United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, District Judge.
Pending before the court is the defendants' motion to dismiss the plaintiff's complaint. (Doc. 11). The plaintiff, who was deaf, sued the defendant hospital and health systems under the ADA, the Rehabilitation Act, as well as the PHRA and asserted a negligent infliction of emotional distress claim. The plaintiff alleges that defendants failed to accommodate her hearing disability by providing an acceptable way to communicate information to her regarding the treatment and condition of her daughter who was transported to the hospital on an emergency basis. The hospital's Video Remote Interpreter ("VRI") did not work and a written note was used to communicate to the plaintiff and to inform her that her daughter passed away. Based upon the court's review of the motion and the materials related thereto, the motion to dismiss will be GRANTED, IN PART, AND DENIED, IN PART.
I. FACTUAL BACKGROUND
The plaintiff, Colleen Shaika, received a telephone call in the early morning of February 17, 2013, advising that her daughter Jennifer Shaika was being rushed to defendant Gnaden Huetten Memorial Hospital ("GHMH"), Lehighton, PA. The plaintiff, who has been deaf since birth, arrived at GHMH and requested an American Sign Language ("ASL") interpreter so she could be informed of her daughter's condition and treatment. GHMH did not have an interpreter when plaintiff arrived nor during any of her time at the hospital. GHMH had a VRl device, however, this device was not functioning and could not be utilized when plaintiff was at GHMH.
Plaintiff's daughter was pronounced dead on arrival at GHMH. The cause of death on Jennifer's death certificate was heroin toxicity complicated by her asthma. (Doc. 15-1). Since GHMH could not communicate with plaintiff using ASL, a nursing staff member communicated with her using a written note. The note informed plaintiff that her daughter died and simply stated, "your daughter is dead." (Doc. 15-2). No information as to how plaintiff's daughter died was given. The note also asked plaintiff if she needed medicine to help her relax and then indicated that plaintiff would be given a shot.
Subsequently, the plaintiff attempted to find out how and why her daughter died and through counsel she sought a meeting at GHMH. When plaintiff arrived at the meeting on April 4, 2013, with her counsel, GHMH did not have an interpreter and its VRI was again not operating. When GHMH staff realized that plaintiff was accompanied by counsel, the meeting was cancelled and plaintiff did not receive any information relating to her daughter's death that day.
On April 11, 2013, counsel for plaintiff requested her daughter's medical records and had to open an estate to obtain them. The medical records were received by plaintiff on May 7, 2013.
The plaintiff then commenced this action against GHMH, Blue Mountain Health System, Inc. ("BMHS"), Lehigh Valley Physicians Group ("LVPG") and Lehigh Valley Health Network, Inc. ("LVHN"). The plaintiff contends that the failure of defendants to effectively and adequately communicate with her about her daughter's medical condition violated federal as well as state law. The plaintiff alleges that places of public accommodation are required to ensure that persons with a disability are not denied services, and they must furnish appropriate auxiliary aids to ensure effective communication. The plaintiff avers that this accommodation extends to companions who themselves are individuals with disabilities. The law allows VRI as an acceptable method of providing auxiliary aids. Federal regulations indicate that written notes may not ensure effective communication, particularly in medical situations, and thus "interpreters should be used when the matter involves more complexity, such as in communication of medical history or diagnoses, in conversations about medical procedures and treatment decisions." 28 C.F.R. pt. 36 app A.
II. PROCEDURAL HISTORY
By way of relevant background, on February 10, 2015, the plaintiff initiated the instant federal question action pursuant to Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§12181, et seq., raising a claim of unlawful discrimination based on her hearing disability. (Doc. 1). The plaintiff has also alleged a violation of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§951-963, and asserted a federal claim under Section 504 of the Rehabilitation Act of 1973 (the "RA"), 29 U.S.C. §794. Further, the plaintiff raised a state law claim of negligent infliction of emotional distress.
As relief, the plaintiff seeks the court to declare defendants violated Title III of the ADA, Section 504, and the PHRA. The plaintiff also seeks the court to issue an injunction ordering defendants to provide qualified sign language interpreters or other appropriate auxiliary aids or services in order to ensure effective communication with deaf and hard-of-hearing individuals. Further, the plaintiff requests damages as well as her attorney's fees and costs.
This court's jurisdiction over the plaintiff's federal claims is based on 28 U.S.C. §1331 and, the court's pendent jurisdiction over her state claims is based on 28 U.S.C. §1337.
The defendants filed a motion to dismiss the entire complaint on April 13, 2015. (Doc. 11). On April 27, 2015, the defendants filed their brief in support of their motion with attached exhibits. (Doc. 15). On May 14, 2015, the parties filed a stipulation of voluntary of dismissal with respect to all claims asserted against defendants LVPG and LVHN, pursuant to Fed.R.Civ.P. 41(a)(1), since neither defendant held any ownership interest in GHMH. (Doc. 20). On May 18, 2015, the court approved of the stipulation and, defendants LVPG and LVHN were terminated from this case. (Doc. 23). On May 21, 2015, the plaintiff filed her brief in opposition to the defendants' motion to dismiss with exhibits, including the plaintiff's affidavit. (Doc. 26). The remaining defendants, GHMH and BMHS, filed a reply brief on June 4, 2015. (Doc. 27).
The motion to dismiss of defendants is ripe for disposition.
III. STANDARDS OF REVIEW
A. Rule 12(b)(1)
The defendants' motion, in part, facially challenges this court's subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure claiming that the plaintiff lacks standing to bring her claims for injunctive and declaratory relief since she has no present or continuing injury, thereby depriving this court of jurisdiction. "Dismissal under a facial challenge is proper only when the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous.'" Byrne v. Cleveland Clinic, 684 F.Supp.2d 641, 648-49 (E.D.Pa. 2010) (citing Kehr Packages, Inc., 926 F.2d at 1408-09) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). "In this circumstance, the court must accept all well-pleaded allegations in plaintiff's complaint as true, and must view them in the light most favorable to the non-movant." Id. at 649 (citing In re Kaiser Group Int'l Inc., 399 F.3d 558, 561 (3d Cir. 2005)). Additionally, "a party asserting that the court has jurisdiction always bears the burden of showing that the case is properly before the court." Id . (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).
"A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff's complaint." Vieth v. Pennsylvania, 188 F.Supp.2d 532, 537 (M.D.Pa. 2002) (citation omitted). "A challenge to the standing of a party raises the issue of justiciability and implicates the subject matter jurisdiction of a federal court." Miller v. Hygrade Food Products Corp., 89 F.Supp.2d 643, 646 (E.D.Pa. 2000). As such, the appropriate device to raise the issue of standing is a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. Id . "Unlike dismissal under [Fed. R.Civ.P.] 12(b)(6), dismissal under Rule 12 (b)(1) for lack of subject matter jurisdiction is not a judgment on the merits of plaintiff's case, but only a determination of the court ...