Number range CHAPTER

UNITED STATES DISTRICT COURT

NORTHEN DISTRICT OF NEW YORK

NAVELLA CONSTANCE AND

VERNAL CONSTANCE,

*Plaintiffs,*

-against- 98-CV-1440

(FJS)(GJD)

STATE UNIVERSITY OF NEW YORK

HEALTH SCIENCE CENTER,

*Defendant.*

**UNITED STATES' RESPONSE AS *AMICUS CURIAE* TO**

**DEFENDANT'S MOTION FOR SUMMARY JUDGMENT**

DANIEL J. FRENCH BILL LANN LEE

United States Attorney Assistant Attorney General

Northern District of Civil Rights Division

New York

JOHN L. WODATCH

WILLIAM H. PEASE Chief

Assistant U.S. Attorney

Chief, Civil Division RENEE M. WOHLENHAUS

Bar Roll No. 102338 Deputy Chief

100 South Clinton Street

Syracuse, NY 13261-7198 PHILIP L. BREEN

> Special Legal Counsel

ROBERT J. MATHER

December 1, 2000 Trial Attorney

Bar Roll \# 502617

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

**TABLE OF CONTENTS**

Preliminary Statement 1

Background 2

I. *FREYDEL V. NEW YORK HOSPITAL* IS DISTINGUISHABLE\
FROM THIS CASE 3

II. THE RECORD CONTAINS EVIDENCE THAT SUNY WILL NOT\
    ADEQUATELY PROTECT THE CONSTANCES\' RIGHT TO\
    EFFECTIVE COMMUNICATION 4

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III. THE RECORD CONTAINS EVIDENCE OF SUNY\'S DELIBERATE\
     INDIFFERENCE TO THE CONSTANCES\' FEDERALLY\
     PROTECTED RIGHTS 5

CONCLUSION 7

**[Preliminary Statement]{.underline}**

The United States, as *amicus curiae*, respectfully submit this brief,
in support of plaintiffs Navella and Vernal Constance\'s memorandum of
law in opposition to defendant State University of New York Health
Science Center\'s motion for summary judgment.

Defendant filed a motion for judgment on the pleadings on January 13,
1999. In support of this motion, Defendant argued, *inter alia*, that
the Constances lacked standing for injunctive relief because they could
not show an "injury in fact"; and Plaintiffs failed to sufficiently
plead discriminatory intent to justify an award of damages. The court
denied Defendant\'s motion to dismiss. (Judge\'s Decision and Order,
dated 6/28/99).

The court also dismissed Plaintiffs\' claim for injunctive relief, but
granted Plaintiffs\' leave to amend their complaint. (Judge\'s Decision
and Order, dated 6/28/99). Plaintiffs filed an amended complaint on July
9, 1999. The amended complaint contains several new allegations,
including that 1) SUNY is one of the few hospitals located within a
reasonable driving distance of the Constance\'s home; 2) SUNY is the
only Level One Trauma Center in the region; 3) Navella Constance had
developed a serious medical condition (cervical cancer) since 1996 that
required hospitalization and ongoing care; 4) given its proximity, it is
reasonably possible that Navella will seek services from SUNY; and 5) it
is reasonably possible that Vernal will accompany Navella if she uses
SUNY\'s services. (Amended Complaint).

Defendant filed its motion for summary judgment[^1] on October 25, 2000,
based solely upon arguments made in its earlier motion for judgment on
the pleadings. Defendant alleged that: 1) the Constances lack standing
because they cannot prove an "injury in fact;" and 2) plaintiffs fail to
prove discriminatory intent. The only new information or argument in
support of the motion is a recent federal district court decision in
*Freydel v. New York Hospital*, 2000 WL 10264 (S.D.N.Y.).

As explained below, reliance upon *Freydel* is misplaced because the
facts are plainly distinguishable from the present facts, and because
the district court decision, which is currently on appeal to the Second
Circuit, is not controlling on this Court.[^2] There are genuine issues
of material fact on Plaintiffs\' standing to seek injunctive relief and
on Defendant\'s discriminatory intent, so as to deny Defendant\'s motion
for summary judgment.

**[Background]{.underline}**[^3]

Regulations implementing Title II of the Americans with Disabilities Act
("Title II"),[^4] and Section 504 of the Rehabilitation Act ("Section
504\")[^5] require public entities and recipients of federal financial
assistance to ensure "effective communication" with persons who are deaf
or hard of hearing by providing appropriate auxiliary aids and services,
28 C.F.R. § 35.160; 45 C.F.R. § 84.52(c)-(d), including qualified
interpreters, 28 C.F.R. § 35.104; 45 C.F.R.

§ 84.52(d)(3).[^6]

"Effective communication" is critical in virtually all medical contexts.
Without it, a care giver cannot obtain complete medical histories;
assess symptoms; provide for patient rights,

including informed consent; develop accurate diagnoses and prognoses;
develop, explain and administer procedures, medication and treatment
generally; provide counseling; or otherwise ensure that patients\' needs
are appropriately met. Failure to ensure that deaf and hard of hearing
patients can effectively communicate threatens the quality of care and,
even when treatment ultimately is successful, violates legally protected
rights. Moreover, depriving patients and companions such as Navella and
Vernal Constance of the means to communicate can cause needless panic,
fear and worry.

> **I. *FREYDEL V. NEW YORK HOSPITAL* IS DISTINGUISHABLE\
> FROM THIS CASE**

Defendant heavily relies on *Freydel v. New York Hospital*, 2000 WL
10264 (S.D.N.Y. 2000), to argue that plaintiffs lack standing.[^7] Such
reliance is misplaced as the case is plainly distinguishable from the
present facts.

The *Freydel* court ruled that a patient who was denied a Russian sign
language interpreter during the first week of her stay at the hospital
was not entitled to injunctive relief, after noting the changes in the
circumstances which led Mrs. Freydel to be sent to New York Hospital: 1)
she was transferred to New York Hospital only because her primary care
physician was at that time a member of the hospital\'s cardiac
catheterization laboratory; and 2) subsequently, her primary care
physician left New York Hospital, thus severing Mrs. Freydel\'s previous
link with the institution. 2000 WL 10264 at \*3. The court also found
that the relationship between her community hospital and defendant
hospital was "too weak" to form a basis to establish a real or imminent
need for her to utilize defendant hospital in the future, and that one
visit to a hospital was insufficient to establish that Mrs. Freydel was
likely to again find herself seeking treatment at the hospital. Based on
these facts, the court concluded that Mrs. Freydel has failed to provide
evidence of a likely future encounter between herself and defendant
hospital.

The present record shows that Constances have a far stronger link with
SUNY. Mrs. Constance\'s recurring health condition, as well as her
cervical cancer, is likely to require future care.[^8] She is likely to
require that care at SUNY for her conditions.[^9] A trier of fact could
reasonably conclude that if Mrs. Constance suffers again from the
condition for which she was originally sent to SUNY in 1996, she is
likely to be sent to SUNY\'s emergency department. Also, a trier of fact
could reasonably conclude that if her current course of treatment fails,
she will likely choose to go to SUNY, one of Upstate New York\'s most
advanced cancer treatment centers.[^10] Thus, it is extremely likely
that Mrs. Constance will require future care for her conditions at
SUNY.[^11]

II. **THE RECORD CONTAINS EVIDENCE THAT SUNY WILL NOT\
    ADEQUATELY PROTECT THE CONSTANCES\' RIGHT TO\
    EFFECTIVE COMMUNICATION**[^12]

Defendant claims that its hospital policies and procedures for
interpreting services make recurrence of alleged violations less likely
(Def. Memo, p. 17). In the present case, there is, however, evidence
that SUNY has not corrected serious programmatic deficiencies in the
policy regarding whether or when interpreters should be obtained. The
New York State Department of Health specifically found that SUNY\'s
policy, as it existed in 1996, was deficient,[^13] and there is evidence
that SUNY has not changed the policy substantively in response to the
DOH findings.[^14] Moreover, the record shows that SUNY has continued
its failure to provide interpreter services in similar incidents. First,
the New York State Department of Health cited deficiencies in SUNY's
interpreter services not only in this case, but also in two prior cases
in 1994.[^15] Second, even after being cited for these deficiencies,
SUNY still continued its failure to provide interpreter services *more
than two years* after plaintiffs' experiences when SUNY failed to
provide interpreters for another deaf patient, Joan Emerick, who
repeatedly requested services during her four-day hospitalization in
August 1998.[^16] As stated above, evidence shows that there was a lack
of clarity in the SUNY policy and that SUNY failed to correct the policy
after ordered to do so by the State.

III\. THE RECORD CONTAINS EVIDENCE OF SUNY\'S DELIBERATE\
INDIFFERENCE TO THE CONSTANCES\' FEDERALLY PROTECTED\
RIGHTS

The Second Circuit concluded in *Bartlett v. New York State Board of Law
Examiners* that a plaintiff may obtain monetary damages for intentional
violations of Title II and Section 504 by establishing "deliberate
indifference to the strong likelihood that a violation of federally
protected rights will result from the implementation of the
\[challenged\] policy . . . \[or\] custom". 156 F.3d at 331 (brackets in
original)(citations omitted). In this context, unlawful discrimination
"does not require animosity or ill will". *Id.* Indeed, as the district
court noted in *Bartlett*, liability can attach even where "defendants
may have had the best intentions." *Bartlett v. New York State Board of
Law Examiners***,** 970 F. Supp. 1094, 1151 (S.D.N.Y. 1997), *aff\'d in
relevant part, vacated in part*, 156 F.3d 321 (2d Cir. 1998), *vacated
on other grounds and remanded*, \_\_ U.S. \_\_, 119 S. Ct. 2388 (1999).
This analysis is consistent with the Supreme Court\'s conclusion in
*Alexander v. Choate*, 469 U.S. 287 (1985), that "much of the conduct
Congress sought to alter in passing the Rehabilitation Act would be
difficult if not impossible to reach were the Act construed to proscribe
only conduct fueled by discriminatory intent." *Id.* at 296-97.

Defendant argued that Plaintiffs have no cause of action because they
cannot prove discriminatory intent. Contrary to the defendant\'s
arguments, the record contains evidence of SUNY\'s "deliberate
indifference" to the Constances\' federally protected rights that is
sufficient to defeat summary judgment. That evidence includes SUNY\'s
ongoing failure to meet requests for interpreters,[^17] its failure to
train[^18] or supervise its staff regarding hospital policy and the
rights of deaf and hard of hearing persons generally,[^19] and the
complete disregard of the Constances\' requirements for effective
communication by hospital staff and officials who had both knowledge of
those requirements and the ability to address them.[^20]

A trier of fact could reasonably conclude that the evidence is
sufficient to satisfy the deliberate indifference standard that this
Court recently concluded governs the availability of compensatory
damages under Title II and Section 504, *see Bartlett v. New York State
Board of Law Examiners*, 156 F.3d 321, 331 (2d Cir. 1998), *vacated on
other grounds and remanded*, \_\_ U.S. \_\_, 119 S. Ct. 2388 (1999), and
to withstand SUNY\'s summary judgment motion on plaintiffs\' damage
claim, *cf. Wyant v. Okst*, 101 F.2d 845, 856-57 (2d Cir. 1994) (summary
judgment inappropriate when a reasonable juror could conclude that
defendants in § 1983 action were deliberately indifferent to
plaintiff\'s needs).[^21]

# CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment
should be denied in its entirety.Dated: Washington, D.C.

December 1, 2000

Respectfully Submitted,

DANIEL J. FRENCH BILL LANN LEE

United States Attorney Assistant Attorney General

Northern District of Civil Rights Division

New York

WILLIAM H. PEASE By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Chief, Civil Division JOHN L. WODATCH

Assistant U.S. Attorney Chief

Bar Roll No. 102338 PHILIP L. BREEN

100 South Clinton Street Special Legal Counsel

Syracuse, NY 13261-7198 RENEE M. WOHLENHAUS

\(315\) 448-0672 Deputy Chief

> ROBERT J. MATHER

Trial Attorney

Bar Roll \# 502617

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

Attachment

Title II Technical Assistance Manual

UNITED STATES DISTRICT COURT

NORTHEN DISTRICT OF NEW YORK

NAVELLA CONSTANCE AND

VERNAL CONSTANCE,

*Plaintiffs,*

-against- 98-CV-1440

(FJS)(GJD)

STATE UNIVERSITY OF NEW YORK

HEALTH SCIENCE CENTER,

*Defendant.*

## ENCLOSURE TO

**UNITED STATES' RESPONSE AS *AMICUS CURIAE* TO\
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT**

DANIEL J. FRENCH BILL LANN LEE

United States Attorney Assistant Attorney General

Northern District of Civil Rights Division

New York

> JOHN L. WODATCH

WILLIAM H. PEASE Chief

Assistant U.S. Attorney

Chief, Civil Division RENEE M. WOHLENHAUS

Bar Roll No. 102338 Deputy Chief

100 South Clinton Street

Syracuse, NY 13261-7198 PHILIP L. BREEN

> Special Legal Counsel

ROBERT J. MATHER

December 1, 2000 Trial Attorney

Bar Roll \# 502617

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-2236

[^1]: ^?^On October 25, 2000, the Attorney General of the State of New
    York filed a memorandum in support of a motion for summary judgment.
    (This memorandum is cited herein as "Def. Mem. \_\_.")

[^2]: ^?^At most, the Court should consider staying this action until
    the Second Circuit rules in *Freydel* rather than rely upon the case
    to decide summary judgment in the face of contested facts.

[^3]: ^?^For a summary statement of the case, the United States
    respectfully refers the Court to plaintiffs' statement of the case
    contained in plaintiffs\' memorandum of law in opposition to
    defendant\'s motion for summary judgment, which are adopted herein
    by reference. (This memorandum is cited herein as "Pls.\' Mem.
    \_\_\_.")

[^4]: ^?^42 U.S.C. §§ 12131-34.

[^5]: ^?^29 U.S.C. § 794.

[^6]: ^?^For information on the practical necessity of providing
    interpreters in health care settings, *see* Elizabeth Ellen Chilton,
    Note, *Ensuring Effective Communication: The Duty of Health Care
    Providers to Supply Sign Language Interpreters for Deaf Patients,*
    47 Hastings L.J. 871, 873 & n.12 (1996)(citing studies).

[^7]: ^?^Defendant fails to note that *Freydel* is on appeal to the
    Second Circuit and was scheduled for argument before the court
    November 29th. One of the issues argued is whether a deaf patient
    who was denied interpreter services on a single visit to a hospital
    and continues to have medical need, which may require her to return
    to the hospital, have standing for injunctive relief.

[^8]: ^?^*See* Pls.\' Mem., p. 2; Depo., Vernal Constance, pp. 24-25;
    Pls.\' Mem., p. 8-9; Dep., Navella Constance, p. 39; Navella
    Constance Aff., ¶ 11; Pls.\' Mem., p. 9, Navella Constance, p. 39;
    Navella Constance Aff., ¶ 11.

[^9]: ^?^*See* Pls. Mem., p. 9; Navella Constance Aff., ¶ 12.

[^10]: ^?^*See* Pls.\' Mem., p. 9; SUNY website,
    http://www.unversityhospital.org/cancer; Navella Constance Aff.¶ 12.

[^11]: ^?^Because it is likely that Navella will return to SUNY, it is
    also likely that Vernal will return with her. Therefore, he too has
    standing for purposes of an injunction against SUNY.

[^12]: ^?^Regarding the correct requirements for establishing standing
    injunctive relief under Title II and Section 504, the Department
    respectfully refers this court to the Department of Justice\'s
    Memorandum of Law As Intervenor and *Amicus Curiae* in Response to
    Defendant\'s Motion for Judgment on the Pleadings, at pp. 12-16.

[^13]: ^?^*See* Pls.\' Mem., p. 4; Ex.1 - DOH Report.

[^14]: ^?^*See* Pls.\' Mem., p. 9; Ex. 2 & 5 - HR Policy .

[^15]: ^?^*See* Attachment 1 to Plaintiff's Amended Complaint.

[^16]: ^?^*See* Attachment 3 to Plaintiff's Amended Complaint.

[^17]: ^?^*See* Pls. Mem., pp. 1-2; Vernal Constance Depo. p. 5; Pls.
    Mem., p. 4; Ex. 1- DOH Report.

[^18]: ^?^*See* Pls. Mem., p. 5; Maxine Thompson Depo, p. 38.

[^19]: ^?^*See* Pls. Mem., p. 4; Ex. 2 - Policy H2; D. Pipas Depo, pp.
    27-28; Maxine Thompson Aff., p 8.

[^20]: ^?^*See* Pls. Mem., pp. 1-2; Vernal Constance Depo. p. 5.

[^21]: ^?^In *Weyant*, the Second Circuit observed that factual
    questions about the sate of knowledge necessary to establish
    deliberate indifference are ordinarily determined after trial
    because, in most cases, there will be genuine issues of material
    fact that preclude summary judgment. 101 F.3d at 856-57.