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McCullum v. Orlando Reg'l Healthcare Sys., Inc.

United States Court of Appeals, Eleventh Circuit

October 3, 2014

DOROTHY MCCULLUM, individually and as parent of DF & TF, JIMMY FRAZIER, individually and as parent of DF & TF, Plaintiffs-Appellants,
ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., d.b.a. Arnold Palmer Hospital for Children, NORTH BREVARD COUNTY HOSPITAL DISTRICT, d.b.a. Parrish Medical Center, Defendants-Appellees

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11-cv-01387-GAP-GJK.

For DOROTHY MCCULLUM, individually and as parent of DF & TF, JIMMY FRAZIER, individually and as parent of DF & TF, Plaintiffs - Appellants: Matthew W. Dietz, Disability Independence Group, Miami, FL.

For Orlando Regional Healthcare System, Inc., d.b.a.: Arnold Palmer Hospital for Children, Defendant - Appellee: Bradley Paul Blystone, Andrea L. Diederich, Marshall Dennehey Warner Coleman & Goggin, Orlando, FL.

For North Brevard County Hospital District, d.b.a.: Parrish Medical Center, Defendant - Appellee: Saqib Ishaq, Deborah Lynn La Fleur, GrayRobinson, PA, Orlando, FL; Kristie Hatcher-Bolin, GrayRobinson, PA, Lakeland, FL.

Before ED CARNES, Chief Judge, DUBINA and SILER,[*] Circuit Judges.


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ED CARNES, Chief Judge:

It's often said that the path to perdition is paved with good intentions. It might also be said that sometimes the road to the courthouse is littered with the efforts of well-meaning people who never thought they'd be taking the trip. This is one of those kind of cases.

When he was fourteen years old, D.F. was diagnosed with ulcerative colitis, a serious disease that affects the colon. He was hospitalized at Parrish Medical Center for twenty days and the Arnold Palmer Hospital for Children for eleven days to receive treatment and have his colon removed. At least one of D.F.'s parents remained by his bedside, as any loving parent would, at all times during those two hospital stays.

Because D.F. is deaf and mute, the staff at both hospitals took steps to ensure that they were able to effectively communicate with him. They used written notes and visual aids, and they also relied on D.F.'s parents and deaf sister, who interpreted for D.F. using sign language. The staff believed that they had taken appropriate steps to communicate effectively with the child while he was hospitalized, but they did not provide him with a professionally trained sign language interpreter nor did they ask him or his parents whether they wanted one to be provided. The failure to do so led to this lawsuit.

D.F.'s parents brought this disability discrimination lawsuit individually and on behalf of D.F. and his deaf sister. The district court dismissed the individual claims asserted by D.F.'s parents and sister for lack of standing, and it granted summary judgment to the defendants on the claims that D.F.'s parents brought on his behalf seeking damages and injunctive relief. This is the plaintiffs' appeal.



On March 19, 2009, D.F. began experiencing severe abdominal pain and his mother, Dorothy McCullum, took him to the emergency room at Parrish Medical Center (Parrish). As part of the intake process, the ER staff noted that D.F. was deaf. When the ER doctor came to examine D.F., he asked him how he was feeling. D.F. did not respond to the question, and McCullum explained that her son was deaf. The doctor asked McCullum if she knew sign language, and she replied that she could " do some signing." The doctor then asked her about D.F.'s symptoms, and she told him that he had been vomiting and having diarrhea. After examining D.F.'s stomach, the doctor told McCullum that her son needed to have a CAT scan so they could determine what was wrong. D.F. was formally admitted to the hospital when the CAT scan revealed that he had blood in his colon. He remained at Parrish until April 8, 2009, and during that time he underwent a variety of tests and had a colonoscopy to determine the source of his ailment. At least one of his parents was with him throughout his entire stay.

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Since 1996, Parrish has had a written policy in place titled " Communication with Impaired or Language Barrier Patients." That policy states that the hospital " will provide for appropriate communication with patients who experience communication barriers," which may include providing interpreters for hearing-impaired patients. It further provides that the hospital staff will communicate with a hearing-impaired patient by using the patient's preferred method of communication. During D.F.'s stay at Parrish, the hospital's staff relied on a variety of methods to facilitate communication with him. One nurse who had taken several college classes in sign language communicated with D.F. by signing. Other staff members used written notes to communicate with D.F. When staff members consulted with D.F. and his parents about his treatment, they often used printed handouts to enhance communication and understanding. Parrish doctors and nurses also communicated with the help of McCullum (D.F.'s mother), Jimmy Frazier (D.F.'s father), and T.F. (D.F.'s deaf sister),[1] all of whom interpreted for D.F. using " home signs" (made up sign language), American Sign Language (ASL) finger spelling, and their otherwise limited knowledge of ASL.

While D.F. was a patient at Parrish, nobody at the hospital directly told him or his parents that the hospital could provide a sign language interpreter. The parents did not know that they could request an interpreter, thinking instead that they were obligated to help their son communicate. As a result, neither D.F. nor his parents ever requested an interpreter. D.F. claims that he did not fully understand what was happening to him while he was at Parrish, but there is no evidence that he or his parents informed the Parrish doctors or nurses that some of their statements were being lost in translation. To the contrary, D.F.'s attending physician believed that he was effectively communicating with D.F. through the mother's translations. D.F.'s medical records also indicate that D.F. " nod[ded] understanding" or " verbalize[d] understanding" when the Parrish nurses communicated with him about his treatment.


On April 8, 2009, after D.F.'s condition failed to improve, he was transferred to the pediatric critical care unit at the Arnold Palmer Hospital for Children (Arnold Palmer) in Orlando. Arnold Palmer is a private hospital that offers special treatment programs for children. Similar to Parrish, Arnold Palmer has a written policy, in effect since 1987, addressing accommodations that will be made for patients with communication barriers. That policy provides that a qualified interpreter will be offered to every patient who needs communication support, though for children it allows the patient's adult family members or friends to interpret if they are comfortable doing so and understand the non-clinical information to be interpreted. The hospital publicizes its policy by posting signs throughout the hospital informing patients that interpretation services are available.

When D.F. arrived at Arnold Palmer, he and his father met with Dr. Carey McCade to discuss D.F.'s treatment plan. During that discussion the father interpreted for his son. The doctors at Arnold Palmer determined that surgery would be necessary, and the surgeon who would be performing

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the operation met with D.F.'s family the day after D.F. was admitted to the hospital to discuss the need for the procedure and the associated risks. Kimberly Burbage, a Child Life Specialist,[2] met with D.F. and his parents to prepare them for the operation and educate them about the procedure. During that consultation, Burbage relied in part on the parents to help interpret for D.F. But she also used other communication aids to help D.F. understand what he would be going through. After noting that D.F.'s learning preferences included " pictorial[s]" and " skill demonstration," Burbage used pictures of the digestive system and a preoperative teaching book to show D.F. what the surgeon would be doing.[3] She also provided D.F. with " diagnosis education using written materials from" and gave him an ostomy doll. ...

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