pneumonia, staph aureus bacteremis, upper GI bleeding, and AIDS.
Woolfolk alleges that Duncan treated him "like an outcast" because he is HIV-positive, and never made any bona fide medical judgments about Woolfolk's condition.
II. STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only "material" if it might affect the outcome of the case. See id. at 248, 106 S. Ct. at 2510.
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554. After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S. Ct. at 2552.
I shall first address Woolfolk's claims against Duncan, and then discuss Woolfolk's claims against PH and HealthPASS. Finally, I shall address PH's motion for attorney fees.
1. Rehabilitation Act Claim
The Rehabilitation Act provides that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." § 794(a). This statutory section "creates a private right of action in favor of persons who allege to have been subjected to illegal discrimination based on handicap." Strathie v. Department of Transp., 716 F.2d 227, 229 (3d Cir. 1983).
Duncan asserts that Woolfolk's Rehabilitation Act claim fails because (1) Woolfolk was not "otherwise qualified" for medical treatment because, but for his HIV status, Woolfolk would not be eligible for medical treatment; and (2) Duncan continued to treat Woolfolk after learning that he was HIV-positive, so that Woolfolk cannot demonstrate that he was excluded from treatment "solely by reason of . . . his disability."
I disagree as to both assertions.
The Rehabilitation Act has been applied predominantly to challenge allegedly discriminatory denials of employment or admission to educational programs. See, e.g., School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987) (employment); Southeastern Commun. College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979) (educational programs). Guided by the premise that "mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context," the Supreme Court has held that a person is "otherwise qualified" if he "meet[s] all of a program's requirements in spite of his handicap." Davis, 442 U.S. at 405-06, 99 S. Ct. at 2366-67). The "otherwise qualified" criterion in the employment and education contexts, therefore, connotes a functional component. However, such an interpretation may not readily transfer to the context of medical benefits
because it may be meaningless to speak in terms of functional requirements for medical care.
Nevertheless, simply because the functional standard adopted in employment and education does not neatly "fit" in the medical benefits context does not necessarily mean that the Rehabilitation Act does not apply to that context.
Cf. Bowen, 476 U.S. at 624, 106 S. Ct. at 2110-11 (1986) (plurality opinion) (recognizing that a hospital rule or state policy limiting the "meaningful access" of an infant with a disability to medical services provided by hospitals is subject to challenge under the Rehabilitation Act);
id. at 656, 106 S. Ct. at 2127 (White, J., dissenting) ("Where a decision regarding medical treatment for a handicapped newborn properly falls within the statutory provision, it should be subject to the constraints set forth in § 504."); Alexander v. Choate, 469 U.S. 287, 304, 105 S. Ct. 712, 721, 83 L. Ed. 2d 661 (1985) (reviewing, under the Rehabilitation Act, modification of healthcare benefits provided by state Medicaid program). See also 45 C.F.R. 84.52 (1993) (relying on Rehabilitation Act to prohibit discrimination against individuals with disabilities with regard to health services); Alexander, 469 U.S. at 304 n.24, 99 S. Ct. at 722 n.24 (Department of Health and Human Services ("HHS") regulations are an important source of guidance on the meaning of the Rehabilitation Act).
In the context of medical benefits, a more meaningful "otherwise qualified" standard may be based on the premise that disability alone is not a permissible ground for withholding medical benefits. Cf. Discriminatory Nontreatment at 1654 (arguing that what is impermissible under the Rehabilitation Act and the ADA is "a decision-maker's reliance on the mere existence of disability as a proxy for an individualized, factual assessment of the disabled person's condition"). This principle is particularly acute where the plaintiff seeks medical benefits from a primary care physician ("PCP") in a managed healthcare system ("MHS").
In such a system, the participant depends upon the PCP not only for medical treatment, but also for other benefits, such as authorization for hospitalization and referrals to specialty care.
See Member Handbook at 5. I therefore conclude that an MHS participant with a disability is "otherwise qualified" for medical benefits if there is no factor apart from the mere existence of disability that renders the participant unqualified for the benefit.
If the MHS participant is otherwise qualified for medical benefits (e.g., satisfies plan eligibility requirements), the focus appropriately shifts to the defendant's reasons for withholding the benefit. A PCP who receives federal funds to provide healthcare benefits may not withhold medical benefits, without reasonable accommodation, solely based on a participant's disability, but may only act pursuant to a bona fide medical reason. Cf. Alexander, 469 U.S. at 301-02, 105 S. Ct. at 720 ("An otherwise qualified handicapped individual must be provided with meaningful access to the benefit the grantee offers. . . . To assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made."); Discriminatory Nontreatment at 1651 (ADA should prohibit treating a patient differently simply on the existence of disability). See also University Hosp., 729 F.2d at 162 (Winter, J., dissenting) (Rehabilitation Act permits inquiry into whether a medical treatment decision was based on a bona fide medical judgment, or based solely on disability); Glanz v. Vernick, 750 F. Supp. 39, 46 (D. Mass. 1990) (same).
With these concepts in mind, I conclude that summary judgment for Duncan is inappropriate. First, I cannot conclude as a matter of law that Woolfolk was not "otherwise qualified" for medical treatment, hospitalization, or referral to specialty care because the record does not establish that any factor apart from the mere existence of Woolfolk's HIV status made him unqualified for these benefits.
Second, there are genuine issues of material fact as to whether Duncan withheld medical benefits solely based on Woolfolk's HIV status. First, Woolfolk's expert report suggests that from November 1, 1994 through November 4, 1994, Duncan provided Woolfolk with substandard medical treatment. See Pl.'s Br. (Doc. No. 53) Ex. A (stating that "there was absolutely no medical justification for Dr. Duncan's behavior which in my estimation amounted to refusal of necessary and essential medical care and abandonment of the patient").
Second, the record contains evidence from which a jury reasonably could conclude that although Duncan does not feel qualified to treat HIV-related illnesses, and although Woolfolk repeatedly sought treatment, Duncan took no bona fide measures to ensure that Woolfolk received medical care, which he would do for seriously ill non-HIV-positive patients. Compare Duncan Dep. at 30 (Duncan would actively refer seriously ill non-HIV-positive patients to medical specialists) and id. at 38 (Duncan does not feel qualified to treat patients who are HIV-positive) with id. at 54 (although Duncan does not "treat" a person with AIDS, he also does not actively refer the person to an infectious disease specialist) and id. at 56 (Duncan suggested, but did not actually refer Woolfolk to an infectious disease specialist). See Bowen, 476 U.S. at 655 n.8, 106 S. Ct. at 2127 n.8 (White, J., dissenting) (arguing that "'reasonable accommodation' might require more than mere impartial dispensing of identical medical treatment"); cf. id. at 659, 106 S. Ct. at 2129 (White, J., dissenting) ("Discrimination may occur when a doctor encourages or fails to discourage a parental decision to refuse consent to treatment for a handicapped child when the doctor would discourage or actually oppose a parental decision to refuse consent to the same treatment for a nonhandicapped child."). Third, Woolfolk has produced evidence that on November 7, 1993, Duncan refused to authorize emergency medical care for Woolfolk. Pl.'s Br. (Doc. No. 53) Ex. C, Duncan-6. Woolfolk has therefore carried his burden of showing material issues of fact as to whether Duncan provided substandard care, refused to authorize Woolfolk's hospitalization, and failed to refer Woolfolk to specialty care, all without a bona fide medical justification, and solely because Woolfolk is HIV-positive.
Accordingly, because there are genuine issues of material fact regarding whether Woolfolk was otherwise qualified for medical benefits, and whether Woolfolk was denied medical benefits solely because of his HIV status, I shall deny summary judgment for Duncan on this claim.
2. ADA Claims
The ADA provides that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the . . . services . . . of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C.A. § 12182 (West Supp. 1994). Private hospitals and professional offices of health care providers are places of public accommodation for purposes of § 12182. 42 U.S.C.A. § 12181(7)(F) (West Supp. 1994).
Duncan asserts that he is entitled to summary judgment on the ADA claim because Woolfolk has no evidence that Duncan treats all HIV-positive patients differently than non-HIV-positive patients. However, nothing in the language of the statute requires such proof.
See 42 U.S.C.A. § 12188(a). Accordingly, I shall deny summary judgment for Duncan on this claim.
3. State Law Claims
a) Intentional Infliction of Emotional Distress
To recover for intentional infliction of emotional distress, a plaintiff must establish (1) intentional or reckless conduct by the defendant that was (2) extreme and outrageous (3) causing (4) severe emotional distress. See Williams v. Guzzardi, 875 F.2d 46, 52 (3d Cir. 1989). Duncan asserts that Woolfolk's emotional distress claim fails because Duncan's conduct was not sufficiently outrageous. I cannot conclude as a matter of law that Duncan's alleged failure to provide medical benefits was not sufficiently extreme. See Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 1994 U.S. Dist. LEXIS 15110, 1994 WL 634187 (E.D. Pa. 1994) (refusing to dismiss intentional infliction of emotional distress claim where examining doctor demanded that injured patient attempt to walk, and then refused to help her up, and then berated her after she fell to the floor); Hoffman v. Memorial Osteopathic Hosp., 342 Pa. Super. 375, 492 A.2d 1382 (Pa. Super. Ct. 1985) (concluding that jury could find intentional infliction of emotional distress where emergency room physician ignored the pleas for help of a patient suffering from a neurological disease who had fallen to the floor and was allowed to remain there for more than one hour); see also Guzzardi, 875 F.2d at 52 (noting that Pennsylvania courts have been more amenable to intentional infliction of emotional distress claims when they involve special relationships between plaintiff and defendant); see also Howe v. Hull, 873 F. Supp. 70, 1994 U.S. Dist. LEXIS 17417, 1994 WL 682944, at *10 (N.D. Ohio 1994) (refusing to conclude as a matter of law that a physician's refusal to treat a seriously ill patient for any discriminatory reason is not extreme and outrageous conduct); Miller v. Spicer, 822 F. Supp. 158, 169-70 (D. Del. 1993) (same). Accordingly, I shall deny summary judgment for Duncan on this claim.
Woolfolk's second amended complaint includes a separate claim against Duncan for "abandonment." This charge is perplexing because Woolfolk has not cited any authority showing that such a cause of action exists in Pennsylvania. Although abandonment may constitute evidence of negligence, see, e.g., Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 685 (Pa. 1983), Woolfolk has never clearly alleged that Duncan was negligent.
However, evidence of abandonment may be used to show that the defendant acted with reckless indifference to the plaintiff's interests, such that punitive damages may be appropriate. See Medvecz v. Choi, 569 F.2d 1221, 1227-28 (3d Cir. 1977). Accordingly, I shall grant summary judgment for Duncan on Woolfolk's abandonment "claim," but note that Woolfolk's evidence, if any, of abandonment may be used to support a demand for punitive damages.
c) Punitive Damages
Duncan does not assert that punitive damages may not be awarded under the Rehabilitation Act, or the ADA, or under Pennsylvania law for breach of implied contract or intentional infliction of emotional distress; instead, Duncan alleges that his conduct was not sufficiently outrageous to justify punitive damages in this case. That, however, is an issue of fact for the jury. See Doe v. Kohn, Nast, & Graf, P.C., 862 F. Supp. 1310, 1329 (E.D. Pa. 1994). Accordingly I shall not grant summary judgment for Duncan on this prayer for relief.
B. PH and HealthPASS
Woolfolk asserts that PH and HealthPASS are vicariously liable for Duncan's conduct. Additionally, Woolfolk alleges that PH and HealthPASS negligently hired Duncan, and that HealthPASS breached its contract with Woolfolk.
I shall first address vicarious liability, and then address the other claims.
1. Vicarious Liability
Under Pennsylvania law, an employer may be liable for the intentional torts committed by a servant,
but not for those committed by an independent contractor. See Capan v. Divine Providence Hosp., 287 Pa. Super. 364, 430 A.2d 647, 648 (Pa. Super. Ct. 1980); Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (Pa. 1970).
A person is a servant if her master not only controls the result of the work, but has the right to direct the way it is performed. See Jones v. Century Oil U.S.A., Inc., 957 F.2d 84, 86 (3d Cir. 1992). A servant "remains entirely under the control and direction of the master." Id. at 87 (internal quotations omitted). By contrast, an independent contractor retains exclusive control over the manner in which the work is performed. See Moon Area School Dist. v. Garzony, 522 Pa. 178, 560 A.2d 1361, 1367 (Pa. 1989). Except where the facts are undisputed, the jury determines whether an agent is a servant or an independent contractor. Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299, 300-301 (Pa. 1950). The parties do not dispute that Duncan performed services for PH and HealthPASS, but disagree as to Duncan's status as servant or independent contractor.
Summary judgment for PH is appropriate because even if I assume that Duncan was PH's servant, Woolfolk has offered no evidence that Duncan's private medical practice was within the scope of Duncan's employment. Specifically, Woolfolk has offered no evidence that PH employed Duncan to perform private medical services at the Office, or that PH specified any time and space limits on Duncan's private medical practice at the Office, or that Duncan's private practice was actuated in any way by a purpose to serve PH.
However, summary judgment for HealthPASS is inappropriate because there are genuine issues of material fact regarding Duncan's status as servant or independent contractor. The Agreement provides that HMA has the right to exercise significant control over Duncan's medical practice with respect to HealthPASS enrollees. See Pl.'s Br. (Doc. No. 28) Ex. B, § III.B (limiting physician's ability to refuse services to enrollees); id. § III.C (restricting physician's ability to transfer coverage of an enrollee to another physician); id. § V.A (specifying services that physician may provide to enrollees); id. (prohibiting physician from collecting fees from enrollees for covered services); id. § V.C (limiting physician's ability to refer enrollee for specialist care); id. § V.E (setting time when physician must be available for medical consultation with enrollees); id. § V.G (implicitly controlling the types of medical treatment services provided by physician to enrollees) id. § VI (authorizing HMA to inspect, at any time during normal business hours, physician's office and services provided to enrollees); id. § VII (specifying recordkeeping requirements); id. § XIII (specifying personnel and training requirements for physician's medical office staff); id. § XVIII (prohibiting physician from discriminating against enrollees based on health status). Additionally, Woolfolk has offered evidence that HealthPASS has in fact inspected the Office. See Duncan Dep. at 47. Because a jury reasonably could conclude from this evidence that HMA had the right and authority to interfere with and control Duncan's medical treatment of HealthPASS enrollees, there are genuine issues of material fact as to whether Duncan was HealthPASS' servant, acting in the scope of his employment, such that HealthPASS may be vicariously liable for Duncan's alleged conduct.
2. Negligent Hiring and Breach of Contract
Woolfolk alleges that PH and HealthPASS negligently hired Duncan, and that HealthPASS breached its contract with Woolfolk. I shall address each issue in turn.
a) Negligent Hiring
Woolfolk's negligent hiring allegations are essentially claims under § 411 of the Restatement (Second) of Torts.
See Lutz v. Cybularz, 414 Pa. Super. 579, 607 A.2d 1089, 1092 (Pa. Super. Ct. 1992) (implicitly adopting § 411). HealthPASS asserts that it never "hired" Duncan, and it therefore is not responsible for his acts. However, because Duncan was at least HealthPASS' independent contractor, HealthPASS may be liable under § 411. Because HealthPASS has never challenged the substance of Woolfolk's negligent hiring claim, I cannot grant HealthPASS summary judgment. Woolfolk's § 411 claim against PH fails, however, because the record contains no evidence that PH ever employed Duncan to provide primary care medical services to anyone. Accordingly, I shall deny HealthPASS' motion, but grant summary judgment for PH on this claim.
b) Breach of Contract
Beyond his bare allegation, Woolfolk has never identified, or produced evidence of how HealthPASS breached its contract with him. Accordingly, I shall grant summary judgment for HealthPASS on this claim. Woolfolk also seeks to hold HealthPASS liable under respondeat superior for Duncan's alleged breach of implied contract. Because Woolfolk has not cited any authority that respondeat superior liability exists in such a context, I shall also grant summary judgment for HealthPASS on the implied contract claim.
C. PH's Motion for Sanctions
PH vehemently seeks to have Woolfolk's counsel sanctioned for "vexatiously maintaining this wholly frivolous litigation against [PH]." PH Br. (Doc. No. 61) at 19. However, PH has never clearly articulated the basis for its request. First, PH submitted a document captioned as a reply brief and a "Motion for Rule 11 Sanctions." PH Reply and Br. (Doc. No. 54). However, PH's "motion" fails to comply with the requirements of Rule 11. See, e.g., Fed. R. Civ. P. 11(c)(1)(A) ("A motion for sanctions . . . shall be made separately from other motions"); id. (requiring that the motion be served first without being filed, to permit non-moving party the opportunity to withdraw or correct the challenged allegation). In addition, apparently unwilling to follow the mandates of Rule 11, PH simultaneously "urged that this Court, on its own initiative" order Woolfolk's counsel to show cause why he has not violated Rule 11(b). PH Reply and Br. (Doc. No. 54) at 1. Later, however, PH apparently abandoned any hope of invoking its own novel interpretation of Rule 11, and simply urged that I resort to this Court's inherent power to assess attorney fees against Woolfolk's counsel. PH Br. (Doc. No. 61) at 17. I shall deny PH's requests.
Federal courts possess inherent power to impose attorney fees as a sanction for bad faith conduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 2135, 115 L. Ed. 2d 27 (1991). This power exists even if the conduct could also be sanctioned under 28 U.S.C. § 1927
or under Rule 11. Id., 111 S. Ct. at 2135-36. A court must, however, "exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees." Id. The court should ordinarily rely on the Rules and the statute to sanction even bad faith conduct, but if the court determines that neither the statute nor the Rules are adequate, the court may safely rely on its inherent powers. Id., 111 S. Ct. at 2136.
Because this Court's inherent power to impose attorney fees should be exercised with caution, and because PH has not clearly shown why Rule 11 or § 1927 are inadequate, I decline at this time PH's multifaceted invitation to impose sanctions on Woolfolk's counsel.
In summary, the following claims remain against Duncan: (1) Rehabilitation Act (Count I); (2) ADA (Count II); (3) intentional infliction of emotional distress (Count VI); (4) breach of implied contract (Count VIII); and (5) punitive damages (Count XI). Additionally, the following claims remain against HealthPASS: (1) Rehabilitation Act (Counts I and V); (2) ADA (Count II); (3) intentional infliction of emotional distress (Count VI); (4) punitive damages (Count XI); and (5) negligent hiring (Count X). No claims remain against PH.
An appropriate order follows.
AND NOW, this 5th day of January 1995, it is hereby ORDERED that
1. Defendants' consolidated Motions for Summary Judgment (Document Nos. 3, 5, 12, 15, 16, 17, and 48) are GRANTED IN PART AND DENIED IN PART as follows:
a) Summary Judgment for Defendant Theodore G. Duncan is GRANTED on COUNT XII;
b) Summary Judgment for Defendant Theodore G. Duncan is DENIED ON COUNTS I, II, VI, and XI;
c) Summary Judgment for Defendant Pennsylvania Hospital is GRANTED ON COUNTS I, II, III, IV, VI, VIII, IX, XI, and XII;
d) Summary Judgment for Defendant HealthPASS is GRANTED ON COUNTS VII, VIII, and XII;
e) Summary Judgment for Defendant HealthPASS is DENIED ON COUNTS I, II, V, VI, X, and XI;
2. JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT PENNSYLVANIA HOSPITAL AND AGAINST PLAINTIFF JOHN WOOLFOLK;
3. Defendant's Motion for Attorney Fees (Document No. 54) is DENIED;
4. All provisions of the Scheduling Order REMAIN IN EFFECT.
BY THE COURT:
JOHN R. PADOVA, J.