hibser reviewed show the existing conditions

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prior to the renovations, and then show the proposed changes, but do not show what was
actually built.
In addition, plaintiff claims that when his counsel requested the opportunity to
examine the shower with plaintiff’s expert in December 2003, they were told that the whole
area was being remodeled again, and that the shower had been “gutted” and no longer
existed in its previous state. Plaintiff asserts that defendants’ reply brief states that the
same shower has been in existence since 1993, and that the Hibser declaration “suggests”
the same, and argues that it is not fair that his counsel were denied the opportunity to see
the shower.
As stated at the hearing, this “objection” constitutes an improper argument raised in
response to a reply brief without leave of court. Accordingly, the objection is OVERRULED,
and the surreply is stricken, as is defendants’ response to the surreply.

IT IS SO ORDERED.
Dated: June 9, 2006

______________________________
PHYLLIS J. HAMILTON
United States District Judge

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Marrero v. Hosp. Hermanos Melendez,

Marrero v. Hosp. Hermanos Melendez,
No. 01-2717 (DRD) (D.P.R. Mar. 20, 2003)

The estate of a deceased patient brought suit against a hospital and the attending
physicians, alleging wrongful death and EMTALA violations stemming from the
patient’s emergency room visit on Christmas day.

The patient initially waited about 30 minutes before vital signs were taken,
another 35 to 45 minutes before being taken into the emergency room to be evaluated
by a triage nurse, and another hour and a half before the patient was evaluated
by a physician. After complaining of headaches and chest pains, the attending
physician eventually ordered an EKG and CBC laboratory tests to be performed
on the patient that afternoon. The estate alleged that the EKG was never performed.
Another CBC laboratory test was later performed early that evening. Once the
second CBC results came back, an emergency room physician ordered the patient
to be discharged stating the tests came back "fine." The patient was
then discharged though still having a strong headache and elevated blood pressure.
The patient died several days later from a cerebral edema associated with his
diabetic condition. The Federal District Court in Puerto Rico denied the hospital’s
motion for summary judgment, holding that whether the appropriate screening
was given and the patient stabilized prior to discharge was ultimately a question
of fact which must be left to the jury to decide.

 

 

Mangieri v. DCH Healthcare Auth. (Summary)

Mangieri v. DCH Healthcare Auth., No. 01-14647 (11th Cir. Sept. 4, 2002)

The United States Court of Appeals for the Eleventh Circuit vacated a judgment by the United States District Court for the Northern District of Alabama in favor of a government hospital, in a suit filed by an anesthesiologist whose contract was not renewed. The appeals court allowed the physician to go forward with his claims that nonrenewal violated the First Amendment, because it was
allegedly in retaliation for his opposition to the hospital’s proposal to move some services to another site.

Mannick v. Kaiser Found. Health Plan, Inc.

ADA

Mannick v. Kaiser Found. Health Plan, Inc., No.
C 03-5905 PJH (N.D. Cal. June 9, 2006)

A disabled patient brought a suit
against a hospital, alleging various violations of federal and state disability
and antidiscrimination laws. The patient asserted the hospital discriminated
against him by failing to provide a wheelchair-accessible bathroom or shower.
In his complaint, the patient argued the hospital engaged in a number of construction
projects sufficient in scope to constitute an "alteration" under
the Americans with Disabilities Act ("ADA") and, therefore, the hospital
had violated the Act by not reconfiguring its accessibility for the disabled
during such projects.

The hospital responded that compliance with the ADA standards was not required
for public buildings built prior to the Act’s passage unless changes were "readily
achievable." Moreover, construction in one portion of the facility did
not automatically make the entire facility subject to ADA standards. The United
States District Court for the Northern District of California agreed with the
hospital. The court held that the hospital was a preexisting facility and that
the alterations made to other parts of the facility did not trigger an obligation
to provide an accessible patient room because a fully accessible room was not "readily
achievable."

 

Marsaw v. Trailblazer Health Enters.,

Marsaw v. Trailblazer Health Enters.,
No. CIV.A. G-01-633 (S.D. Tex. March 28, 2002)

The owner of eleven physical rehabilitation centers brought suit against its
Medicare Part B carrier and the Secretary of HHS in federal court after successfully
appealing more than 300 Medicare claims denials and still having more than a
thousand to appeal. The plaintiff sought to enjoin any further administrative
proceedings before the Secretary and alleged causes of action for violations
of its equal protection and due process rights under the U.S. Constitution and
breach of contract. The plaintiff claimed that it had received a document from
a former employee of the Medicare carrier indicating that the carrier was discriminating
against clinics that were owned by minorities, and that the Medicare carrier
denied the plaintiff’s claims in retaliation for the plaintiff refusing to return
that document to the carrier. The carrier’s explanation was that the claims
were denied because the billings were for services that were medically unnecessary
or fraudulent.

The federal district court granted the defendants’ motion to dismiss, concluding
that the plaintiff’s constitutionally-based claims were "‘inextricably
intertwined’ with a "substantive claim of administrative entitlement,"
such that it was required to exhaust its administrative remedies under the Medicare
Act. The court therefore lacked subject matter jurisdiction. The court likewise
dismissed the plaintiff’s §1981 claim for racial profiling, ruling that
the Secretary was immune under the doctrine of sovereign immunity and the Medicare
carrier was acting under color of federal law, not state law, so §1981
did not apply to it. The plaintiff’s Title VII claims were dismissed because
Title VI does not apply to programs administered directly by a federal agency.

Manzetti v. Mercy Hosp. of Pittsburgh

Manzetti v. Mercy Hosp. of Pittsburgh,
No. 53WAP2000 (Pa. July 18, 2001)

Cardiac surgeon whose privileges to perform open heart surgeries were suspended sued
hospital and the physicians who were involved in the review of his practice,
seeking monetary and injunctive relief. Soon after discovery began, the hospital
and physician defendants filed a motion for summary judgment on the monetary
claims, which was granted by the lower court on the basis of HCQIA immunity.
The claims for injunctive relief were settled.

On appeal, the surgeon argued that the defendants were not entitled to HCQIA
immunity because a statistical study of his surgeries performed by two members
of the MEC was flawed, the investigation of his practice was brief and superficial,
and the Chief of the Division of Cardiac Surgery who suspended his privileges
was motivated by self-interest because he was a direct competitor. In addition,
the surgeon claimed that the lower court erred in granting summary judgment
before he was able to depose seven of the defendants.

The Commonwealth Court affirmed the grant of summary judgment and the Pennsylvania
Supreme Court agreed to hear the case. It too affirmed the summary judgment,
ruling that the cardiac surgeon was unable to rebut the HCQIA’s presumption
that the professional review action was reasonable. The court held that an investigation
of a physician’s practice does not have to be flawless, it must be sensible
and that the investigation in this case met that standard. In addition, the
court ruled that even if there was evidence that the Chief of Cardiac Surgery
was motivated by self-interest, it would be immaterial to determining whether
the surgeon had reed the HCQIA’s presumption of reasonableness. Most importantly,
the court ruled that the surgeon did not have an unlimited right to discovery
and was unable to show how additional discovery would have aided him.