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Cutting v. Down East Orthopedic Associates P.A.

United States District Court, D. Maine

May 2, 2019




         In this 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.)

         Following a review of the summary judgment record, and after consideration of the parties' arguments, the Court grants Defendant's motion for summary judgment.

         Factual Background

         A. Plaintiff's Disability

         Plaintiff 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.)

         In June 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 ¶ 2.)

         B. The Medical Findings at the Initial Appointment

         On June 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.)

         Dr. 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. ¶ 16.)

         C. Doctor McGuire's Conduct During the Initial Appointment

         At the 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, 34.)

         Dr. 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.)

         D. Appointments with Other Providers

         On June 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. ¶ 19.)

         In 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.)

         On 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.)

         On 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.)

         On 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 ...

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