United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
C. NIVISON U.S. MAGISTRATE JUDGE
action, Plaintiff alleges Defendant discriminated against
her, in violation of the Americans with Disabilities Act and
the Maine Human Rights Act, based on her Tourette's
syndrome. (Complaint, ECF No. 1.) The matter is before the
Court on Defendant's motion for summary judgment.
(Motion, ECF No. 35.)
a review of the summary judgment record, and after
consideration of the parties' arguments, the Court grants
Defendant's motion for summary judgment.
suffers from Tourette's syndrome, which causes her to
have repeated involuntary body movements, including
repetitive shoulder flexion of the right arm in an outward
motion, which medical records have described as resembling a
punching motion. (DSMF ¶ 1, ECF No. 36.) Plaintiff
characterizes her tics as more of a “pointing”
motion, and describes them as not entirely
“involuntary, ” but more like “strong
compulsions.” (PSAMF ¶¶ 20 - 24, ECF No. 43.)
The frequency and severity of Plaintiff's tics depend on
certain factors, including her stress level and whether she
is comfortable in her surroundings. (Id. ¶ 28.)
2013, Plaintiff was referred to D. Thompson McGuire, M.D., an
orthopedic surgeon employed by Defendant, for right shoulder
pain that had been persistent since she fell in 2011. (DSMF
The Medical Findings at the Initial Appointment
20, 2013, Dr. McGuire examined Plaintiff's right
shoulder. (Id. ¶ 4.) The examination and
testing revealed that Plaintiff had full range of motion of
the right shoulder, motor strength of 5/5, pain with cross
body abduction, tenderness localized to her acromioclavicular
joint, and impingement sign testing was equivocal.
(Id. ¶ 5.) X-rays of the right shoulder, which
Dr. McGuire reviewed with Plaintiff, revealed joint narrowing
and mild arthritic changes at the acromioclavicular joint.
(Id. ¶¶ 7, 8.) An earlier MRI showed
supraspinatus tendinopathy, a partial rotator cuff tear, but
no full thickness rotator cuff tear. (Id.
¶¶ 9, 10; PRDSMF ¶ 10, ECF No. 43.) Dr.
McGuire documented that physical therapy did not improve
Plaintiff's symptoms and that Plaintiff had undergone
unsuccessful trials of Lidoderm, medical marijuana, and
injections. (DSMF ¶ 11.) Dr. McGuire also noted that
Plaintiff had Tourette's syndrome with
“uncontrollable, intense, involuntary motions of right
upper extremity frequently.” (Id. ¶ 12.)
McGuire diagnosed Plaintiff as suffering from
acromioclavicular arthritis with possible rotator cuff
tendonitis and impingement, and recommended surgery.
(Id. ¶¶ 6, 13, 14.) Plaintiff expressed a
desire for the surgery, but she wished to delay the surgery
until October 2013 due to her summer plans. (Id.
Doctor McGuire's Conduct During the Initial
initial appointment, after Plaintiff told Dr. McGuire that
she had Tourette's, according to Plaintiff, Dr. McGuire
moved across the exam room, and stated, “I don't
want you to hit me.” (PSAMF ¶ 3.) Plaintiff
explained to Dr. McGuire that her Tourette's would not
cause her to hit him; she said, “I've never hit
anybody.” (PSAMF ¶¶ 9 - 11.) Plaintiff
asserts Dr. McGuire insisted on remaining across the room
from her. (Id.) Plaintiff alleges she felt
humiliated and miserable. (Id. ¶¶ 2, 11,
McGuire does not recall where he sat during the exam.
(Id. ¶ 7.) Dr. McGuire's Physician's
Assistant, Danielle St. Onge, believes she was in the room
during the appointment. (Id. ¶ 5.) PA St. Onge
said she did not observe Dr. McGuire acting rude or
unprofessional, but she does not remember whether Dr. McGuire
made the statements Plaintiff describes. (Id. ¶
5; DRPSAMF ¶ 5, ECF No. 47.) Ann Covey, PT, who
subsequently spoke with Plaintiff, concluded that Plaintiff
did not consider her interaction with Dr. McGuire during the
appointment to be positive. (Id. ¶ 12.)
Appointments with Other Providers
25, 2013, Plaintiff was seen by Alisa Roberts, D.O., on a
referral for injection therapy to address her right shoulder
pain prior to surgery. (DSMF ¶ 17.) Dr. Roberts wrote:
“Patient has a history of Tourette's syndrome and
one of her tics is a repetitive shoulder flexion [on] the
right side (in a punching motion) - this makes pain worse and
she feels that this displaces her shoulder anteriorly,
” and that Plaintiff had a fair amount of tendinitis
and muscle strain from her initial trauma (in 2011) and from
continued uncontrolled repetitive upper extremity movements.
(Id. ¶ 18.) Dr. Roberts performed a
musculoskeletal examination and noted: “rotator cuff
muscles intact. Motor strength is full.” (Id.
September 2013, Plaintiff called Defendant to cancel her
surgery. (Id. ¶ 20.) On October 9, 2013,
Plaintiff returned to see Dr. Roberts for another injection.
Dr. Roberts reported that Plaintiff's “shoulder
chronically subluxes, made worse from punching motion that is
uncontrolled due to her Tourette's syndrome.”
(Id. ¶ 21.)
October 29, 2013, Plaintiff was seen by Gregory Unruh, D.O.,
at St. Joseph Family Medicine; Plaintiff told him that she
was “worried about how she will keep the shoulder from
moving with her Tourette's.” (Id. ¶
22.) Plaintiff had “great concerns” that she
would be unable to remain still after the surgery due to her
tics and that she might reinjure herself post-operatively.
(Id. ¶ 23.)
November 4, 2013, PT Covey reported to Defendant that
Plaintiff was “very concerned about having the surgery
because her Tourette's are so bad that she might
re-injure herself.” (Id. ¶ 24.) PA St.
Onge told PT Covey that there would be no limitation on
Plaintiff's right shoulder post-operatively; Plaintiff
would be provided with a sling for comfort, but not for
immobility. (Id. ¶ 25.) PT Covey shared this
information with Plaintiff. (Id. ¶ 26.)
November 7, 2013, Plaintiff returned to Defendant's
office for a pre-operative appointment with PA St. Onge. At
that time, Plaintiff reported that she had decided to proceed
with right shoulder surgery. (Id. ¶ 27.) PA St.
Onge recorded that she discussed the planned procedure with
Plaintiff, including the benefits and risks of the procedure,
which risks included incomplete relief of pain and symptoms,
failure of repair, and need for additional surgery.
(Id. ¶ 28.) PA St. Onge told Plaintiff that she
would not have any restrictions following the surgery and
that she would be in a sling for comfort, which could be
removed. (Id. ¶ 29.) Plaintiff also signed an
informed consent that included the following language:
My physician has discussed with me the details of my medical
condition, the nature of the proposed procedure and the
benefits to be reasonably expected compared with alternative
treatment approaches. . . .
No Guarantee: My physician has represented to me that no
guarantee has been made to me concerning the results of ...