Before getting started on the blog entry of the day, I am currently reading Over Ruled by Justice Gorsuch and Janie Nitze. My passion for constitutional law and legal theory started in college when I took those two separate classes from Professor Rumble while majoring in political science at Vassar College. Now, I enjoy reading books like that to get a sense of what a jurist’s philosophy might be. Justice Gorsuch, regardless of whether you agree with him or not, is a fabulous writer and very enjoyable to read. One thing is clear from reading the book is that it should not be a surprise the position he took in Loper Bright. It also creates a real question as to whether Loper Bright, which we discussed here, overruled Kisor v. Wilkie, which we discussed here. I think from Justice Gorsuch’s perspective, you could make the argument that Loper Bright prevails over Kisor v. Wilkie.

 

Turning to the blog entry of the day, it involves a particularly egregious set of facts. If this was an employment situation, I would hope that Jon Hyman, Esq. would nominate the employer for a worse employer of the year award. However, it is not an employment situation, so I don’t think the entity in this case is eligible for that award. The case explores the question of when is something medical malpractice v. disability discrimination and why does it matter. The case is Costin v. Glen Falls Hospital decided on June 12, 2024 by the Second Circuit, here. As usual, the blog entry is divided into categories and they are: facts (taken directly from opinion); court’s reasoning that plaintiff has standing; court’s reasoning denying certain ADA and Rehabilitation Act claim; court’s reasoning allowing certain ADA and Rehabilitation Act claims (instigation of CPS investigation and administration of drug tests), to go forward; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from opinion)

 

When Costin’s water broke in March 2021, she was met at the Hospital by Nurse Stacy Ralph. Nurse Ralph and Costin discussed her medical history and birth plan, including Costin’s wish for an epidural injection. When asked what medications she was taking, Costin responded that she takes Subutex twice a day (as prescribed by her primary care physician). Subutex, like related medication Suboxone, is used to treat individuals with substance-abuse disorder. Notwithstanding her treatment with Subutex and rehabilitation, Costin “still has substance abuse disorder[,]” but she “is no longer using illicit opioids.” A26 (Am. Compl. ¶ 29).

After a change in shift, Nurse Ralph informed the incoming nurse, Nurse Karen Ranttila, that Costin was taking Subutex. Nurse Ralph also advised that the Hospital was awaiting the results from a urine-toxicology screen, a test that Costin was not informed about and did not consent to.

As Costin’s labor resulted in intense contractions that caused her to go “in and out of consciousness[,]” she asked Nurse Ranttila to prepare her epidural shot; Nurse Ranttila responded that the Hospital’s anesthesiologist was on call and that she would contact him to start the epidural process. A27-28 (Am. Compl. ¶ 33). Over the next hour, Costin’s contractions intensified, but she did not receive an epidural.

At one point, Nurse Midwife Nicole Bennett entered Costin’s hospital room and “blurted” out, “[y]our urine test came back with positive results for both cocaine and PCP.” A28 (Am. Compl. ¶ 34). Costin “immediately informed everyone in the room that the positive results were wrong, she did not take cocaine or PCP during her pregnancy, and the [H]ospital must have made an error in the lab or tested the wrong patient’s urine.” Id. Costin asked Nurse Ranttila to immediately redo the urine test or to conduct a blood test, and Costin continued to “beg” for an epidural. A28 (Am. Compl. ¶¶ 34-35).

As Nurse Ranttila collected a second urine sample, she asked Costin if she was “sure [she] didn’t do cocaine before coming in?” A28 (Am. Compl. ¶ 35) (internal quotation marks omitted). Nurse Ranttila also stated that (1) the Hospital “drug tests pregnant women who take Suboxone or Subutex `all the time'”; and (2) the Hospital “compares Subutex patients’ prescribed dosage against the levels in their system to try to determine whether they are illegally selling their pills.” Id. (emphasis omitted).

Approximately one hour later, Nurse Midwife Bennett informed Costin that her second urine sample tested negative for all substances. Nurse Ranttila informed Costin that the Hospital was withholding the epidural. Hospital staff then connected a bag of fluids to Costin’s IV drip. Costin again asked for an epidural, but Nurse Ranttila informed Costin that the bag of fluids contained Pitocin (a drug given to accelerate labor) and that the Hospital staff were waiting for her to finish receiving the fluids. Although Costin continued to ask for an epidural and did not want to accelerate her labor, Hospital staff refused to administer pain relief, ignored her request to withhold the Pitocin, and proceeded with inducing labor.

When Baby A was born later that evening, he had a bruised face, burst blood vessels in both eyes, and severe jaundice, attributable to the “violent nature” of his birth. A29-31 (Am. Compl. ¶¶ 38, 41, 42). Despite Costin’s protests, Nurse Ranttila collected Baby A’s urine and meconium to run additional toxicology screenings. Baby A was then placed into an incubator, which prevented him from having skin-to-skin contact with Costin. During this same period, Hospital staff sewed Costin’s vaginal tear closed without any form of pain relief, despite Costin’s “relentless[ ] yelling . . . for them to stop.” A30 (Am. Compl. ¶ 40).

The next day and the day after, Costin wanted to leave the Hospital to take a shower. Nurse Jodie Smith told Costin that she could not leave until she spoke to the attending physician, who would be visiting her room by 4:00 p.m. But the Hospital was actually delaying Costin’s discharge because it had contacted the New York State Child Abuse and Maltreatment Register “to report suspicions that . . . Costin was `responsible for causing or allowing to be inflicted injury, abuse, or maltreatment'” on Baby A. A33 (Am. Compl. ¶ 49). A caseworker from Warren County Child Protective Services (“CPS”) arrived at approximately 4:00 p.m. and directed Costin to submit to a third urine-screening test. The caseworker also directed Baby A’s father to take a drug test. After the caseworker left, Costin was allowed to go home to shower.

Upon her return to the Hospital, Costin met with Hospital representatives, who assured her “that they would change the manner in which they operate so that no patient is ever treated the way that Ms. Costin was treated,” and told her that “CPS would not conduct a home visit until further notice, given the circumstances,” and that a social worker employed by the Hospital, “would follow the case.” A37 (Am Compl. ¶ 58). Nevertheless, the Hospital refused to discharge Baby A until CPS could conduct a home visit. When Costin expressed confusion as to why CPS was still involved, Dr. Kevin Grassi informed Costin that the Hospital “reports possible child abuse by every patient that comes in on Suboxone.” A38 (Am. Compl. ¶ 60) (some emphasis omitted).

The next day, the Hospital informed Costin that her initial drug test was a false-positive and that CPS had closed its investigation. She was then allowed to go home with Baby A. But, within five minutes of Costin’s return home, the CPS caseworker arrived and informed Costin that the CPS investigation would not be closed without the test results from Baby A’s meconium. Ultimately, Costin received a letter from CPS stating that the Hospital’s suspicions of child abuse were unfounded.

Costin’s lawsuit alleges violations of Title III of the ADA, Section 504 of the RA, and numerous state laws. Most relevant to this appeal, Costin alleges that the Hospital violated the ADA and RA through: (1) the drug tests conducted without informed consent; (2) the report to CPS based on a drug test that it was aware produced a false-positive result; (3) the withholding of pain relief; (4) the induction of labor without consent; (5) the decision to keep Costin and Baby A in the Hospital; (6) the refusal to explain alternative treatments available to Baby A; and (7) the failure to take steps to remedy the Hospital’s abuse.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

1. Plaintiff plausibly alleged her intent to return to the Hospital despite how crazy things became because: 1) the Hospital was the only hospital within 15 miles of her home; 2) prior to giving birth, plaintiff had been a patient at the Hospital on at least three different occasions, including on an emergency basis; 3) the Hospital was the only one she can go to an emergency situation; 4) since birth of the child, she has already had to return to the Hospital with the baby and the baby’s father during an emergency; and 5) she is still very much of the age range when having another baby is a possibility.
2. Plaintiff only needed to allege that she was likely to return to the Hospital as a patient and not necessarily as a pregnant one because her allegations suggest that the policies she seeks to enjoin are not specific to the maternity ward.
3. Plaintiff has plausibly alleged that the Hospital policies discriminate against individuals with substance abuse disorder because they rely on stereotypes and pejorative views of Subutex users, regardless of whether those users are pregnant.

 

III

Court’s Reasoning Denying Certain ADA and Rehabilitation Act Claims

 

1. The term “discrimination,” in the medical context can be potentially confusing because it could refer to discriminating by drawing distinctions relevant to the qualities or characteristics of the thing observed. It also could referred to discriminating by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, such as under the influence of irrational bias.
2. Since disability is so often associated with a medical condition, the distinction of what discrimination might mean in the medical context is super important. That is, the federal law of discrimination does not review the conduct of the doctor administering a medical treatment to a patient or who withholds it because the doctor’s medical training leads the doctor to conclude that the treatment is medically appropriate or inappropriate. If the treatment is merely deficient, imprudent, or harmful, then the matter is one for medical malpractice. This is the case even if the doctor’s medical understanding is flawed and that doctor’s knowledge is deficient.
3. A doctor who inflicts or withholds a type of medical treatment for reasons having no relevance to medical reasons dictated by bias rather than medical knowledge-is practicing the pejorative form of discrimination, the kind of discrimination prohibited by disability discrimination laws.
4. A plaintiff pleads an actionable claim of discrimination for violations of the ADA or the Rehabilitation Act in the medical treatment context when a plaintiff alleges that the defendant made treatment decisions based on factors unrelated to and therefore improper to consideration of the inquiry in question.
5. The disability discrimination claims against the Hospital for denying her an epidural, accelerating her labor, failing to discharge her child, preventing skin to skin contact between her and her child, and failing to explain treatment alternatives are medical decisions and sound in medical malpractice rather than in disability discrimination. Even if the decision-making was faulty or constituted malpractice, those claims cannot support claims under the Rehabilitation Act or the ADA.
6. Medical decisions based on experience and judgment can easily be mischaracterized at the use of stereotypes.

 

IV

Court’s Reasoning Allowing Certain ADA and Rehabilitation Act Claims (Instigation of a CPS Investigation and Its Administration of a Drug Test), to Go Forward

 

1. Plaintiff alleged that she was told the Hospital reports possible child abuse by every (emphasis in opinion), patient that comes in on Suboxone.
2. Plaintiff alleged that she was told the Hospital drug test pregnant women taking Suboxone or Subutex all the time.
3. Plaintiff also alleged that she was told that the Hospital compared Subutex patient test results with their prescribed doses in order to determine whether they are illegally selling their pills.
4. Plaintiff has plausibly alleged that the Hospital had a blanket policy with respect to Subutex users to both report them to CPS for potential child abuse and to drug test them in order to determine whether they are illegally selling their pills.
5. Plaintiff has sufficient allegations to support the inference that the Hospital instigated the CPS investigation solely due to the plaintiff’s history of substance abuse disorder.
6. The Hospital agrees that such a policy has no relevance to medical decision-making.
7. With respect to the drug testing claim, it is possible for a hospital pursuant to a medical decision, to institute a blanket policy subjecting an individual with a disability to different medical testing or treatment based on that individual’s disability without exposing itself to liability under the ADA or the Rehabilitation Act. However, plaintiff alleges that the policy is based upon a discriminatory motive. That is, the policy is based upon a pejorative view of Subutex and Suboxone users as being dishonest or even drug dealers, rather than based upon any medical rationale.
8. The ruling is a narrow one because it does not address whether ADA or Rehabilitation Act liability is present. That determination requires further proceedings, including any affirmative defenses that the Hospital might raise.
9. Since plaintiff only has a claim as to the CPS investigation and the administration of the drug tests, damages for liability under the Rehabilitation Act are limited to those claims.
10. In a footnote, the court said that to the extent the plaintiff alleged she was prevented from leaving the Hospital due solely to the policy, that claim was vacated and remanded as well.

 

V

Thoughts/Takeaways

 

1. The facts are truly awful.
2. As far as I can tell, the decision is  not published.
3. Medical malpractice cases and disability discrimination cases can certainly go together. I actually successfully co-counseled on such a case (happened to be plaintiff side), involving both medical malpractice and disability discrimination at the same time.
4. Blanket policies are always a bad idea.
5. When it comes to ADA or Rehabilitation Act matters, the individualized analysis reigns supreme.
6. The distinction between disability discrimination and medical treatment makes sense. The danger is when medical professionals believing they know what is best for the person without a disability regardless of engaging the person with a disability in the first place. See also this blog entry.
7. The distinction between disability discrimination and medical treatment does not mean no liability in either case. Rather, it means there may be liability for medical malpractice AND for disability discrimination simultaneously. The particular facts of the case will drive how that evolves in any particular situation.
8. States can vary widely on their medical malpractice laws with respect to when they are available and what damages may be pursued. Medical malpractice claims also have different statute of limitations than disability discrimination claims.
9. As a result of Cummings, here, you cannot get emotional distress or punitive damages for violations of the Rehabilitation Act. There are also cases coming down now saying that you cannot get either of those damages with respect to Title II of the ADA, such as if a public hospital was involved.
10. Causation is not the same for Rehabilitation Act cases (solely by reason of), v. ADA cases (on the basis of or by reason of). The cases are quite clear on that with the Rehabilitation Act having the higher causation standard.
11. Never assume and always do an individualized analysis. Also, always be sure to explore any and all reasonable accommodations/modifications.