United States District Court, D. Minnesota
Heather M. Gilbert, Terra L. Frazier, Gilbert Law PLLC,
Roseville, Minnesota, for Plaintiffs.
Matthew S. Frantzen, Marissa K. Linden, Ryan C. Ellis,
Gislason & Hunter LLP, Minneapolis, Minnesota, for
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE United States District Judge
9, 2013, Shaun Durand died after three days in intensive care
at Fairview Ridges Hospital (“the Hospital”) in
Burnsville, Minnesota. Shaun's parents, Roger and Linda
Durand, and his sister, Priscilla Durand, then commenced this
action against Defendant Fairview Health Services
(“Fairview”), operator of the Hospital, alleging
that it violated federal and state law by failing to provide
auxiliary aids for Roger and Linda-both of whom are
deaf-during Shaun's hospitalization. Presently before the
Court are the parties' cross-Motions for Summary
Judgment. For the reasons set forth below,
Fairview's Motion will be granted and the Durands'
Motion will be denied.
record reveals the following undisputed facts. Roger and
Linda are deaf, but their six children, including Priscilla
and Shaun (the decedent), can or could hear. (L. Durand Dep.
31.) The children learned to communicate with Roger and Linda
through a combination of speaking/lip-reading, Pidgin (a
simplified form of non-verbal communication), and American
Sign Language (“ASL”). (Id.) Thus, they
are able to communicate even though they have received no
formal sign-language training. Roger and Linda also used
e-mail to communicate, and Linda used a
“Sidekick” mobile phone to send e-mails and text
and each of the Durand children suffer from Marfan syndrome
in various degrees. (R. Durand Dep. 42; L. Durand Dep. 38.)
Shaun was first diagnosed at the age of seven. (L. Durand
Dep. 37.) By early 2013, he had undergone two major heart
surgeries and been diagnosed with congestive heart failure.
(Id. 43, 47-49.) Linda was aware of his diagnosis
and was present for both surgeries. (Id. 48.) On
February 11, 2013, Shaun, who was then 31 years old, executed
a health care directive designating Priscilla to
“represent [his] wishes and make [his] health care
decisions” in the event he was unable to do so.
(Frantzen Aff. Ex 9.) He further indicated he “would
not want Roger, Linda, or Pauline Durand present” if he
was near death. (Id.)
April 2013, Priscilla understood Shaun's “lifespan
was likely limited, ” and so did her parents; Priscilla
“always tr[ied] to relay” information concerning
his condition to her parents. (P. Durand Dep. 121-22). The
events at issue began one month later, on May 7, when
Priscilla brought Shaun to the Hospital after an
“exacerbation of his congestive heart failure.”
(P. Durand Dep. 130.) He was admitted to the Hospital's
intensive-care unit (“ICU”), and Roger and Linda
learned of his hospitalization the next day.
Priscilla and her sister, Darlene, alerted Roger and Linda to
Shaun's hospitalization. Sometime after 11:00 a.m. on May
8, Darlene went to Roger's and Linda's home. (D.
Durand Dep. 37-38.) She “told [her] parents
‘Don't go to work. You guys really need to come up
to the hospital right away. . . . This is probably going to
be it.'” (Id. 38.) In addition, Priscilla
e-mailed Linda and said they “should see [Shaun] right
away.” (L. Durand Dep. 58.) At approximately 1:30 p.m.,
Roger and Linda arrived at the Hospital and joined family
members in Shaun's room. (Id. 59; R. Durand Dep.
65.) Linda described her arrival as “a very confusing
time” (L. Durand Dep. 62), and Roger testified his
children “got [them] up to speed on what they knew so
far” (R. Durand Dep. 65). Almost immediately, Linda
went to a nurse's station and requested a live ASL
interpreter. (L. Durand Dep. 62.)
after 1:30 p.m., Fairview “advanced practice”
nurse Amy Klopp convened a care conference in Shaun's
room with Roger, Linda, and other members of the Durand
family. (Klopp Dep. 8; L. Durand Dep. 62, 68.) Priscilla
requested a live ASL interpreter for Roger and Linda (Klopp
Dep. 45), yet the conference occurred without one. (L. Durand
Dep. 63.) Linda attempted to follow Klopp by reading her
lips, but she “missed out on a lot” of
information; there were “some things that [she]
couldn't understand at all.” (Id. 62.) She
testified that Priscilla “volunteer[ed] as best she
could” to sign the information Klopp was conveying, but
she “didn't want [Priscilla] to do that because it
was so overwhelming.” (Id. 64.) Linda could
not recall what information she gleaned from reading lips.
(Id.) This conference lasted approximately one hour
and thirty minutes, during which time “decisions were
made to focus on comfort care, ” or end-of-life care.
(Id. 62; Frantzen Aff. Ex. 12 at 13.)
p.m., Fairview requested on-site ASL interpreter services. An
interpreter arrived at the Hospital approximately one hour
later. (Frantzen Aff. Ex. 12). With the aid of the
interpreter, Roger, Linda, and Priscilla then met with Klopp.
(L. Durand Dep. 68.) Klopp testified she had no memory of
this conference, but that she customarily would have
discussed Shaun's “current state and the care up to
[that] point, ” as well the earlier “decision to
focus on comfort for [Shaun].” (Klopp Dep. 178.)
Indeed, Roger testified that Klopp “talked about what
they were doing with Shaun, ” including the focus on
“comfort care, ” but he did not know what the
term meant. (R. Durand Dep. 67.) He thought “they were
just keeping [Shaun] comfortable” with medicine and
pain reduction. (Id. 67-68.) Linda testified she
recalled “something about comforting [Shaun], ”
but she did not “understand the terminology.” (L.
Durand Dep. 68, 70.) According to Priscilla, Klopp reiterated
that Shaun would “be on comfort care, ” but she
did not “go over what comfort care was.” (P.
Durand Dep. 146.)
and Linda acknowledge they had the opportunity to ask Klopp
questions through the ASL interpreter. (L. Durand Dep. 70-71;
R. Durand Dep. 70-71.) Roger did not ask questions because
“the doctors were in a hurry and [he] didn't have
time . . . [He] didn't want to keep them.” (R.
Durand Dep. 71.) He also felt that “because of [his
poor] relationship with Shaun, [he] didn't really feel
like [he] had the right to [ask questions].”
(Id.) Instead, he “just wanted to be there for
[Shaun], ” and he “pretty much let Priscilla
explain . . . what was going on.” (Id.) Roger
did not recall Linda asking questions. (Id.) Linda
testified that she did ask questions but Klopp did not answer
all of them because Linda “knew there was more
discussed” earlier. (L. Durand Dep. 71-72.) She could
not recall any specific question she asked. She testified
that this meeting lasted fifteen minutes. (Id. 72.)
that evening, around 5:00 p.m., Shaun's physician, Dr.
Faiqa Malik, held a meeting in Shaun's room.
(Id. 75-76.) No interpreter was present when this
meeting began, but one arrived near the end. (Id.
77-78, 83.) Linda recalled a conversation about
“comforting” Shaun, but she could not remember
exactly what Dr. Malik said. (Id. 87.) Linda had the
opportunity to ask questions through the interpreter but
could not recall whether she did so. (Id. 88.) Roger
also had the opportunity to ask Dr. Malik questions but did
not do so. (R. Durand Dep. 71.) Linda described this meeting
as “short” (L. Durand Dep. 76), although
interpreter records indicate Fairview paid the interpreter
from 3:44 p.m. to 6:00 p.m. that day (Frantzen Aff. Ex. 13).
6:00 p.m., Roger and Linda identify three instances when
Shaun received medical attention with no interpreter present.
(Doc. No. 89 at 6.) First, Fairview staff deactivated
Shaun's defibrillator, a decision made earlier in the day
by Priscilla. (L. Durand Dep. 92.) Linda was unaware of this
decision, and she did not understand what had happened until
Priscilla explained it to her. (Id.) Second, around
8:30 p.m., Shaun experienced a “really bad”
seizure. (P. Durand Dep. 181-82.) Dr. Karen Dorn responded,
stabilized Shaun, and discussed his status and treatment with
Priscilla. (Id.) Third, Shaun again experienced
“twitching” and “seizure-like
activity” around 11:00 p.m. (Doc. No. 90-10), and no
interpreter was present when Fairview staff responded
(although Roger and Linda do not assert that any information
was conveyed during or after this incident (see Doc.
No. 89 at 6)). Despite the absence of interpreters at these
times, Roger testified he “knew generally what was
happening” that evening. (R. Durand Dep. 83.) He never
asked Priscilla what decisions she had made regarding
Shaun's care. (Id.)