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Basta v. Novant Health, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

July 23, 2019

NEIL BASTA, Plaintiff,


          David S. Cayer, United States Magistrate Judge

         THIS MATTER is before the Court on “Defendants' Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6), ” Doc. 14, and the parties' associated briefs, Docs. 15-17.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and the Motion is now ripe for consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be granted as discussed below.


         Taking the facts of the Amended Complaint as true, Plaintiff Neil Basta is a deaf individual who communicates primarily in American Sign Language (“ASL”). His wife Courtney Basta is a hearing individual who was pregnant at the time of these events. Defendant Novant Health maintains a written policy for accommodating individuals with hearing impairments. The policy, which is available to the public on-line, provides:

We [Novant Health] believe that clear communication is one of the most important ingredients of providing outstanding care. If you or your family have special communication needs, we offer free interpreter services, which include: Foreign Language interpreters, Oral interpreters, TTY and other services for deaf or hard of hearing individuals. When you arrive at one of our Novant Health locations, if you or your family need assistance from an interpreter, let our staff know.

Doc. 12 at ¶ 10.

         Prior to June 2, 2017, Plaintiff pre-registered with Defendant's Huntersville Medical Center and requested that a qualified in-person ASL interpreter be provided to him upon his and his wife's arrival at the medical center. A member of Defendants' staff assured Plaintiff that an ASL interpreter would be provided once he notified Defendants that he and his wife were en route to the Medical Center.

         On June 2, 2017, Plaintiff contacted Defendants using Video Relay Services (VRS) and advised that his wife was having contractions and they were en route to the Medical Center. He requested an interpreter and a staff member advised that a request would be placed once they arrived. Once at the Medical Center, Plaintiff asked Defendants' staff several times for an interpreter and was told they were working on it. Plaintiff was provided with a Video Remote Interpreter (VRI) after he and his wife were brought to the delivery room. The VRI was not working properly. It was blurry, choppy and did not have a clear enough picture to provide effective communication for Plaintiff. A second VRI was brought into the room but it also malfunctioned.

         Since the VRIs malfunctioned and no interpreter was provided, Plaintiff was not given the opportunity to ask questions about his wife's treatment and was unaware if she had any medical concerns. Throughout his wife's hospitalization, Plaintiff made repeated requests for an interpreter, but apart from the two VRI machines nothing was made available. On June 4, 2017, staff gave discharge instructions without an interpreter present. Plaintiff states that he “wishes to seek care in Defendants' facilities again, but has been deterred by the discrimination he has faced and expects to face in the future.” Doc. 12 at p. 9.

         Plaintiff filed his original Complaint in this Court on February 7, 2019. He filed an Amended Complaint on April 12, 2019. He alleges violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“RA”), and Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 (“ACA”). Plaintiff seeks prospective injunctive relief under the ADA and monetary damages under the RA and the ACA.

         Defendants filed the instant Motion to Dismiss on May 8, 2019 seeking dismissal of all three counts of Plaintiff's Amended Complaint. They argue that Plaintiff fails to allege imminent harm to support a claim for injunctive relief under the ADA, that he fails to sufficiently plead intentional discrimination as required to state a claim under the RA, and that he fails to allege that he himself was seeking medical treatment as required to support a cause of action under the ACA.

         II. STAND ...

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