PITTSBURGH – A federal judge has granted partial summary judgment against a woman who alleged her podiatrist’s office discriminated against her based on her disability when she sought medical treatment there – retaining her claim made under the Rehabilitation Act, but dismissing the one made under the Americans with Disabilities Act of 1990.
Ambur Ames of Bentleyville first filed suit in the U.S. District Court for the Western District of Pennsylvania on June 16, 2020 versus Washington Health System Foot and Ankle Specialists, Inc., of Washington.
“In May 2020, Ames had plantar warts, so she scheduled an in-person appointment at Washington Health. Of course, at that time (and even now), the country was in the midst of the COVID-19 public-health crisis. As a result, Washington Health had instituted certain policies intended to mitigate the risk presented by the virus, including a masking requirement for all patients. That masking requirement did not make exceptions for people with disabilities,” U.S. District Court for the Western District of Pennsylvania Judge J. Nicholas Ranjan said.
“Ames suffers from tuberous sclerosis, a condition that causes abnormal cell growth and skin lesions. Because of her condition, when she wears a mask, she breaks out in a painful rash on her face. As a result, Ames received a note from a certified registered nurse practitioner that excused her from wearing a face mask.”
On the day of her appointment, Ames arrived without a mask and told defendant Washington Health about her disability. She then requested an accommodation to be seen without a mask, which the defendant denied and offered a telemedicine appointment as an alternative accommodation.
Washington Health believed a telemedicine appointment was an appropriate compromise based on the treating physician’s experience that prescription of an over-the-counter ointment is the first treatment step in nearly all cases.
However, Ames refused Washington Health’s offer and sought treatment from another health care provider. The physician who eventually treated her plantar warts did not prescribe an ointment, but instead applied liquid nitrogen to the warts and scraped off the dead skin with a scalpel.
Ames alleged that the defendant violated the Rehabilitation Act and Americans with Disabilities Act of 1990, and sought both injunctive relief and reasonable attorney fees including litigation expenses and costs.
Washington Health motioned for summary judgment on March 22, claiming Ames failed to present evidence which would support her case’s counts.
“Plaintiff has alleged that defendant violated the ADA when plaintiff, who presented without a mask during the COVID- 19 pandemic, was not examined in-person. Plaintiff has failed to establish that she has a disability recognized under the ADA,” the defense’s summary judgment motion stated.
“Further, defendant contends that it offered plaintiff a reasonable modification to the mask policy. As plaintiff has failed to establish essential elements of her case, there can be no genuine issue as to any material fact and defendant, Washington Health Systems Foot and Ankle Specialists, Inc., is entitled to summary judgment in its favor.”
Ranjan concluded that there were disputes of material fact at play concerning Ames’s requested accommodation, the necessity of that accommodation and the podiatry office’s pair of defenses, disputes that Ranjan said should be resolved by a jury.
“Washington Health contends that Ames’s requested accommodation of waiving its masking policy is unreasonable because it would have created an unsafe environment that posed an increased risk of exposure to COVID-19 for its staff, physicians and other patients. Ames, on the other hand, argues that the accommodation was reasonable under the totality of the circumstances. This is a factual dispute that must be resolved by the jury,” Ranjan said.
“As Ames points out, just before she visited Washington Health, the Pennsylvania Secretary of Health issued an order requiring all visitors to businesses to wear masks for entry, but noted that ‘individuals who cannot wear a mask due to a medical condition…may enter the premises and are not required to provide documentation of such medical condition.’ The Department of Health then released guidance consistent with that order. Thus, Ames’s requested accommodation tracked the prevailing directives and guidance issued by the relevant public health authority, supporting a reasonable inference that Ames’s accommodation request was reasonable when she made it.”
While Ranjan admitted that “no one at Washington Health took Ames’s temperature, asked her if she had any other COVID-19 symptoms, had been exposed to COVID-19 or made any kind of particularized assessment of her risk”, he added that there is a genuine dispute of material fact over whether the telemedicine appointment would have been reasonable for Ames’s medical treatment.
“Dr. Alissa Parker, the treating physician at Washington Health, stated that her ‘typical’ course of treatment for plantar warts was to prescribe a topical ointment. But there are facts presented here that Ames was an atypical case, given the treatment she later obtained. There is no evidence that Dr. Parker looked at a photo of Ames’s plantar warts or asked for more information about them, which create inferences from which a jury could find that Dr. Parker’s treatment accommodation was deficient,” Ranjan said.
“Indeed, if Dr. Parker, or anyone else had asked Ames, she could have told them that she tried over-the-counter ointment and liquid freeze and they didn’t work for her. And the doctor who treated Ames right after she visited Washington Health had to provide hands-on treatment. These facts and reasonable inferences create a material dispute over the necessity of Ames’s requested modification.”
In the end, Ranjan granted Washington Health’s summary judgment motion in part and denied it in part, retaining the Rehabilitation Act claim and jettisoning the ADA claim.
“The Court will enter judgment in Washington Health’s favor on Ames’s ADA claims because she doesn’t have standing to bring them. As for Ames’s Rehabilitation Act claim, there are genuine disputes of material fact that preclude the Court from granting summary judgment,” Ranjan said.
The plaintiff is represented by Thomas B. Anderson of Thomson Rhodes & Cowie, in Pittsburgh.
The defendant is represented by Edmund L. Olszewski Jr. of Dickie McCamey & Chilcote, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00887
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com