                           STATE OF MICHIGAN

                            COURT OF APPEALS



WARREN C. CORYELL, JR., and CHASITY                                  UNPUBLISHED
CORYELL, individually and on behalf of                               September 27, 2018
WARREN C. CORYELL III,

               Plaintiffs-Appellants,

v                                                                    No. 340163
                                                                     Genesee Circuit Court
HURLEY MEDICAL CENTER,                                               LC No. 16-107019-NO

               Defendant-Appellee.


Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Plaintiffs Warren Coryell, Jr. and Chasity Coryell are deaf individuals, and Chasity is
also blind. When they sought medical services for their minor child at defendant’s hospital, they
requested in-person interpreters. Instead, defendant provided an interpreter through Video
Remote Interpreting (VRI), by which an interpreter communicates with the doctor and patient—
or in this case, the patient’s parent—from a remote location through a video screen. Plaintiffs
alleged that the VRI service was ineffective and that defendant failed to accommodate their
disabilities under the Persons with Disabilities Civil Rights Act (PWDCRA), 37.1101 et seq.,
and Title III of the American’s with Disabilities Act (ADA), 42 USC 12181 et seq. The trial
court granted defendant summary disposition under MCR 2.116(C)(10), finding it made
reasonable accommodations. 1 On appeal, plaintiffs argue that the trial court erred in granting
defendant summary disposition because there is a question of fact about whether defendant
accommodated their disabilities. Specifically, plaintiffs contend that there is a question of fact as
to whether defendant provided the means for “effective communication.” We agree and
therefore reverse the trial court and remand for further proceedings consistent with this opinion.2



1
  The trial court also granted defendant summary disposition of plaintiffs’ claim of negligent
infliction of emotional stress. Plaintiffs do not appeal that ruling.
2
 We review de novo the trial court’s grant of summary disposition under MCR 2.116(C)(10).
See Peden v Detroit, 470 Mich 195, 200-201; 680 NW2d 857 (2004). Summary disposition
under that subrule is appropriate where “there is no genuine issue as to any material fact, and the


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                                       I. BACKGROUND

         Around midnight, plaintiffs took their 2½-year-old son to defendant’s hospital.
According to plaintiffs, the child had been continuously vomiting. In his deposition, Warren
testified that he informed defendant upon arrival via handwritten notes that (1) he required a live
American Sign Language (ASL) interpreter, (2) Chasity required a Tactile American Sign
Language (TASL) interpreter, and (3) both plaintiffs required interpreters from Communication
Access Center (CAC) as opposed to the company defendant contracted with—Bromberg &
Associates, LLC (Bromberg). Warren testified that he did not want to use Bromberg because he
had “problems” in dealing with their interpreters in the past. Defendant told Warren that he
would be responsible for paying for a CAC interpreter, and he agreed to do so. However, CAC
did not have an interpreter available. Defendant then contacted Bromberg, who could not
provide an in-person interpreter until the morning. Warren testified that he reluctantly agreed to
use the VRI service provided through Bromberg rather than wait until the morning.

        Warren was “disgusted with the quality” of the VRI service, found the colors in the video
to be distracting, and had difficulty understanding the interpreter. He testified that the video
screen turned off and on several times and at one point “crashed.” He also explained that it was
difficult to follow the ASL interpretation because he was trying to interpret for his wife,
presumably through TASL. Warren said that he asked the interpreter to “back up” when he
missed the interpretation but that the interpreter “just kept on going with the interpretation.”
Warren said that some of the doctor’s statements were not communicated to him as a result.
Defendant did not provide evidence contradicting Warren’s version of those events. After the
VRI session ended, the child was examined and discharged.

       Plaintiffs filed a complaint pursuant to the PWDCRA and the ADA, alleging that
defendant failed to accommodate their disabilities. Defendant moved for summary disposition,
arguing that the accommodations were reasonable under the circumstances. At the motion
hearing, the trial court agreed with defendant:

       [I]t appears to the Court, from everything I’ve read, that reasonable
       accommodation was made. And just because the plaintiffs don’t like the services
       that were provided that does not mean that the services were not provided within
       the meaning of reasonable accommodations.

The trial court granted defendant’s motion and dismissed plaintiffs’ claims with prejudice.
Plaintiffs now appeal, contending that the trial court erred in not applying ADA regulations and
that material issues of fact existed that precluded summary disposition. We agree.




moving party is entitled to judgment or partial judgment as a matter of law.” MCR
2.116(C)(10). “There is a genuine issue of material fact when reasonable minds could differ on
an issue after viewing the record in the light most favorable to the nonmoving party.” BC Tile &
Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich App 576, 582-583; 794 NW2d 76 (2010).



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                                       II. DISCUSSION

        Article III of the PWDCRA prohibits places of public accommodation from denying an
individual “full and equal enjoyment” of services because of a disability that is unrelated the
individual’s ability to use those services. MCL 37.1302(a). A place of public accommodation
must accommodate a person with a disability “unless the [place of public accommodation]
demonstrates that the accommodation would impose an undue hardship.” MCL 37.1102(2). An
accommodation is inadequate if it does not allow the person with a disability equal enjoyment of
the defendant’s services. Cebreco v Music Hall Center for the Performing Arts, Inc, 219 Mich
App 353, 360; 555 NW2d 862 (1996). To make a prima facie case under the PWDCRA, a
plaintiff must show that the defendant failed to accommodate a disability. If that is
accomplished, then the defendant bears the burden of producing evidence that the
accommodation would impose an undue hardship. MCL 37.1210(1); Hall v Hackley Hosp, 210
Mich App 48, 54; 532 NW2d 893 (1995).

        Title III of the ADA also prohibit places of public accommodation from discriminating
against individuals with disabilities. 42 USC 12182(a). Title III provides specific prohibitions
of discrimination. 42 USC 12182(b)(2)(A)(i)-(v). Pertinent to this case, discrimination includes

       a failure to take such steps as may be necessary to ensure that no individual with a
       disability is excluded, denied services, segregated or otherwise treated differently
       than other individuals because of the absence of auxiliary aids and services,
       unless the entity can demonstrate that taking such steps would fundamentally alter
       the nature of the good, service, facility, privilege, advantage, or accommodation
       being offered or would result in an undue burden. [42 USC 12182(b)(2)(A)(iii).]

The ADA defines auxiliary aids and services, 42 USC 12103(1)(A)-(D), and a federal regulation
expands on those definitions. The regulation provides in part that auxiliary aids and services
include “[q]ualified interpreters on-site or through video remote interpreting (VRI) services[.]”
28 CFR 36.303(b)(1). The regulation contains an “[e]ffective communication” requirement,
providing that

       [a] public accommodation shall furnish appropriate auxiliary aids and services
       where necessary to ensure effective communication with individuals with
       disabilities. This includes an obligation to provide effective communication to
       companions who are individuals with disabilities. [28 CFR 36.303(c)(1).]

“The type of auxiliary aid or service necessary to ensure effective communication will vary in
accordance with the method of communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in which the communication is
taking place.” 28 CFR 36.303(c)(1)(ii). Ultimately, the place of public accommodation chooses
the type of auxiliary aid or service, but that choice must result in effective communication. Id.
“To be ineffective communication, it is sufficient if the patient experiences a real hindrance,
because of her disability, which affects her ability to exchange material medical information with




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her health care providers.” Silva v Baptist Health South Florida, Inc, 856 F3d 824, 836 (CA 11,
2017).3 Discrimination occurs within the meaning of the ADA when a covered entity fails to
provide auxiliary aids or services necessary to ensure effective communication. Id. at 831.
“Generally, the effectiveness of auxiliary aids and/or services is a question of fact precluding
summary judgment.” Chisolm v McManimon, 275 F3d 315, 327 (CA 3, 2001).

        To begin, we read the trial court’s finding that defendant made reasonable
accommodations for plaintiffs’ disabilities as tantamount to a ruling that plaintiffs did not prove
a prima facie case of failure to accommodate. We agree with the trial court that mere subjective
dissatisfaction with an accommodation is insufficient to establish a prima facie case, and we
acknowledge that VRI is generally considered an effective accommodation for a deaf individual
under the relevant regulations. However, if the quality of the VRI in a particular case is such that
it does not provide effective communication, a prima facie case may be established.4

        That was the case in Silva, 856 F3d at 829-830, in which the plaintiffs were deaf
individuals and the defendants’ hospitals used VRI to communicate with them. The plaintiffs
averred that the VRI machine routinely malfunctioned. Id. at 830. Sometimes the device would
not work at all. Id. at 837. Other times it would “freeze” and “there would be a huge lag time
where it would seem like the interpreter was in slow motion.” Id. at 838. The Eleventh Circuit
held that there was sufficient evidence for the plaintiffs’ effective-communication claim to
survive summary judgment. Id. The court was mindful that ADA regulations provide quality
standards for VRI services. Id. at 838 n 11. The reason for these requirements is clear: “A deaf
person must rely on the slight and sophisticated hand movements of the interpreter depicted on
the screen, so when the screen image is unclear or becomes choppy, the message is disrupted.”
Id. at 838.

         We find Silva persuasive and analogous to this case. Warren’s deposition testimony
regarding the quality of the VRI service he received creates a question of fact about whether his
disability was accommodated and whether he received effective communication. Warren
testified that the video feed was of such low quality that the VRI was inadequate and ineffective.
Warren also testified that the interpreter ignored his requests to repeat certain interpretations
despite the fact that Warren was simultaneously attempting to provide TASL interpretation for
Chasity.



3
 We may rely on federal caselaw for its persuasive value. Churella v Pioneer State Mut Ins Co,
258 Mich App 260, 268; 671 NW2d 125 (2003).
4
  “ADA regulations expressly provide that, when a covered entity ‘chooses to provide qualified
interpreters via VRI service,’ it ‘shall ensure that it . . . delivers high-quality video images that do
not produce lags, choppy, blurry or grainy images, or irregular pauses in communication.’ ”
Silva, 856 F3d at 838 n 11, quoting 28 CFR 36.303(f) and (f)(1). “The VRI must also have ‘[a]
sharply delineated image.’ ” Id., quoting 28 CFR 36.303(f)(2).




                                                  -4-
        The evidence also establishes a question of fact about whether defendant accommodated
Chasity’s disability because she was not provided a TASL interpreter. Defendant argues that a
place of public accommodation can rely on family members of the person with the disability to
satisfy its obligations under the ADA. However, federal regulations5 expressly disavow this
approach. “A public accommodation shall not rely on an adult accompanying an individual with
a disability to interpret or facilitate communication, except” when there is “an emergency
involving an imminent threat to the safety or welfare of an individual or the public.” 28 CFR
36.303(c)(3)(i).6 Thus, it cannot be said that defendant accommodated Chasity’s disabilities as a
matter of law, particularly when Warren contends that he was unable to effectively follow the
ASL’s interpretation and translate for Chasity at the same time.

        In sum, viewing the evidence in a light most favorable to the nonmoving party, material
questions of fact exist as to whether defendant’s VRI service provided plaintiffs effective
communication.7 Accordingly, the trial court erred in granting defendant’s motion for summary
disposition and dismissing plaintiffs’ complaint.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Jonathan Tukel
                                                            /s/ Jane M. Beckering
                                                            /s/ Douglas B. Shapiro




5
  Given their similarity, the ADA and PWDCRA “require essentially the same analysis, and in
the predominant number of cases, the result under either statute may well be the same.” Peden,
470 Mich at 217 (emphasis removed). However, “federal laws and regulations are not binding
authority on a Michigan court interpreting a Michigan statute” and therefore a PWDCRA
analysis may not necessarily parallel one under the ADA. Id. In this case, the federal
regulations are undoubtedly relevant to plaintiffs’ ADA claim. Even if the regulations do not
govern the PWDCRA claim, we nonetheless conclude that plaintiffs established a question of
fact about whether defendant accommodated their disabilities.
6
  Defendant asks us to hold that any emergency-room visit be deemed “an emergency involving
an imminent threat to the safety or welfare of an individual.” We decline to do so. If that were
intended, it certainly could have been clearly set forth in the relevant regulation. And defendant
has not provided us with any caselaw supporting this extraordinarily broad interpretation of the
exception.
7
  Because the trial court did not address whether requiring defendant to provide more effective
accommodations would have been unduly burdensome under the circumstances, we make no
comment on that matter.


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