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Durand v. Fairview Health Services

United States District Court, D. Minnesota

January 18, 2017

Roger Durand, et al., Plaintiffs,
Fairview Health Services, Defendant.

          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 Defendant.


          RICHARD H. KYLE United States District Judge


         On May 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.[1] For the reasons set forth below, Fairview's Motion will be granted and the Durands' Motion will be denied.


         The 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 messages. (Id.)

         Roger and each of the Durand children suffer from Marfan syndrome in various degrees.[2] (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.)

         By 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.

         I. May 8

         Both 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.)

         Shortly 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.)

         At 2:46 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.)

         Roger 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.)

         Later 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).

         After 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.)

         II. ...

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