Either Title III needs damages or we need to change the law of standing*

Claudia Adkins was deaf and blind, and was — because of this — denied service at and turned away from the Summit View of Farragut nursing home in Knoxville, TN.   “Turned away” in this case is not a metaphor or legal/poetic license.   She was transported from the hospital to Summit View in an ambulance and they turned her away and sent her back to the hospital because she was deaf and blind.

Summit View did not accept Adkins for admission to the facility because it would have been unable to communicate with her, given her condition and its inability to obtain an interpreter. To this end, Summit View’s Medical Director at that time, Dr. Bonita Gonzalez (“Dr.Gonzalez”), was present when Adkins arrived and determined that she needed to be returned to UT Medical Center because “her needs could not be met at Summit View due to her conditions”

Southwell v. Summit View of Farragut, LLC, 2013 WL 6061332, at *1 (E.D. Tenn. Nov. 18, 2013).   Ms. Adkins died of cancer 10 months later in Florida.

Ms. Adkins’s daughter sued in state court in Tennessee for medical malpractice and wrongful death.   Summit View removed to federal court, argued that the claims should be construed under Title III of the Americans with Disabilities Act and that that statute “did not provide any vehicle for relief.”   Southwell v. Summit View of Farragut, LLC, 494 Fed. App’x 508, 510 (6th Cir. 2012).

“[D]id not provide any vehicle for relief” means that because Title III has only an injunctive remedy and no damages, 42 U.S.C. § 12188(a), discriminators can discriminate as much as they want as long as the discriminatee dies before the end of the case.

The Tennessee district court dismissed the ADA claim — it had no choice — and dismissed the state law claims on state law grounds.   The plaintiff appealed.   The Sixth Circuit had to agree on the ADA claim:

As [plaintiff] Southwell may not seek monetary damages, and Adkins’s death makes any conceivable injunctive relief moot, the district court concluded that Southwell could not receive relief under the ADA. . . . [O]ur review of the record and the case law supports the district court’s conclusion.

Id., 494 Fed. App’x at 512.   The Sixth Circuit remanded to permit the plaintiff to plead simple negligence holding, generously, that “where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.”   Id. at 513.   On remand, the plaintiff pleaded negligence per se, the Tennessee Nursing Home Residents Act, the Tennessee Adult Protection Act, intentional infliction of emotional distress, and failure to comply with various nursing home regulations.     The district court dismissed all of these claims on what seem to me to be very sophistic grounds, though I’m not a Tennessee personal injury lawyer.   Southwell, 2013 WL 6061332.

Sadly, the plaintiff never pleaded a claim under the Rehabilitation Act, which prohibits disability discrimination by recipients of federal funding.   29 U.S.C. § 794.   Given that Summit View apparently has Medicaid/Medicare beds, this would have been a viable claim.   It would not have permitted injunctive relief — once Ms. Adkins had passed, that remedy was foreclosed — but it would have provided the damages claim that Title III does not have, and perhaps would have permitted the plaintiff to demand some sort of policy change in settlement.

Hoping the Department of Justice would be interested in investigating this appalling situation.

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* I know this has a certain magical quality to it, as we can’t “change” standing law without either   (1) a constitutional amendment; or (2) a reinterpretation of a couple of decades of Article III law.   But a girl can dream.   And blog.