             Case: 16-10980   Date Filed: 04/27/2017    Page: 1 of 26


                                                       [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                         ________________________

                           Nos. 16-10980, 16-13327
                         ________________________

                    D.C. Docket No. 9:13-cv-80685-DTKH



SANDRA SUNDERLAND,
BODIL TVEDE,
JAMES LIESE,
SUSAN LIESE,
CAROLANN DONOFRIO,
JOHN DONOFRIO,
JACQUELINE GLUCKMAN,
BARBARA DRUMM,
JOHN VIRGADAULA,
THE FLORIDA ASSOCIATION OF THE DEAF, INC.,

                                                  Plaintiffs - Appellants,

versus

BETHESDA HOSPITAL, INC.,
d.b.a. Bethesda Memorial Hospital,
d.b.a. Bethesda Hospital West,
BETHESDA HEALTH, INC.,

                                                 Defendants - Appellees.
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                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                      (April 27, 2017)

Before WILSON and BLACK, Circuit Judges, and RESTANI, ∗ Judge.

WILSON, Circuit Judge:

       Nine deaf hospital patients and the Florida Association of the Deaf 1 appeal

the district court’s dismissal at the summary judgment stage of their disability

discrimination claims against Bethesda Hospital. The patients and the Association

allege that Bethesda failed to provide the patients with the basic accommodation

required for a deaf individual to equally access hospital services: an interpretive

aid that allows the individual to communicate effectively with hospital staff. The

patients seek compensatory damages under Section 504 of the Rehabilitation Act,

and both the patients and the Association seek injunctive relief under Section 504

and the Americans with Disabilities Act (ADA).

       After careful review of the parties’ briefs and the record, and having had the

benefit of oral argument, we affirm in part and reverse in part. We reverse and

remand the district court’s grant of summary judgment to Bethesda on Sandra


       ∗
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
        1
          The Association is a membership organization which promotes the interests of hearing-
impaired individuals in Florida.
                                               2
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Sunderland’s, James Liese’s, Susan Liese’s, John Virgadaula’s, and Jacqueline

Gluckman’s Section 504 claims for compensatory damages. We also reverse and

remand the district court’s dismissal on standing grounds of Ms. Gluckman’s and

the Association’s Section 504 and ADA claims for injunctive relief. We affirm the

remainder of the district court’s findings.

                                      I. BACKGROUND 2

       In 2006, Bethesda entered a settlement agreement with the Department of

Justice after a complaint was filed with the Department alleging discrimination

against deaf patients. See Bethesda Mem’l Hosp., D.J. No. 202-18-178 (Settlement

Agreement May 5, 2006), https://www.ada.gov/bethesda.htm. The agreement

required Bethesda to take certain steps to ensure effective communication with

deaf patients. See id. For several years after the agreement, Bethesda primarily

relied on in-person interpreters to accommodate deaf patients. But in 2011 it

began using a Video Remote Interpreting device (VRI) to communicate with deaf

patients. The VRI allows patients to videoconference with an interpreter who is

located remotely.

       Bethesda has a written policy for the VRI:

               For the purpose of rendering emergency health care, the
               Hospital provides . . . [a VRI] Computer on Wheels. . . .
               The [VRI] . . . is stored in the Nursing Supervisor’s
       2
          In this section, we construe in the light most favorable to the patients the facts that are
relevant to their compensatory-damages claims. See McCullum v. Orlando Reg’l Healthcare
Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014).
                                                   3
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             office and will be brought to the area requesting the unit
             by the Nursing Supervisor. . . . In those circumstances
             where VRI does not accommodate patient need[s,] the
             nursing administrative supervisor and[/]or risk
             management will be contacted to assist with providing an
             alternative communication mode such as [an in-person
             interpreter].

      Bethesda’s nurses and Nursing Supervisors administer this policy, while

Bethesda’s Vice President for Risk Management ensures compliance with the

policy. A deaf patient’s nurse is responsible for determining whether to provide

the patient the VRI or a less-substantive interpretive aid. If the nurse finds that the

VRI is necessary, the nurse requests the VRI and the on-duty Nursing Supervisor

transports the VRI to the patient’s room. Once the VRI is in the patient’s room,

the nurse is responsible for assessing whether the VRI is accommodating the

patient’s needs. To address deficiencies with the VRI, the nurse can take

corrective measures, such as obtaining assistance from technical-support personnel

or communicating through written materials. In most situations, only if a nurse

finds that the VRI is not accommodating the patient will the patient be able to

access an in-person interpreter. When a nurse finds that an in-person interpreter is

needed, the Nursing Supervisor is tasked with seeking approval from a hospital

administrator for the interpreter. Other than transporting the VRI upon a nurse’s

request and seeking approval for an in-person interpreter, the Nursing Supervisor

has limited involvement with the process for accommodating a deaf patient.

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       Soon after Bethesda started using the VRI, various hospital personnel

received reports of patient difficulties with the VRI. Dorothy Kerr, one of

Bethesda’s Nursing Supervisors, and Gary Ritson, Bethesda’s Vice President for

Risk Management, were informed of a few instances in which the VRI

malfunctioned. Ritson also was informed that several patients refused to use the

VRI and demanded an in-person interpreter. In response to this information,

Ritson posted a sign in the hospital stating that patients who prefer an in-person

interpreter rather than the VRI must pay for the interpreter. Finally, the

Association met with Bethesda’s President to relay certain Association members’

complaints about the VRI.

       The patients in this case, Sandra Sunderland, Barbara Drumm, James Liese,

Susan Liese, John Virgadaula, Jacqueline Gluckman, Carolann Donofrio, John

Donofrio, and Bodil Tvede, each visited Bethesda after Bethesda began using the

VRI.

   A. Sandra Sunderland

       Ms. Sunderland, who is around 70 years old, had a heart attack in 2012 and

spent two weeks at Bethesda. During the stay, Ms. Sunderland had a cardiac

catheterization procedure. Ms. Sunderland asked a nurse for an in-person

interpreter prior to the procedure, but the nurse denied the request. And the nurse

did not provide Ms. Sunderland with the VRI. Consequently, the doctor who


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performed the procedure used neither the VRI nor an in-person interpreter when

communicating with Ms. Sunderland prior to the procedure. The doctor relied

solely on gesturing. Ms. Sunderland in her deposition reported that she was

confused about the procedure and was “scared to death” in the moments leading up

to it: “[Hospital staff] didn’t tell me anything. . . . [N]othing was explained. I was

just laying there scared to death and . . . I was like, ‘Huh, what’s going on here?

Where is my interpreter?’”

      While recovering in the hospital from the procedure, Ms. Sunderland

developed a hematoma and was sent to the intensive care unit. She was placed on

a ventilator and was sedated for a few days. When she woke up, a nurse provided

her information about her medication and its side effects, but her comprehension of

the information was “questionable.”

      On the fifth day of her admission, Ms. Sunderland again asked a nurse for an

in-person interpreter. The nurse denied the request but afforded Ms. Sunderland

access to the VRI. For the remainder of Ms. Sunderland’s hospital stay, the VRI

was used intermittently. The VRI, however, frequently froze and was blurry. Ms.

Sunderland’s son complained to a nurse about these issues and requested an in-

person interpreter. No in-person interpreter was provided.

      Ms. Sunderland lives near Bethesda. She suffers from several heart

conditions and has a depressive disorder. A medical expert testified in a deposition


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that Ms. Sunderland, due to her heart conditions, “eventually will go back to the

hospital,” but “[t]he timing of that is unpredictable.”

   B. Barbara Drumm

       Ms. Drumm is around 80 years old and visited Bethesda once in 2012 and

once in 2013. In 2012, she was admitted to Bethesda for multiple days for back

pain. During the first few days of her stay, hospital staff used pen and paper to

communicate with her and the final day, used the VRI. Ms. Drumm complained

during her stay about the limited access she had to hospital staff, but she did not

otherwise complain about communication difficulties. Ms. Drumm’s 2013 visit to

Bethesda was for chest pain. She communicated with pen and paper and the VRI

during the visit.

       Ms. Drumm lives near Bethesda and is a member of the Association. She

intends to return to Bethesda at some point, but she has no procedures scheduled

and her health is stable.

   C. James and Susan Liese

       James and Susan Liese are married and are both in their 80s. Mr. Liese

visited Bethesda three times in 2011, and Mrs. Liese accompanied him on all three

occasions.3



       3
         Mrs. Liese was not a patient at Bethesda. Her claims are based on her visits to Bethesda
as Mr. Liese’s “companion[].” See 28 C.F.R. § 36.303(c).
                                               7
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       Mr. Liese first visited the hospital for an appointment in preparation for a

hernia surgery. The Lieses asked a nurse for an in-person interpreter, but the nurse

ignored the request and communicated with the Lieses by pen and paper and by

trying to read their lips.

       The Lieses returned to Bethesda a few days later for Mr. Liese’s hernia

surgery. Mr. Liese requested an in-person interpreter, but his nurses opted to use

the VRI. The nurses, however, used the VRI only intermittently, and when they

did use the VRI, it frequently malfunctioned. The VRI worked at times but was

often blurry or failed to activate. Also, Mr. Liese has macular degeneration, so he

could not see the VRI screen clearly, and on at least one occasion, he and Mrs.

Liese were unable to comprehend the remotely located interpreter’s signing. Mr.

Liese, with the assistance of Mrs. Liese, e-mailed a representative from the

Association shortly after his surgery explaining some of the communication

difficulties he and his wife faced at Bethesda:

              I requested [a] live interpreter . . . on my arrival[, but] I
              was told they cannot find [a] live interpreter prior to the
              surgery. The interpreter on the VRI [w]as not very
              good[.] . . . [M]y wife . . . [could] not understand what
              [was] going on and the VRI interpreter did no[t] sign
              then [my nurse’s] voice stop[ped] and the VRI
              [interpreter started] sign[ing,] which [was] not very clear.
              Then my wife told the VRI interpreter [that the
              interpreter] sh[ould] sign same time [as] the [n]urse.
              [The] VRI inter[]preter said she ha[d a] problem . . .
              get[ting] the [nurse’s] voice in her earmicrophone . . . . It
              [was also] hard for me to see . . . the VRI.
                                           8
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      The Lieses returned to Bethesda in late 2011 for Mr. Liese to receive

treatment for a blood clot. Mr. Liese asked his nurses for an in-person interpreter,

but the nurses denied the request and used the VRI to communicate with the

Lieses. The VRI was blurry and repeatedly froze, and while the nurses were

preparing Mr. Liese for discharge, one nurse struggled to operate the VRI and

commented on the VRI’s malfunctioning.

      The Lieses live near Bethesda and are members of the Association. Mr.

Liese had a second hernia surgery in 2013 and suffers from a number of medical

conditions. Mrs. Liese also suffers from several conditions. The Lieses’

conditions are stable.

   D. John Virgadaula

      Mr. Virgadaula is in his early 70s and visited Bethesda once in 2014 for a

shoulder surgery. The VRI was used to facilitate communication with Mr.

Virgadaula during his pre-operation meetings with hospital staff, including his

anesthesiology evaluation and his pre-operation interview. Mr. Virgadaula’s

nurses, however, had difficulty setting up the VRI, and the VRI’s remotely located

interpreter intermittently became non-visible, preventing Mr. Virgadaula from

receiving the full information communicated by his doctors and nurses. These

difficulties were evident to the nurses, who repeatedly attempted to correct the

visibility issues. Eventually, some hospital staff abandoned the VRI and resorted
                                          9
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to simply gesturing to Mr. Virgadaula. Mr. Virgadaula’s doctor, for example,

resorted to gesturing in the moments leading up to Mr. Virgadaula’s surgery.

Mr. Virgadaula in his deposition reported:

             While they were [trying to fix the] VRI . . . the doctor
             was getting frustrated, . . . and then the doctor says, You
             know what—he looked at me and kind of gestured—
             Okay is it the right arm, right shoulder or the left
             shoulder? So he’s gesturing to me, asking which
             shoulder it is. . . . And [then] he’s gesturing this to me,
             sleep, you, and then shot in my shoulder.

      Mr. Virgadaula lives near Bethesda and is a member of the Association. He

has a number of medical conditions, including hypertensive heart disease and

cataracts. The conditions are stable.

   E. Jacqueline Gluckman

      Ms. Gluckman is in her late 70s. She visited Bethesda twice in 2011 for a

biopsy procedure and many times thereafter for physical therapy and

mammograms. Ms. Gluckman first visited Bethesda on October 7, 2011, for her

biopsy procedure. Nurses attempted to communicate with her using the VRI, but

the VRI did not work. Ms. Gluckman therefore wrote a note to the nurses

requesting an in-person interpreter. The nurses declined the request, and because

the nurses were unable to communicate with Ms. Gluckman, her procedure was

rescheduled to October 11, 2011. When Ms. Gluckman returned on October 11,

her nurses used the VRI, but the VRI was blurry and “the picture was no good.”


                                         10
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These problems caused confusion between Ms. Gluckman and hospital staff.

According to deposition testimony from Ms. Gluckman:

            [W]hen the doctor came in [to discuss the biopsy], he
            was all angry [about the VRI issues]. . . . I was trying to
            catch what he was saying on his lips. And [the nurses]
            were, you know, writing. And then they just said, like,
            Well just go ahead and do it. . . . I should have just
            walked out. I felt like I was just like a dog—just dog,
            like, they were just leading on, but they weren’t
            explaining anything to me. And then they had put the
            needle in my arm and it started bleeding.

After her October 11 visit, Ms. Gluckman returned to Bethesda more than sixteen

times for physical therapy and routine mammograms.

      Ms. Gluckman lives near Bethesda and is a member of the Association. She

has several medical conditions, including a sinus syndrome, coronary artery

disease, arthritis, and hypertension. Although those conditions are generally

stable, Ms. Gluckman has recently experienced neck and cervical pain.

   F. Carolann Donofrio

      Mrs. Donofrio is around 80 years old and visited Bethesda twice in 2013 for

a heart condition. When Mrs. Donofrio first visited Bethesda, nurses attempted to

use the VRI to communicate with her, but they were unable to connect the VRI to a

remotely located interpreter. Thereafter, the hospital obtained an in-person

interpreter for Mrs. Donofrio. When Mrs. Donofrio returned to Bethesda later in

2013, nurses attempted to use the VRI, but the VRI was blurry, requiring the


                                         11
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nurses to repeatedly restart it. The hospital again arranged for an in-person

interpreter.

         Mrs. Donofrio lives near Bethesda. She suffers from a number of heart

conditions but, according to her physician and cardiologist, is in no “acute stress.”

   G. John Donofrio

         John Donofrio is in his mid-70s and is married to Carolann Donofrio. In

2013, he suffered from food poisoning and went to Bethesda for treatment. Mrs.

Donofrio accompanied him. Mr. Donofrio requested by way of a written note that

hospital staff afford him either an in-person interpreter or the VRI, but staff

provided neither. The Donofrios instead communicated with staff by pen and

paper.

         Mr. Donofrio currently lives near Bethesda, and he has diabetes and a few

heart conditions. Those conditions are stable.

   H. Bodil Tvede

         Ms. Tvede is in her mid-80s and was admitted to Bethesda in 2011 after a

stroke. A nurse used the VRI to communicate with her at the beginning of her

stay. At one point during that encounter, the VRI picture zoomed in on the

remotely located interpreter’s face, preventing Ms. Tvede from seeing the hands of

the interpreter. Hospital staff relied on pen and paper, as well as “lip reading,” to

communicate with Ms. Tvede for the rest of her stay.


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       Ms. Tvede is a member of the Association, and she currently lives in Ohio.

                              II. PROCEDURAL HISTORY

       Ms. Sunderland, Ms. Drumm, the Lieses, Mr. Virgadaula, Ms. Gluckman,

Mrs. Donofrio, Mr. Donofrio, Ms. Tvede, and the Association filed a joint

complaint in district court raising disability discrimination claims under Section

504 and the ADA. 4 The patients requested compensatory damages under Section

504, asserting that, during their individual encounters with Bethesda, Bethesda was

deliberately indifferent to their Section 504 rights. And the Association and the

patients asked for injunctive relief under Section 504 and the ADA. 5 The

Association and the patients, alleging that various Bethesda policies and practices

are discriminatory, requested an order requiring Bethesda to correct the policies

and practices.

       The district court severed the patients’ claims into three trial groups, with the

Association’s claims constituting a separate, fourth group. The first patient group

included the claims of Ms. Sunderland, Ms. Drumm, and Mrs. Donofrio; the

second group included the claims of the Lieses and Mr. Virgadaula;6 and the third

group included the claims of Ms. Gluckman, Mr. Donofrio, and Ms. Tvede.


       4
          A tenth patient, Julia Feltzin, also raised claims in the complaint. Ms. Feltzin, however,
is not a party to this appeal.
        5
          The Association, relying on “associational standing,” requested injunctive relief on
behalf of its members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343,
97 S. Ct. 2434, 2441 (1977) (internal quotation marks omitted).
        6
          Ms. Feltzin’s claims were also included in this second group.
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      Bethesda filed motions for summary judgment on all of the patients’ claims,

as well as on the Association’s claims. The district court dismissed the patients’

claims in three separate orders and, in a fourth order, dismissed the Association’s

claims.

      In dismissing the patients’ claims, the district court found that most of the

patients established a triable issue as to whether Bethesda violated their Section

504 rights by denying them effective communication. However, the court

determined that (1) no patient can obtain compensatory damages under Section 504

because none offered sufficient evidence of deliberate indifference and (2) no

patient has standing to seek injunctive relief under Section 504 and the ADA

because none showed a real and immediate threat of future injury.

      The district court dismissed the Association’s claims for Section 504 and

ADA injunctive relief because the Association relied on the same future-injury

evidence as the patients.

                            III. STANDARD OF REVIEW

      We review de novo the district court’s grant of summary judgment on the

patients’ claims for compensatory damages, “viewing all facts in the light most

favorable to the [patients] and drawing all reasonable inferences in [their] favor.”

See McCullum, 768 F.3d at 1141. Summary judgment may be granted only if

“there is no genuine issue as to any material fact and the moving party is entitled to


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a judgment as a matter of law.” Id. A genuine issue of material fact exists when

“the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510 (1986).

       We review the district court’s conclusion that the patients and the

Association lack standing to seek injunctive relief “anew, without deference to

the . . . court’s legal conclusions.” Am. Civil Liberties Union of Fla., Inc., v.

Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1190 (11th Cir. 2009).

                                       IV. DISCUSSION

       This appeal presents fact-intensive questions: (1) whether any of the

individual patients established a triable issue of deliberate indifference and

(2) whether any of the individual patients (or the Association) established standing

to seek injunctive relief.7 Based on our review of the evidence related to each

patient, we hold that some of the patients (Ms. Sunderland, the Lieses, Mr.

Virgadaula, and Ms. Gluckman) have established a triable issue of deliberate

indifference and that one of the patients (Ms. Gluckman) and the Association have

established standing.

   A. Deliberate Indifference
       7
          In addition to challenging the district court’s dismissal of their claims, the patients and
the Association argue that the court abused its discretion in severing the patients’ claims into
three trial groups. See Weatherly v. Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013) (“We
review a district court’s decision . . . to sever for abuse of discretion.”). We conclude that the
district court acted within its discretion in severing the claims.
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      Under Section 504, Bethesda must provide to deaf patients and visitors

interpretive aids that are “necessary to ensure effective communication.” See Liese

v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 341, 351 (11th Cir. 2012);

28 C.F.R. § 36.303(c)(1) (“A public accommodation shall furnish appropriate

auxiliary aids and services where necessary to ensure effective communication

with individuals with disabilities.”). But to obtain compensatory damages, a deaf

patient or visitor must show more than a denial of effective communication—she

must show deliberate indifference. Liese, 701 F.3d at 344–45, 348.

      A defendant organization is deliberately indifferent under Section 504 if an

official of the organization knows that harm to an individual’s Section 504 rights is

substantially likely and the official fails to act on that likelihood. See id. at 344,

349. “[A]n official is someone who enjoys substantial supervisory authority within

an organization’s chain of command so that, when dealing with the complainant,

the official had complete discretion at a key decision point in the administrative

process.” Id. at 350 (internal quotation marks omitted). A hospital employee has

“complete discretion at a key decision point” in the hospital’s accommodation

process if she has authority to decide whether a patient can access an

accommodation and the decision is generally not reviewed by a higher authority,

even though the decision is “technically subject to review.” See id. Whether an

employee has such authority is “necessarily a fact-based inquiry.” See Doe v. Sch.


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Bd. of Broward Cty., 604 F.3d 1248, 1256 (11th Cir. 2010) (internal quotation

marks omitted).

      Taking the evidence in the light most favorable to the patients, a jury could

find that Bethesda nurses are officials and that the nurses were deliberately

indifferent to the Section 504 rights of Ms. Sunderland, the Lieses, Mr. Virgadaula,

and Ms. Gluckman. However, the evidence is insufficient to support a finding that

the nurses were deliberately indifferent to the rights of Ms. Drumm, Mrs.

Donofrio, Mr. Donofrio, or Ms. Tvede.

      1. Under Liese, a jury could conclude that Bethesda nurses are officials.

      In Liese, two deaf individuals alleged that a hospital violated their

Section 504 rights to effective communication. We found that a triable issue

existed as to whether doctors at the hospital were officials. See Liese, 701 F.3d at

350–51. A jury could have found that the doctors were officials, we held, because

the record suggested that the doctors had “supervisory authority” over hospital

patients’ access to interpretive aids. See id. at 350. That is to say, the record

supported a finding that the doctors had “discretion to decide whether or not to

provide [a patient] with an interpretive aid.” See id. “[N]o evidence . . .

suggest[ed] that the doctors’ decisions” about whether a patient should receive an

interpretive aid “were subject to reversal.” Id. And the hospital’s interpretive-aid

policy indicated that the doctors had broad discretion over patient access to


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interpretive aids. Id. The policy “offer[ed] no guidance or recommendation as to

when doctors or nurses should use [interpretive] aids; rather, it afford[ed] the

[hospital] staff complete discretion in [such] matters.” Id.

      The evidence related to Bethesda nurses’ authority over interpretive aids is

similar to the evidence related to the Liese doctors’ authority. When the evidence

is viewed in the light most favorable to the patients, Bethesda nurses can be seen as

having “supervisory authority” over a patient’s access to interpretive aids. See id.

The record indicates that nurses decide whether to provide the VRI or other, less-

substantive interpretive aids to a patient; nurses have authority to take corrective

measures when problems with the VRI arise; and in most situations, a patient can

access an in-person interpreter only if her nurse decides that the VRI and other aids

are not appropriate. Testimony from the patients suggests that (1) nurses manage

access to the VRI, as well as to less-substantive interpretive aids, and (2) nurses

have authority to reject unilaterally requests for in-person interpreters. And the

remainder of the record lends support to such testimony; the record supports a

finding that nurses’ decisions about when to provide and when to abandon the VRI

are generally not “subject to reversal.” See id. Indeed, like the policy in Liese,

Bethesda’s VRI policy provides hospital staff no guidance on when the VRI or




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another accommodation is appropriate. Nurses are afforded “complete discretion”

in implementing the policy. See id.8

       2. A jury could find that Bethesda nurses were deliberately indifferent to
          Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s
          Section 504 rights.

       A jury could find that Ms. Sunderland, the Lieses, Mr. Virgadaula, and

Ms. Gluckman were denied effective communication; that nurses were aware of

the denials; and that the nurses refused to correct the denials. See id. at 351

(holding that a triable issue of deliberate indifference existed because a hospital

doctor “knew that [the hospital] failed to provide [the plaintiff] with appropriate

auxiliary aids necessary to ensure effective communication” but decided not to

correct the failure). The evidence indicates that the nurses, knowing the patients

required an interpretive aid, relied on the VRI to facilitate communication with the

patients; were put on notice that the VRI was not accommodating the patients; 9 and

chose to persist in using the VRI without correcting its deficiencies.10 See Gebser

v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 1999 (1998)

(“[W]e hold that a damages remedy [is not available] . . . unless an official . . . has


       8
          Our determination that a jury could find that Bethesda nurses are officials is a fact-
intensive determination. We offer no opinion on whether nurses in other healthcare facilities can
be considered officials.
        9
          In reaching this conclusion, we do not find that a triable issue of ineffective
communication exists anytime a hospital uses a VRI. Rather, we conclude only that a jury could
find that the VRI, as administered to the patients here, was ineffective.
        10
           In fact, it appears that the nurses even abandoned the VRI altogether at times without
providing an alternative interpretive aid.
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actual knowledge of discrimination . . . and fails adequately to respond.”). In other

words, the evidence supports a finding that the nurses disregarded a substantial risk

that the patients were being denied effective communication. See Liese, 701 F.3d

at 344, 351.

      Ms. Sunderland requested an in-person interpreter at the beginning of her

stay, placing her nurses on notice that she required an interpretive aid. Yet the

nurses denied the request and provided neither the VRI nor any other interpretive

aid. Consequently, prior to an invasive procedure, Ms. Sunderland was forced to

communicate with her doctor through gesturing. And although the nurses decided

to provide Ms. Sunderland the VRI after the procedure, the VRI was blurry and

frequently froze, infringing Ms. Sunderland’s ability to communicate through the

VRI. See 28 C.F.R. § 36.303(c)(1)(ii) (“In order to be effective, auxiliary aids and

services must be provided in accessible formats . . . .”); id. § 36.303(f) (“A public

accommodation that chooses to provide qualified interpreters via VRI service shall

ensure that it provides . . . video and audio over a . . . connection that delivers high-

quality video images that do not produce lags, choppy, blurry, or grainy images, or

irregular pauses in communication . . . .”). Ms. Sunderland’s son complained to

the nurses about these issues and requested an in-person interpreter. “A reasonable

juror could well find from these facts that [the nurses] knew that” the VRI was not

allowing Ms. Sunderland “to understand the” medical services she was receiving.


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See Liese, 701 F.3d at 351. Even so, the nurses denied Ms. Sunderland and her

son’s requests for an in-person interpreter and otherwise refused to correct the

VRI’s deficiencies. 11 See id. (“[A hospital official’s] apparent knowledge that [a

patient] required an additional interpretive aid to effectively communicate with

him and his deliberate refusal to provide that aid satisfies the deliberate

indifference standard.”).

       The Lieses requested an in-person interpreter during each of their visits to

Bethesda, placing Mr. Liese’s nurses on notice that they required an interpretive

aid. Mr. Liese’s nurses denied the requests and relied on the VRI to facilitate

communication. In their administration of the VRI, the nurses arguably

demonstrated disregard for the Lieses’ communication needs. The nurses failed to

use the VRI consistently despite their knowledge that the Lieses required an

interpretive aid. And when the nurses used the VRI, it often froze or was blurry—

deficiencies that the nurses recognized and that obviously thwarted the VRI’s

serving as an “appropriate” interpretive aid. See 28 C.F.R. § 36.303(c), (f).

Further, in the presence of one of the nurses, the Lieses indicated that they were

struggling to follow the remotely located interpreter’s signing. The nurses,

however, chose to continue using the VRI, making no effort to seek an effective

       11
          Beyond seeking an in-person interpreter, a number of strategies for correcting the
VRI’s deficiencies appear to have been available to the nurses. The nurses, for example, could
have contacted Bethesda’s technical-support personnel to fix the VRI or could have taken the
steps necessary to provide effective written communications.
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alternative such as the interpretive aid requested by the Lieses—an in-person

interpreter. See Liese, 701 F.3d at 351.

      Mr. Virgadaula’s nurses relied on the VRI to facilitate communications, but

the remotely located interpreter repeatedly became non-visible, depriving

Mr. Virgadaula of substantial information that hospital staff were attempting to

communicate. The nurses recognized this deficiency but continued to rely on the

VRI. See Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1140 (9th Cir. 2001) (finding a

jury issue of deliberate indifference because, among other things, a public entity

was on notice that a particular accommodation was “inadequate” but the entity

persisted in relying on the accommodation); cf. Gebser, 524 U.S. at 290, 118 S. Ct.

at 1999. That decision, unsurprisingly, resulted in communication breakdowns

between Mr. Virgadaula and his doctor just prior to an invasive procedure.

      Ms. Gluckman had a similar experience at Bethesda as Mr. Virgadaula. Her

nurses relied on the VRI, but the picture on the VRI screen was blurry and not

cognizable, thereby thwarting the effectiveness of the VRI. See 28 C.F.R.

§ 36.303(c), (f). The nurses and Ms. Gluckman’s doctor all recognized this

deficiency; in fact, the doctor expressed frustration about the VRI’s

ineffectiveness. But the nurses chose to continue using the VRI without correcting

the deficiency. See Duvall, 260 F.3d at 1140; cf. Gebser, 524 U.S. at 290,

118 S. Ct. at 1999.


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       3. The evidence set forth by Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and
          Ms. Tvede is insufficient to support a finding of deliberate indifference.

       Although Ms. Drumm, Mrs. Donofrio, Mr. Donofrio, and Ms. Tvede may

have been denied effective communication, a jury could not find that a nurse—or

any other Bethesda employee—knew such a denial was substantially likely and

failed to act.12 First, Ms. Drumm, Mr. Donofrio, and Ms. Tvede offered no

evidence from which a jury could find that a nurse knew their right to effective

communication was likely being violated. Ms. Drumm and Ms. Tvede were

provided the VRI, but no evidence indicates that during the administration of the

VRI there were deficiencies of which their nurses had notice. Mr. Donofrio was

accommodated with pen and paper rather than the VRI or an in-person interpreter,

but based on the record, his nurses had no reason to believe that the notes were an

ineffective accommodation. Second, Mrs. Donofrio’s claim of deliberate

indifference is belied by Bethesda’s providing her in-person interpreters when the

VRI was ineffective.

   B. Standing to Seek Injunctive Relief




       12
           The patients claim that Bethesda’s President, a Nursing Supervisor (Kerr), and the Vice
President of Risk Management (Ritson) acted with deliberate indifference because they were
notified that Bethesda’s approach to the VRI was causing communication failures but failed to
act. However, the evidence at most shows that the President, Kerr, and Ritson were aware of a
few instances where the VRI malfunctioned or was otherwise ineffective. A mere awareness that
the VRI was sometimes ineffective does not amount to knowledge that Bethesda’s approach to
the VRI was substantially likely to lead to violations of patients’ Section 504 rights.
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       The patients’ “standing to seek the injuncti[ve relief] requested depends on

whether [they are] likely to suffer future injury.” 13 See Houston v. Marod

Supermarkets, Inc., 733 F.3d 1323, 1334 (11th Cir. 2013) (internal quotation marks

omitted). A “sufficient likelihood” must exist that the patients “will be affected by

[Bethesda’s] allegedly unlawful conduct in the future.” See id. at 1328 (internal

quotation marks omitted). This requires the patients to establish “a real and

immediate—as opposed to a merely conjectural or hypothetical—threat of future

injury.” See id. at 1334 (internal quotation marks omitted). To establish such a

threat, each patient must show that (1) there is a “real and immediate” likelihood

that she will return to Bethesda and (2) she “will likely experience a denial of

benefits or discrimination” upon her return. See McCullum, 768 F.3d at 1145–46.

       The district court erred in finding that Ms. Gluckman lacks standing, but the

court did not err in determining that the remaining eight patients lack standing.

       Ms. Gluckman has shown a real and immediate likelihood that she will

return to Bethesda, and she has shown that upon her return she will likely

experience discrimination. First, since 2011, Ms. Gluckman has visited Bethesda

more than sixteen times, and some of the visits were for routine screenings—

annual mammograms. Because Ms. Gluckman has a family history of breast


       13
         Given the nature of the Association’s claims and the record before us, the
Association’s standing turns on the standing of the patients who are Association members. See
Hunt, 432 U.S. at 342–43, 97 S. Ct. at 2441.
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cancer, she regularly undergoes mammograms. Her Bethesda records show that

she visited Bethesda in 2013, 2014, and 2015 for mammograms. Given the

frequency of Ms. Gluckman’s visits and the routine nature of her screenings, the

likelihood that she will return to Bethesda in the immediate future is not merely

conjectural. Second, the evidence indicates that, on more than one occasion,

Bethesda failed to accommodate Ms. Gluckman, and no evidence suggests that

Bethesda has taken steps to prevent such a failure in the future. See Houston, 733

F.3d at 1336 (“[A] plaintiff’s exposure to illegal conduct in the past is . . . evidence

bearing on whether there is a real and immediate threat of repeated injury.”

(internal quotation marks and citation omitted)). 14

       The remaining eight patients, however, have not established standing

because they have not shown a real and immediate likelihood that they will return

to Bethesda. The eight patients argue that, since they have medical conditions that

could at any time require them to visit a hospital, they have demonstrated a real

and immediate likelihood of returning to Bethesda. But the evidence shows that

the patients’ conditions are stable. See McCullum, 768 F.3d at 1146 (holding that a

plaintiff who had surgery at a hospital did not show a real and immediate threat of

       14
          Because Ms. Gluckman, a member of the Association, has standing, the Association
also has standing to pursue injunctive relief. The Association has satisfied the requirements for
associational standing. At least one of the Association’s members, Ms. Gluckman, has standing
to “sue in [her] own right”; the interests that the Association “seeks to protect are germane to
[its] purpose”; and “neither the claim asserted nor the relief requested requires the participation
of [the Association’s] individual members.” See Hunt, 432 U.S. at 343, 97 S. Ct. at 2441.

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returning to the hospital because the evidence demonstrated that he could control

his symptoms thereafter with medication). Although the patients might some day

return to Bethesda for treatment, the evidence does not establish a real and

immediate likelihood that they will do so. See Houston, 733 F.3d at 1338

(“‘[S]ome day’ intentions—without any description of concrete plans, or indeed

even any specification of when the some day will be—do not support a finding of

[standing].”).

                                V. CONCLUSION

      We reverse the district court’s grant of summary judgment to Bethesda on

Ms. Sunderland’s, the Lieses’, Mr. Virgadaula’s, and Ms. Gluckman’s Section 504

claims for compensatory damages. We also reverse the district court’s dismissal

on standing grounds of Ms. Gluckman’s and the Association’s Section 504 and

ADA claims for injunctive relief. We remand each for further proceedings

consistent with this opinion. We affirm the remainder of the district court’s

findings.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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