Williams v. Central Vermont Med. Ctr., Inc., No. 206-4-14 Wncv (Tomasi, J., June 10, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                              CIVIL DIVISION
Washington Unit                                                                             Docket No. 206-4-14 Wncv

                                                                          │
Xenia Williams,                                                           │
 Plaintiff,                                                               │
                                                                          │
  v.                                                                      │
                                                                          │
Central Vermont Medical Center, Inc.,                                     │
 Defendant.                                                               │
                                                                          │

               Opinion and Order on Defendant’s Motion for Summary Judgment

           This case arises out of a primary care physician’s failed attempt at

persuading a patient on long-term, high-dose opioids to sign a Patient’s Controlled

Substance Agreement Informed Consent form as a condition to continued opioid

treatment. The patient, Plaintiff Xenia Williams, was offended by the content of the

form and took the position that she should be able to use her own self-styled

agreement as an accommodation for her disability. The physician, Joseph Brock,

M.D., interpreted Ms. Williams comments as a threat to sue him and allegedly

terminated their doctor–patient relationship.

           Ms. Williams now seeks damages from Defendant Central Vermont Medical

Center, Inc. (CVMC), Dr. Brock’s employer, pursuant to Vermont’s Public

Accommodations Act (PAA), 9 V.S.A. §§ 4500–4507, for discrimination (not making

a reasonable modification in policies) and retaliation (termination of the doctor–

patient relationship and CVMC’s response to it), and for negligence due to rudeness
and failure to follow certain guidelines regarding her care.1 CVMC has filed a

motion for summary judgment on all four claims.

         1.    Summary Judgment Standard

         Summary judgment is appropriate if the evidence in the record, referred to in

the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine

issue as to any material fact and that any party is entitled to a judgment as a

matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994).

The Court derives the undisputed facts from the parties’ statements of fact and the

supporting documents. Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72,

¶ 29, 175 Vt. 413, 427. A party opposing summary judgment may not simply rely on

allegations in the pleadings to establish a genuine issue of material fact. Instead, it

must come forward with deposition excerpts, affidavits, or similar evidence to

establish such a dispute. Murray v. White, 155 Vt. 621, 628 (1991).

         2.    The Undisputed Facts

         The basic material facts are undisputed for summary judgment purposes.

Ms. Williams has been prescribed very high-dose opioids for many years for pain

relief related to an arthritic condition.2 In 2009, the doctor who then was

prescribing those opioids was leaving the area, the other physicians in the doctor’s



1Initially, Ms. Williams sued Dr. Brock as well. She withdrew her claims against
him when she learned in the course of discovery that he was an employee of CVMC.
In the complaint, she proceeded under both the Americans with Disabilities Act
(ADA) and Vermont’s PAA. She withdrew her ADA claims in the course of
summary judgment proceedings.

2   The specific opioids prescribed to Ms. Williams have varied over the years.
                                            2
practice group would not continue prescribing opioids to Ms. Williams, and her care

was transferred to Dr. Brock. He was one of the few remaining doctors in Central

Vermont at the time who was willing to provide this sort of treatment on a long-

term basis. Dr. Brock tapered the level of opioids Ms. Williams was taking down

somewhat and otherwise was willing to continue prescribing them to her and did for

some time. At no time did he come to believe that she was exhibiting behaviors

indicative of abuse.

      Dr. Brock’s practice group, or CVMC generally, required patients on long-

term opioid treatment, and doctors prescribing it, to sign a form dubbed: Patient’s

Controlled Substance Agreement Informed Consent (CSA). The CSA is a “form”

agreement developed by CVMC personnel (not Dr. Brock) that plainly is designed to

protect patient and public safety in light of the now-infamous risks presented by

opioids, particularly long-term prescriptions for them. Requiring patients to

execute controlled substance agreements as a condition to long-term opioid

treatment is a “best practice” in the medical profession. Despite this, Dr. Brock did

not initially have one in place for Ms. Williams.

      At one point, Ms. Williams needed a new (or renewed) prescription, but Dr.

Brock was out of town. She was unable to get it from the other physicians in Dr.

Brock’s practice group. This appears to have occurred for several reasons, including

the lack of having a signed CSA from Ms. Williams. Dr. Brock resolved to have Ms.

Williams execute the CSA.




                                          3
      At a subsequent appointment, he asked her to sign the form. She would not

execute the form at that appointment because she wanted more time to look it over.

Dr. Brock gave her a copy to take home, evidently with the understanding that she

would review it at her leisure and mail it back in signed, which she never did.

      Ms. Williams found the language of the CSA offensive because, in her view, it

was framed as though she were a drug addict or criminal, and some of its terms

were irrelevant (such as the provision requiring a patient to notify the doctor of a

pregnancy). At her next appointment, she presented Dr. Brock with a five-page

handwritten document entitled, “Point by Point Response to Controlled Substance

Agreement.” It is a list of her subjective reasons for disagreeing with provisions of

the CSA and finding it offensive.

      She also produced her own handwritten statement, entitled, “Xenia Williams

Controlled Substance Agreement,” that she wanted to use instead of the CSA. In

the statement, she explains that she has post-traumatic stress disorder (PTSD)

caused by sexual abuse and incest and being required to sign the “draconian” CSA

at the insistence of someone who claims to have her best interests in mind is

“triggering and retraumatizing.” The statement ends with a request to use her

statement instead of the CSA as an accommodation under the ADA.

      While Ms. Williams’ statement includes an aspirational promise to be

responsible with opioids, it does not include any provisions analogous to those of the

CSA, which would help protect patient and public safety if some kind of problem

were to develop.



                                           4
      As Ms. Williams and Dr. Brock discussed this matter, things did not go well.

While there is some dispute about exactly who said what, it is clear that Ms.

Williams was claiming the right to use her own statement and had little interest in

signing the CSA, which she never did. Dr. Brock was willing to make some

modifications to the CSA, but he was not going to accept her statement as an

effective substitute for it. Ultimately, he was unable to persuade her to sign the

CSA. The appointment ended when Ms. Williams said something (precisely what is

disputed) about the ADA. Dr. Brock interpreted whatever she said to mean that

she was going to sue him. He said that this would be an untenable breach of trust

between doctor and patient. He then gave her a 30-day tapering prescription for

opioids, agreed to see her for any emergencies during those 30 days, and otherwise

terminated their relationship.3

      Following this, Ms. Williams filed an administrative complaint about Dr.

Brock with CVMC and asked it to do what she characterizes as an “ethics consult.”

CVMC reported that it did not find that Dr. Brock did anything wrong and took no

further action.

      After the relationship with Dr. Brock ended, Ms. Williams was unable to find

a doctor who would prescribe long-term opioids for her. Eventually, she became a



3There is also a lurking dispute of fact concerning this point. Dr. Brock insists
that, after she refused to sign the CSA, he told Ms. Williams that he could not
prescribe opiates to her but that he could continue to be her primary care doctor,
and only later terminated her from his practice. Ms. Williams insists that he
immediately terminated her from all aspects of his practice. For purposes of the
present motion, the Court must assume that Dr. Brock terminated her from all
aspects of his practice.
                                          5
patient at Dartmouth Hitchcock Medical Center’s Pain Clinic. She signed its

version of a controlled substances agreement and began receiving opioids again.

She violated the agreement and lost access to opioids, however. At some point later,

she became a patient at Gifford Medical Center. She signed its version of a

controlled substances agreement and has been receiving opioid treatment through it

ever since.

      3.      The Claims

      Ms. Williams asserts, in effect, that something about her PTSD precluded her

from signing the CVMC CSA (she does not explain how she was able to sign the

Dartmouth and Gifford CSAs). She claims that Dr. Brock should have accepted her

handwritten statement as a “reasonable accommodation” or should have further

engaged in the “interactive process” with her to see if she could be persuaded to sign

the CSA. She characterizes the episode in which Dr. Brock tried to persuade her to

sign the CSA as discrimination in a place of public accommodation in violation of

the PAA. She claims that his termination of their relationship and CVMC’s failure

to take any action against Dr. Brock were incidents of retaliation against her for

having asserting her rights. She further claims that Dr. Brock, in their exchanges

about the CSA, was disrespectful, rude, and did not follow professional standards.

That conduct, she asserts, amounts to negligence.

      4.      Discrimination

      Ms. Williams alleges that she has PTSD caused by childhood sexual abuse. It

is not clear that she actually has ever been diagnosed with PTSD, but CVMC



                                          6
accepts for summary judgment purposes that she has PTSD and that her condition

is a disability. Neither party, however, has focused on what major life activity Ms.

Williams’ PTSD limits and exactly how any such limitation relates to the events of

this case.4 See 9 V.S.A. § 4501(2)(A). Ms. Williams generally claims that she has

sensitivities about matters of trust and somehow this caused her to resist signing

the CSA, even though it was a form agreement intended for all patients receiving

opioids on a long-term basis. The parties did not flesh out this aspect of Ms.

Williams’ claim, however, so the Court will not dwell on it.

      The PAA bars a public accommodation from denying the benefits of its




4 For instance, Ms. Williams objected to the provision of the CSA that alerted the
patient to the need to notify the doctor of any pregnancy. The provision was
irrelevant in her case because she was unable to become pregnant. Obviously, the
provision would be irrelevant to men and all women who are unable to become
pregnant. Like the other provisions of the CSA, this one is not there because
anyone suspected that Ms. Williams or anyone else who is unable to become
pregnant might somehow become subject to that condition. It is there for those
patients who are able to become pregnant. It is wholly unclear what limitation it is
that Ms. Williams’ PTSD causes that, in turn, made this provision controversial to
her. The point of providing reasonable accommodations (Title I) or modifications to
policies (Title III) is to help the disabled person overcome the limitation caused by
the disability. See, e.g., Gammage v. West Jasper Sch. Bd. of Educ., 179 F.3d 952,
955 (5th Cir. 1999) (“[T]he ADA does not require an employer to assume that an
employee with a disability suffers from a limitation; as a result, it is incumbent
upon the ADA plaintiff to assert not only a disability, but also any limitation
resulting therefrom.”); accord Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008);
Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir. 2003) (“Put another way,
there must be a causal connection between the major life activity that is limited and
the accommodation sought.); Felix v. N.Y. City Transport Authority, 324 F.3d 102,
107 (2d Cir. 2003). Without spelling out the limitation at issue, determining
whether an accommodation or policy modification is reasonable and necessary in a
case such as this can be a murky endeavor. The disability, at least when the
limitations it causes are not obvious, alone is insufficient to entitle one to the
accommodation or modification.
                                          7
services to persons with disabilities. 9 V.S.A. § 4502(c). This encompasses the

obligation to make “reasonable modifications” to policies and procedures when doing

so does not “fundamentally alter” the nature of the goods or services offered. Id.

§ 4502(c)(5). There is no dispute that Dr. Brock’s office is a place of public

accommodation and that the services of a physician are subject to these provisions.

      The relevant provisions of the PAA generally are construed to be consistent

with the analogous provisions of the ADA (except with regard to remedy). See 9

V.S.A. § 4500(a). The analogous provisions of the ADA are located at 42 U.S.C.

§§ 12181–12189 (Title III). Similar to the PAA, the ADA bars a public

accommodation from denying a disabled person the opportunity to participate in its

services. See 42 U.S.C.A. § 12182(b)(1)(A)(i). This may require it “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.A. § 12182(b)(2)(A)(ii) (emphasis added).

      At the outset, the Court notes that Ms. Williams’ attempt to characterize her

claim as a failure to provide a “reasonable accommodation” or a failure to engage

adequately in an “interactive process” is not helpful. “Reasonable accommodation”

and “interactive process” are terms of art peculiar to circumstances involving

employment relationships (Title I of the ADA). While there clearly is conceptual



                                            8
overlap between a reasonable accommodation (Title I) and a modification to a policy

(Title III), and a public accommodation may need to engage in some back-and-forth

to know whether and how to modify its policies, these concepts are not necessarily

co-extensive. Ms. Williams has produced no authority to the effect that they should

be treated as such in a case like this, where access to a service is the issue rather

than the fairness of an employment relationship.

      In any event, the Court perceives no viable discrimination claim under the

PAA and, by analogy, Title III of the ADA. The opportunity for Ms. Williams to

receive medical services from Dr. Brock not only was available to her, they already

had an ongoing doctor–patient relationship. There was no denial of any opportunity

to participate in the physician services provided at Dr. Brock’s office. Ms. Williams

has come forward with no authority, and the Court has found none, to the effect

that a patient in an ongoing physician–patient relationship, by invoking her

disability rights, has any entitlement to determine the way the physician exercises

his professional judgment on issues of a medical nature. Cf. Webster Bank v.

Oakley, 830 A.2d 139, 161 (Conn. 2003) (“the plaintiff is not required to modify its

default and foreclosure policies and procedures pursuant to [Title III], because the

ADA operates to afford equal access to goods, services, facilities, privileges,

advantages and accommodations, but does not regulate the content of such goods,

services, facilities, privileges and advantages”). Again, this is not a case in which

Dr. Brock’s care was unavailable to Ms. Williams; she had access. Her contest

focuses on the content of that care. Cf. Nondiscrimination on the Basis of Disability



                                           9
by Public Accommodations and in Commercial Facilities, 56 FR 35544-01 (Title III

“would not require the inventory of goods provided by a public accommodation to be

altered to include goods with accessibility features. For example, [it] would not

require a bookstore to stock Brailled books or order Brailled books, if it does not do

so in the normal course of its business.”).

      If there were some way to characterize Ms. Williams’ refusal to sign the CSA

as a request to deviate from a policy due to some limitation created by Ms. Williams’

PTSD to make Dr. Brock’s continued services available, then her claim still fails.

There is no showing on this record that the deviation actually was necessary.

However much she disliked the CSA, she was able to sign the CSAs required by

other medical providers. See, e.g., Larsen v. Carnival Corp., 242 F. Supp. 2d 1333,

1344 (S.D. Fla. 2003) (no showing that carrying medical device onboard cruise ship

rather checking with porter was necessary for ADA purposes where traveler was

able to check it on other cruise and fully participate in activities).

      More importantly, the summary judgment record establishes that the CSA

was required as a matter of professional judgment by CVMC to regulate

prescriptions of opioids and protect patient and public safety. The only expert

evidence provided in this case proves that the CSA was, at minimum,5 a best



5 It appears that the bulk of the provisions of the CSA have now become mandatory
under Vermont law. See Vermont Department of Health, Rule Governing the
Prescribing of Opioids for Chronic Pain 5.3.1, 5.3.2, available at
http://healthvermont.gov/regs/documents/opioids_prescribing_for_chronic_pain_rule
.pdf. Rule 5.3.2 specifically requires the prescriber to obtain a signed
“Controlled Substance Treatment Agreement” that shall include other requirements
as determined by the prescriber, such as directly observed urine drug testing and
                                              10
practice of the profession. See Deposition of Gilbert J. Fanciullo 38, exh. J to

Defendant’s Motion for Summary Judgment (filed Jan 7, 2016). The record

establishes that exempting Ms. Williams from signing the form would have been a

fundamental alteration to the nature of the service being provided by CVMC. Ms.

Williams has provided no countervailing evidence on that point. The PAA and ADA

simply do not require a provider to make such alterations to what they believe are

proper professional standards. so long as that judgment is not being used to mask

discrimination. Cf. Class v. Towson University, 806 F.3d 236, 246–47 (4th Cir.

2015) (deferring to professional judgment of physician employing health-and-safety

requirement applicable to would-be student athlete as nondiscriminatory under

ADA); Falchenberg v. New York State Dep’t of Educ., 642 F. Supp. 2d 156, 165

(S.D.N.Y. 2008), aff’d, 338 F. App’x 11 (2d Cir. 2009) (“Where a program is designed

to ‘achieve definite pedagogical objectives,’ this Court will not ‘substitute its

judgment for that of experienced education administrators and professionals in

assessing whether the program does in fact meet its pedagogical objectives.’”

(quoting Maczaczyj v. New York, 956 F. Supp. 403, 409 (W.D.N.Y.1997))).

      Lastly, Ms. Williams also asserts that Dr. Brock did not engage in the

“interactive process” that applies to Title I claims. 29 C.F.R. § 1630.2. To the

extent the proposed changes would have required him to alter his fundamental

professional judgment, the Court does not believe negotiations were required.




pill counts to reasonably and timely inform the prescriber if the patient is misusing
the prescribed substance.”
                                           11
Further, as noted in the employment context, the failure of an employer to engage

in the interactive process cannot, by itself, establish liability. See State v. G.S.

Blodgett Co., 163 Vt. 175, 184 (1995); McBride v. BIC Consumer Products Mfg. Co.,

583 F.3d 92, 100 (2d Cir. 2009). In any event, while the record is not clear as to

what alterations he would agree to, it is undisputed that Dr. Brock was willing to

make some minor changes to the CSA for Ms. Williams. See Deposition of Xenia

Williams 90, 93, exh. C to Defendant’s Motion for Summary Judgment (filed Jan 7,

2016) (acknowledging Dr. Brock’s willingness to change the pregnancy notification

requirement and the requirement to bring unused medicine to appointments).

Accordingly, if interaction was required, it was completed.

      5.     Retaliation—Dr. Brock

      The failure of Ms. Williams’ discrimination claim does not dispose of the

retaliation claim arising out of Dr. Brock’s conduct. CVMC argues that ample

authority supports Dr. Brock’s position that a patient suing, or taking other similar

action against, her doctor creates a conflict of interest for both patient and doctor

that makes the ongoing relationship untenable. The problem with this argument on

summary judgment, however, is that it requires a finder of fact to draw the

proffered inference. Ms. Williams avers that Dr. Brock terminated their

relationship when Ms. Williams brought up the ADA. While a finder of fact

certainly could conclude that he did so precisely for the reasons he cites, it could

also infer that he did so because Ms. Williams was trying to press her disability

rights. The Court has no way to make a ruling on this issue as a matter of law on



                                           12
summary judgment. It must be sorted out at trial. Indeed, while it may be true

that a threat to sue would likely adversely impact the doctor–patient relationship, a

defendant cannot be permitted to use that natural circumstance as an artifice to

insulate illegal discrimination.

      CVMC next argues that the retaliation claim still should not go forward

because Ms. Williams cannot prove damages. This is so, it argues, because the only

harm Ms. Williams could have suffered was the loss of access to opioids for a time

and that was a function of her refusal to sign the CSA. She alleges, however, that

the episode distressed her greatly and caused her to need to seek out other opioid-

prescribing physicians. She provided additional evidence as to emotional and other

damages at the hearing on this motion. Whether there is a causal connection

between such claimed damages and the alleged retaliation is an issue that is not

raised in the instant motion. For present purposes, her sworn assertions of damage

stemming from the alleged retaliation is sufficient to defeat the motion for summary

judgment.

      6.     Retaliation—CVMC

      Ms. Williams claims that the retaliatory actions against her continued when

she filed an administrative complaint with CVMC, and it took no action against Dr.

Brock. Ms. Williams’ contact with CVMC administrators in this regard is not well

developed in the factual record, and her claim is not well addressed in briefing. It is

clear that she filed some sort of complaint, and it is equally clear that CVMC

undertook some kind of investigation in response, found no wrongdoing, and took no



                                          13
further action. That is all. As a matter of law, these facts do not permit any

reasonable inference of retaliation.

      7.     Negligence

      Ms. Williams’ negligence claim also is not well developed in the factual record

or the briefing. She alleges that in the course of her interactions with Dr. Brock

about the CSA, he was rude and made “hurtful” statements. She believes that

those statements violated a physician’s responsibility for being polite and respectful

and amounts to negligence. At the motion hearing, she also asserted that his

conduct violated various AMA and CVMC ethical guidelines. In briefing, she cites

generally to the AMA Code of Medical Ethics Opinions barring doctors from

declining to accept (which did not happen here) patients due to invidious

discrimination and from placing their own financial interests above those of their

patients.6

      To prevail in all but the most obvious cases of professional neglect, a plaintiff

must come forward with expert evidence to establish the appropriate level of care.

See Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 313 (1982). Ms.

Williams has failed to do so in this case. Her citation of the AMA and CVMC ethics

guidelines and AMA ethics opinions cannot take the place of such evidence. Many

professional organizations promulgate aspirational codes that they hope their




6 Ms. Williams’ invocation of “financial interests” appears to be an oblique reference
to the claim that Dr. Brock wanted her to sign the CSA to protect his medical
license given the potentially controversial nature of the sort of prescriptions at
issue.
                                          14
members will follow. Such precatory guideposts may be relevant, but they are

insufficient on their own to establish a legal standard of care. See Desimini v.

Durkin, No. 14-CV-112-JD, 2015 WL 3408749, at *3 (D.N.H. May 27, 2015); Bala v.

Powers Ferry Psychological Associates, 491 S.E.2d 380, 381 (Ga. Ct. App. 1997).

      Since Ms. Williams has not come forward with any expert testimony

demonstrating an applicable standard of care and how Dr. Brock is alleged to have

breached it, Defendant is entitled to summary judgment as to the negligence claim.

      For the foregoing reasons, CVMC’s motion for summary judgment is granted

on all claims except retaliation in violation of the PAA arising out of Dr. Brock’s

alleged decision to terminate the doctor–patient relationship.

      Dated this __ day of June, 2016, at Montpelier, Vermont.

                                               _____________________________
                                               Timothy B. Tomasi,
                                               Superior Court Judge




                                          15
