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Cutting v. Down East Orthopedic Associates P.A.

United States District Court, D. Maine

September 30, 2017




         A disabled former patient brings this action against a medical provider, alleging disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12182 et seq. (“ADA”), and the Maine Human Rights Act, 5 M.R.S. §§ 4571 et seq. (“MHRA”). The former patient suffers from Tourette's syndrome, a disabling condition that causes her to experience involuntary motor tics. The motor tics result in involuntary arm movements. The former patient sought treatment from the medical provider for a shoulder condition. She alleges that, in the course of their interactions, the medical provider humiliated her and ultimately refused to treat her for the shoulder problems.

         The medical provider moves to dismiss the ADA claim asserting that the former patient lacks standing and that a disagreement with a surgeon about the proper surgical procedure cannot be the basis for an ADA claim.[1] The medical provider moves to dismiss the MHRA claim on statute of limitations grounds. The Court denies the defendant's motion to dismiss. (ECF No. 7).

         I. BACKGROUND

         A. Procedural History

         On November 29, 2016, Carol Cutting filed a complaint against Down East Orthopedic Associates, P.A. (“Down East”). Compl. (ECF No. 1). The Complaint contains two counts of unlawful disability discrimination: Count I-violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12182 et seq.; and Count II-violation of the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4571 et seq. Id. at 5-6. On February 10, 2017, Down East filed a motion to dismiss the complaint under Rule 12(b)(1) and 12(b)(6). Def.'s Mot. to Dismiss Pl.'s Compl. (ECF No. 7) (Def.'s Mot.). Ms. Cutting responded on March 3, 2017. Pl.'s Opp'n To Def.'s Mot. To Dismiss (ECF No. 9) (Pl.'s Opp'n). Down East replied to Ms. Cutting's response on March 17, 2017. Def.'s Reply in Supp. of Mot. to Dismiss (ECF No. 10) (Def.'s Reply).

         B. The Alleged Facts[2]

         1. The Parties

         Carol Cutting is a resident of Bangor, Maine. Compl. ¶ 3. Ms. Cutting has suffered from Tourette's syndrome for many years; this condition causes her to have repeated vocal and motor tics, including occasional arm movements. Id. ¶ 11. Based on the substantial limitations in major life activities caused by her Tourette's syndrome, Ms. Cutting is a qualified individual with a disability within the meaning of the ADA and the MHRA. Id. ¶ 12. At all times relevant to the Complaint, she was a patient of Down East. Id. ¶ 5.

         Down East Orthopedic Associates, P.A. is a duly authorized Maine business corporation that operates a private medical practice in Bangor. Id. ¶ 4. D. Thompson McGuire, M.D. (“Dr. McGuire”) is an orthopedic surgeon licensed to practice medicine in Maine and an employee of Down East. Id. ¶ 6.

         2. Office Visit

         In 2013, Ms. Cutting's primary care physician referred her to Dr. McGuire for right-shoulder pain she had been feeling since experiencing a fall at home in 2011. Id. ¶¶ 9-10. Physical therapy and other conservative forms of pain management had not resolved the pain. Id. ¶ 10. On June 20, 2013, Ms. Cutting had her first and only office visit with Dr. McGuire. Id. ¶ 15. Down East is a place of public accommodation within the meaning of Title III of the ADA. Id. ¶ 14. At that office visit, Dr. McGuire diagnosed Ms. Cutting with acromioclavicular arthritis based on her constant shoulder pain, as well as possible rotator cuff tendinitis and impingement, and he devised a treatment plan consisting of right shoulder arthroscopy, subacromial decompression, and open distal clavicle excision, to be performed on November 13, 2013. Id. ¶¶ 15-16.

         During the office visit, Dr. McGuire noticed Ms. Cutting's vocal and motor tics and treated her in a disrespectful, rude, and insulting manner. Id. ¶ 17. Dr. McGuire moved his seat across the room to create significant distance between himself and Ms. Cutting, stating, “I don't want you to hit me, ” in reference to her tics. Id. ¶ 18. The statement was humiliating and demeaning to Ms. Cutting, as her unavoidable tics are non-violent. Id. ¶ 19. Down East regarded Ms. Cutting as disabled based on the conduct of its employee, Dr. McGuire. Id. ¶ 13. Dr. McGuire never told Ms. Cutting prior to the time he performed surgery on her that her Tourette's syndrome would have an impact on his approach to surgery. Id. ¶ 20.

         3. Surgery

         On November 13, 2013, Dr. McGuire performed arthroscopic surgery on Ms. Cutting's right shoulder. Id. During the surgery, Dr. McGuire discovered that Ms. Cutting had a full-thickness rotator cuff tear with two centimeters of retraction. Id. ¶ 21. Dr. McGuire performed debridement of the area, but he did not repair Ms. Cutting's rotator cuff tear. Id. ¶ 22. Dr. McGuire and/or his staff later explained to Ms. Cutting that her shoulder could not be repaired during surgery because she would “just tear it again” when she woke up from surgery, in reference to moving her shoulder during uncontrollable motor tics. Id. ¶ 23.

         4. Down East's Failure to Make Modification

         Down East, as a place of public accommodation, is obligated to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Id. ¶ 25. The modification that Down East should have provided to Ms. Cutting was to repair the rotator cuff tear during the surgery, and to provide her a shoulder immobilizer to address any concern of involuntary movement of her shoulder. Id. ¶ 26. This modification for Ms. Cutting's disability was easily achievable and should have been obvious to Dr. McGuire. Id. ¶ 27. Providing such modification to Ms. Cutting would not have imposed an undue hardship upon Down East. Id. ¶ 28.

         5. Continued Pain and Later Assessment by other Medical Provider

         Ms. Cutting continued to suffer from daily pain and exacerbation of her rotator cuff tear for a year after Dr. McGuire refused to repair her shoulder. Id. ¶ 29. Plaintiff consulted with another orthopedic surgeon, Jessica Aronowitz, M.D., who ordered an MRI that was performed on November 23, 2014. Id. ¶ 30. Dr. Aronowitz reviewed the MRI with Ms. Cutting during a December 4, 2014 office visit in which she noted a full-thickness rotator cuff tear and recommended another surgery to repair the tear. Id. ¶¶ 31-32. To address Ms. Cutting's Tourette's syndrome, Dr. Aronowitz recommended a shoulder immobilizer following surgery to make sure Ms. Cutting did not move her shoulder during an involuntary motor tic. Id. ¶ 33. At this December 4, 2014 appointment, upon learning that immobilization of her shoulder was readily achievable, Ms. Cutting developed reasonable cause to believe that Dr. McGuire had discriminated against her on the basis of her disability, and denied her reasonable medical care. Id. ¶ 34. As of December 4, 2014, Ms. Cutting realized that Dr. McGuire's failure perform the surgery in November of 2013, followed by immobilization of her shoulder, amounted to a failure to provide her with a necessary modification for her disability. Id. ¶ 35.


         Rule 12(b)(6) requires dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations[.]'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         The First Circuit explained that “[t]he plausibility inquiry necessitates a two-step pavane.” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citing Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)). “First, the court must distinguish ‘the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). “Second, the court must determine whether the factual allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678)).


         A. ADA Claim

         In enacting the ADA, Congress provided a broad mandate to eliminate disability discrimination nationwide. PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001). In doing so, Congress found that “[d]iscrimination against individuals with disabilities persists in such critical areas as . . . health services” among others. 42 U.S.C. § 12101(a)(5). Title III of the Act forbids discrimination against disabled individuals in public accommodations, including a “ . . . professional office of a health care provider, hospital, or other service establishment.” Id. §§ 12181(7)(F), 12182. “It sends a bluntly worded message to those establishments that fall within its purview: you may not discriminate against an individual in the full and equal access to goods and services on the basis of a disability.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 303 (1st Cir. 2003). Section 12182(a) of the Act defines discrimination to include “failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(a).

         Ms. Cutting alleges that, in refusing to perform the necessary repair of her rotator cuff during the surgery because of her Tourette's syndrome, Dr. McGuire engaged in unlawful disability discrimination against her in violation of the ADA. Compl. ¶ 24. Specifically, Ms. Cutting asserts that Dr. McGuire's conduct prevented her from the full and equal enjoyment of and access to services in a place of public accommodation. Id. ¶ 38. She points out that being a place of public accommodation, Down East is required under the statute to make reasonable modifications or accommodations to individuals, such as herself, with disabilities. Id. ΒΆ 25. Ms. Cutting asserts that the modification Down East was required and failed to make was ...

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