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`IN THE UNITED STATES DISTRIC T COURT
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`FOR THE DIS TR ICT OF NEW HAMPSHIRE
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`KATRINA ROSA, SHERYL
`BISHOP, TAMEY DONNELLY,
`PHILIP ROY AND ANNA
`SILVA,
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`Plaintiffs
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`vs.
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`THE MONADNOCK
`COMMUNITY HOSPITAL
`(MCH),
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`Defendant
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`No.
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`Plaintiffs Katrina Rosa, Sheryl Bishop, Tamey Donnelly, Philip Roy and Anna Silva, by and
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`through their undersigned counsel, Red Sneaker Law, PLLC, as and for their respective claims
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`against The Monadnock Community Hospital (MCH), hereby allege:
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`Preliminary Statement
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`1.
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`This is a civil rights lawsuit brought, primarily, under the Americans with Disabilities
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`Amended Act by three families in order to end more than two decades of discrimination by the
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`only major medical facility in an isolated part of New Hampshire. In short, despite past lawsuits
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`and settlements, Defendant Monadnock Community Hospital has failed, again and again, to
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`provide equal communication access to Deaf and Hard-of-Hearing patients and their families.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 2 of 26
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`This Court has Federal Question Jurisdiction pursuant to 28 USC § 1331, as this action is
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`2.
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`JURISDICTION
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`based upon two important federal statutes: the Americans with Disabilities Act, Title II, 42 USC
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`§ 12131 et. seq. and Title III, 42 USC § 12181 et. seq. and the Rehabilitation Act, 29 USC §794,
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`Section 504.
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`3.
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`The Plaintiff requests that this Court exercise supplemental jurisdiction over the State
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`court causes of action named herein as they arise from the common nucleus of operative facts.
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`28 USC § 1367.
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`VENUE
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`4.
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`Venue is proper in the United States District Court for the District of New Hampshire
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`pursuant to 28 USC §1391(b) and (c) as the Defendant’s medical facility is based in New
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`Hampshire, Plaintiffs were at all relevant times, and are currently New Hampshire residents and
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`the core nucleus of operative facts occurred within this venue.
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`JURY TRIAL DEMANDED
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`5.
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`Plaintiffs demand a trial by jury on each of the causes of action.
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`PARTIES
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`6.
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`Defendant The Monadnock Community Hospital (MCH) is a New Hampshire nonprofit
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`corporation, located 452 Old Street Road, Peterborough, County of Hillsborough, State of New
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`Hampshire and is a critical access hospital. Further, MCH is a “public accommodation” as
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`defined in 42 U.S.C. § 1281(7)(F) and its implementing regulation, 28 C.F.R. § 36.104 because it
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`is a private entity that operates a place of public accommodation, specifically, a hospital.
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`7.
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`Plaintiff Katrina Rosa is the Child of Deaf Adult (CODA) Plaintiff Sheryl Bishop and
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`resided, at all material times, at 1412 Forest Road, Greenfield, NH, 03047.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 3 of 26
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`8.
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`Plaintiff Sheryl Bishop, Plaintiff Katrina Rosa’s mother, is profoundly, prelingually deaf
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`and resided, at all material times, at 1412 Forest Road, Greenfield, NH, 03047. Ms. Bishop is an
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`individual with a disability within the meaning of ADA, 42 U.S.C. § 12102(1) and its
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`implementing regulation at 28 C.F.R. Part 36 as Ms. Bishop is prelingually deaf and
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`communicates, primarily, via American Sign Language.
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`9.
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`Plaintiff Tamey Donnelly, spouse of Plaintiff Philip Roy, is profoundly, prelingually deaf
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`and resided, at all material times, in West Peterborough, New Hampshire. Ms. Donnelly is an
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`individual with a disability within the meaning of ADA, 42 U.S.C. § 12102(1) and its
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`implementing regulation at 28 C.F.R. Part 36 as Ms. Donnelly is prelingually deaf and
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`communicates, primarily, via American Sign Language.
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`10.
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`Plaintiff Philip Roy, Spouse of Plaintiff Tamey Donnelly, is profoundly, prelingually deaf
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`and resided, at all material times, in West Peterborough, New Hampshire. Mr. Roy is an
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`individual with a disability within the meaning of ADA, 42 U.S.C. § 12102(1) and its
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`implementing regulation at 28 C.F.R. Part 36 as Mr. Roy is prelingually deaf and communicates,
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`primarily, via American Sign Language.
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`11.
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`Plaintiff Anna Silva is profoundly, prelingually deaf and resided, at all material times, at
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`172 Exeter River Landing, Exeter, New Hampshire. Ms. Silva is an individual with a disability
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`within the meaning of ADA, 42 U.S.C. § 12102(1) and its implementing regulation at 28 C.F.R.
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`Part 36 as Ms. Silva is prelingually deaf and communicates, primarily, via American Sign
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`Language.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 4 of 26
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`
`
`FACTS
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`MONADNOCK COMMUNITY HOSPITAL’S PREVIOUS SETTLEMENTS
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`12. Monadnock Community Hospital (“MCH”) is a critical access point hospital and it is also
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`the hospital the Deaf and Hard-of-Hearing Community of New Hampshire try to avoid, at
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`almost, all costs. MCH has a long, and well documented, history of failures in providing
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`communication access to deaf and hard-of-hearing patients and their families. These failures,
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`including the plaintiffs’ stories, stories of three families, all different, but all with the same theme
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`of a hospital that simply doesn’t care, begin more than a decade ago with another lawsuit and
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`another deaf patient denied communication access.
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`13.
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`In 2010, the United States Department of Justice began investigating the complaints of
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`Amy Dauphinais, a deaf woman who had alleged MCH failed to provide her with appropriate
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`communication access, required her to use inadequate or inappropriate auxiliary aids, and used
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`her minor daughter as an interpreter while she was an MCH patient.
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`14.
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`In 2013, MCH and the United States Department of Justice settled the Dauphinais case.
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`As part of the settlement, MCH agreed to establish a program to ensure it would provide
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`effective communication to deaf and hard-of-hearing patients in the future. Whatever changes
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`MCH may have implemented to end its quarrel with the Federal Government, it is clear, from the
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`facts below that MCH has failed to continue them.
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`15.
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`In the Dauphinais settlement agreement, MCH agreed, among other things, to:
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`a) appoint two or more Program Administrators to answer questions and provide
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`appropriate assistance regarding immediate access to and proper use of appropriate
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`auxiliary aids and services required by the settlement agreement. These
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 5 of 26
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`administrators were to be available 24/7 to provide immediate access to appropriate
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`Auxiliary Aids and Services.
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`b) extend all polices regarding communication access to not just patients but those
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`deaf and hard of hearing individuals accompanying a patient.
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`c) make no fewer than 5 attempts, no more than 15 minutes apart, to locate an
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`interpreter and provide one within 1 hour at least 80% of the time when an
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`American Sign Language (ASL) interpreter was required.
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`d) make a determination of the need for an auxiliary aid or service at “the time the
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`Patient or Companion initially comes in contact with Hospital Personnel.” And this
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`determination was to be documented as part of each initial Patient assessment and
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`made part of the Patient’s medical record.
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`e) develop a form to conduct a determination, made by trained personnel in
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`consultation with the deaf patient or companion, as to whether and what auxiliary
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`aid or service (“AAS”) was appropriate that would take into account all the relevant
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`facts and circumstances, including without limitation:
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`i.
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`ii.
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`the nature, length and importance of the communication at issue;
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`the individual’s communication skills and knowledge;
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`iii.
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`the Patient’s health status or changes thereto;
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`iv.
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`the Patient’s and/or Companion’s request for or statement of need for an
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`interpreter or other specific auxiliary aid or service;
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`v.
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`the reasonably foreseeable health care activities of the Patient (e.g. group
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`therapy sessions, medical tests or procedures, rehabilitation services, meetings
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 6 of 26
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`with health care professionals or social workers, or discussions concerning
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`billing, insurance, self-care, prognoses, diagnoses, history and discharge); and
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`vi.
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`the availability at the required times, day or night, of Appropriate Auxiliary
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`Aids and Services.
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`f) provide “qualified oral interpreters to such Patients and Companion who rely
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`primarily on lip reading…”
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`g) provide a qualified interpreter to obtain a medical history, get informed consent,
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`explain diagnosis, prognosis and current condition, explaining tests and procedures.
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`h) engage in, if a patient or companion indicated an Auxiliary Aid or Service was
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`ineffective, a documented redetermination as to the appropriate Auxiliary Aid or
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`Service.
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`i) maintain a log documenting:
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`i.
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`ii.
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`each request for an appropriate Auxiliary Aid and Service;
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`the type of auxiliary aid or service requested;
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`iii.
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`the time and date the request was made;
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`iv.
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`the name of the patient or companion making the request;
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`v.
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`the name of the MCH personnel who performed any communication
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`determination or redetermination;
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`vi.
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`the name of the MCH personnel responsible for determining whether or not to
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`provide the requested appropriate Auxiliary aid or service;
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`vii.
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`the nature of the auxiliary aid or service provided;
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`viii.
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`the time and date the AAS was provided or a statement as to why it was not
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`provided.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 7 of 26
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`16.
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`Further, the Settlement Agreement required the working assumption that a live, on-site
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`ASL interpreter would be needed, and provided, in the following, non-exhaustive,
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`circumstances:
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`a) determination of a Patient’s medical history or description of ailment or injury;
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`b) provision of Patient’s rights, informed consent or permission for treatment;
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`c) determination and explanation of Patient’s diagnosis or prognosis, and current
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`condition;
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`d) explanation of procedures, tests, treatment, treatment options or surgery;
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`e) religious services and spiritual counseling provided by MCH;
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`f) explanation of living wills or powers of attorney (or their availability);
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`g) diagnosis or prognosis of ailments or injuries;
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`h) explanation of medications prescribed (such as dosage, instructions for how and
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`when the medication is to be taken, and side effects or food or drug interactions);
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`i) determination of any condition or allergy of Patient that may affect choice of
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`medication;
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`j) explanation regarding follow-up treatments, therapies, test results or recovery;
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`k) discharge planning and discharge instructions;
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`l) filing of administrative complaints or grievances against MCH or its staff;
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`m) admitted deaf patients or their companions were to be provided qualified
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`interpreters throughout their stay for all event requiring substantial communication
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`such as post-surgical sessions, doctor rounds, discharge meetings, tests, procedures,
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`therapies and physician-patient meetings; and
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`
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 8 of 26
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`n) any other circumstance in which a qualified sign language interpreter is necessary
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`to ensure a Patient’s rights provided by law.
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`17.
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`MCH, given the extent of the 2013 Settlement Agreement with the United States
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`Department of Justice, is well aware of its responsibilities to deaf and hard-of-hearing patients
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`and their families. And is well aware it failed Katrina Rosa, Sheryl Bishop, Tamey Donnelly,
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`Philip Roy and Anna Silva along with countless others.
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`18.
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`COMMUNICATION WITH THE DEAF AND HARD-OF-HEARING
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`According to the Center for Disease Control, “[a]bout 40% of the sounds in the English
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`language can be seen on the lips of a speaker in good conditions — such as a well-lit room ... But
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`some words can’t be read. For example: “bop”, “mop”, and “pop” look exactly alike when
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`spoken. (You can see this for yourself in a mirror). A good speech reader might be able to see
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`only 4 to 5 words in a 12-word sentence.”
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`https://www.cdc.gov/ncbddd/hearingloss/language.html (last visited 1/26/2021).
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`19.
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`To put the previous paragraph into context, this is what lipreading 5 of every 12 words of
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`that paragraph might look like spoken to a deaf person trying to lip read:
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`According the Control, “[a]bout sounds the English can be on the speaker in
`good— room ... some can’t read. For example: “”, “”, and “” exactly alike when.
`(You this for in a mirror). A speech might be to see only 4 to 5 in a 12-word.”
`(last 1).
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`
`20.
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`It is difficult, in any given situation, to know what words might be lipread and which
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`might not, but, in the above example, for purposes of demonstration, the “important” words were
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`left in the example even though those are, as they are less commonly seen, the words least likely
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`to be understood. More than that, more than 5 words of each 12-word sequence were left in the
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`example.
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`
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 9 of 26
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`21.
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`Studies by Gallaudet University, The University for the Deaf in Washington D.C.,
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`demonstrate the average reading level for an 18-year-old high school graduate, who happens to
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`be deaf, hasn’t changed much in the last 50 years, remaining stable between a third and fourth
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`grade level. To put that into context, the average newspaper, online or otherwise, in the United
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`States is written at an 11th grade level. The largest American Sign Language Dictionary holds
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`some 5,600 words, while the Oxford English Dictionary has 500,000.
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`22.
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`It is easy to see why it is so important to provide appropriate auxiliary aides to the Deaf
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`and Hard-of-Hearing; without such aides, equal access is impossible.
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`STATEMENT OF FACTS AS TO PLAINTIFFS SHERYL BISHOP AND KATRINA
`ROSA
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`23.
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`In September 2019, Katrina called 911 as her elderly mother, Sheryl Bishop, appeared to
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`be suffering a seizure. Sheryl was transported, by ambulance, to the nearest hospital, Defendant
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`Monadnock Community Hospital.
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`24. While in the ambulance, paramedics, at Katrina’s request, notified MCH, via radio, that
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`her mother was Deaf, communicated via ASL, and required a live interpreter.
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`25.
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`Upon arrival, and over the course of Sheryl’s five and a half hour stay in the MCH’s
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`emergency department, Katrina requested, at least three times, that an interpreter be provided.
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`Each time, Katrina was told “interpreters never show up,” “they don’t usually come,” or “they
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`never show up” as explanations for why an interpreter would not be provided.
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`26.
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`Instead of providing a live ASL interpreter, as required under the Dauphinais settlement
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`agreement and law, MCH personnel attempted to connect with a virtual interpreter via Video
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`Remote Interpreting (VRI) but, ultimately, just couldn’t get the device to work and, so, gave up
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`the effort.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 10 of 26
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`27.
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`After failing to get the VRI working, MCH personnel repeatedly pressured both Katrina
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`and Sheryl to sign a waiver forgoing Sheryl’s right to have an interpreter. Neither signed the
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`waiver.
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`28.
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`Despite their refusal to sign the waiver, MCH insisted on using Katrina, who is hearing,
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`as an interpreter for her ill mother. Nurse Tonya Morrow wrote, as she took over from Nurse
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`Whitehead, “Daughter at bedside on return, assist with interpreting svcs for patient using ASL.”
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`29. MCH Medical records clearly indicate that Sheryl is “DEAF NONSPEAKING” and her
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`preferred language as “Sign Languages.” Elsewhere the records indicate “congenital deaf
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`mutism” on the problem list. It is listed an additional three times.
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`30.
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`Notably, the medical records where MCH personnel were to document communication
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`barriers, language ability mode expressed, language mode received, and special needs are all left
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`blank but, without any communication access, MCH personnel recorded a “patient narrative”
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`that Sheryl could not and did not provide.
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`31. Without any communication access, MCH personnel allegedly provide Sheryl with
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`information she could not understand. According to the records, “Patient was also told that her
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`of her urine culture are positive she will be notified as she will require antibiotics.” “patient told
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`that her neurologist will follow up with her …” The record does not state how Sheryl was “told”
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`any of this information or how MCH personnel ensured the information, however told, was
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`understood.
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`32.
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`The same MCH medical records indicate Sheryl is “nonverbal with hearing deficit at
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`baseline” and state that Sheryl gave “verbal understanding of discharge/Rx” and “d/c instruct
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`reviewed with pt. and daughter at bedside, verbal understanding of further f/u.”
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 11 of 26
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`33.
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`The records are replete with examples of MCH personnel giving and telling Sheryl a
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`great many different things without documenting how understanding of the information was
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`established without any auxiliary aides.
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`34.
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`The only documentation about efforts to get an interpreter indicate those efforts started at
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`3:15 pm, an hour after Sheryl arrived. Even then, Defendant made only 4 calls over the course
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`of 10 minutes and then gave up. At this time, Defendant only made 4 calls over 10 minutes
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`despite maintaining a list of 16 individual interpreters and an agency that provides interpreters.
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`35.
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`Sheryl was eventually discharged with instructions, which included the important need to
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`follow up with a neurologist, that she did not understand, both because they were in written
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`English and written by hand in sloppy handwriting.
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`STATE OF FACTS AS TO PLAINTIFFS TAMEY DONNELLY AND PHILIP ROY
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`36.
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`Tamey Donnelly and Philip Roy are a married couple. Both are prelingually deaf and
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`Philip is in generally poor health. And, as MCH is the closest medical facility to their home,
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`they have suffered discrimination at the hands of MCH for the past 20 years.
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`37.
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`Over their 20 years of being patients at MCH, Tamey and Philip have been denied
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`interpreters more times than they can count. Rather than provide interpreters, MCH personnel
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`would often force Tamey, whose speaking skills are better than Philip’s, to act as interpreter for
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`Philip. On information and belief, MCH personnel believe, because Tamey can “talk,” that she
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`could understand spoken and written English without any auxiliary aides.
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`38. With limited English language skills, despite Tamey’s best efforts, she could not get
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`Philip’s medical needs understood by MCH personnel. At every visit, Tamey asked, often
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`repeatedly, for an interpreter for Mr. Roy’s appointments but neither were provided with one.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 12 of 26
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`39.
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`On one such occasion, Ms. Donnelly called Ms. Meyer, an interpreter she often used,
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`from Monadnock hospital because she had pneumonia and Mr. Roy had a stroke and both of
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`them needed an interpreter and were told that one would not be provided. Over video chat,
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`through Ms. Donnelly’s iPhone, Ms. Meyer told the doctor “you need to get an interpreter,” but
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`the doctor responded flippantly, dismissed her request, and MCH did not provide Mr. Roy or Ms.
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`Donnelly with an interpreter.
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`40.
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`Prior to this, Ms. Meyer had warned Monadnock Community Hospital that refusing to
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`provide Mr. Roy and Ms. Donnelly with an interpreter was illegal. For example, Ms. Meyer
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`contacted Monadnock Community Hospital in 2017 when Mr. Roy underwent a barium swallow
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`test without an interpreter. A barium swallow test is an involved imaging test where a patient
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`ingests barium, and as he swallows, a radiologist takes a series of X-rays to watch the barium
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`moving through the mouth and throat. The process, which takes about an hour, was never
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`adequately explained to Mr. Roy. During this procedure, it is imperative that the radiologists
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`communicate with the patient in order to obtain valid results. At certain points, Mr. Roy would
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`have been instructed to swallow, and at other points he would have been instructed to hold his
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`breath. There are also guidelines patients are supposed to follow prior to undergoing such a test,
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`like no eating and drinking for 6 to 8 hours before the test, which were not adequately
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`communicated to Mr. Roy. Not following these guidelines can increase risks and side effects.
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`41.
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`There is no documentation in any of either Ms. Donnelly or Mr. Roy’s medical records
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`that any interpreters were contacted, with one exception, or that any effort was made to provide
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`communication access. Both Donnelly and Roy’s records were requested in the same manner of
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`Mrs. Bishops yet while Mrs. Bishop’s document the minimal effort to obtain an interpreter,
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 13 of 26
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`neither Donnelly’s records nor Roy’s give any indication an interpreter was ever requested for
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`either of them with the exception of February 14, 2018.
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`42.
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`On information and belief, Monadnock will allege Donnelly and Roy signed waivers
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`foregoing interpreters, yet without proper interpreting services neither Donnelly nor Roy would
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`have understood the waivers. Further, the waivers, as presented by Monadnock, violate the New
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`Hampshire’s Interpreter Statute. Worse, Tamey and Philip were forced to sign waiver in order to
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`get treatment.
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`43.
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`The couple’s MCH medical records indicate numerous times, dating back to 2009, that
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`they are both hearing impaired and communicate via sign language. In fact, every “face sheet”
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`of Philip’s records has an alert that he is deaf. The MCH records also document that Mr. Roy’s
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`“wife also deaf.”
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`44.
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`Over the course of two decades of treatment, neither Donnelly nor Roy were made aware
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`by MCH that a VRI system was available. The VRI service was never offered to them.
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`45.
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`Again, Donnelly and Roy requested interpreters at every visit. Mr. Roy, being non-
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`verbal, would present a preprinted, yellow card requesting an interpreter. MCH staff would tell
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`Donnelly and Roy, on various occasions, that the hospital could not afford interpreters.
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`46.
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`At one visit to MCH, Donnelly was asked to sign a form stating she would be Roy’s
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`interpreter for all visits to Monadnock. Donnelly’s children were asked to sign such a form to
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`act as her interpreter.
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`47. Without an interpreter, MCH made notations in Mr. Roy’s records, from a February 2018
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`ER visit, such as “Pt is deaf, wife is nonverbal, wife reports pt has been sick with cold symptoms
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`for approx. 1 week, pt has decreased use of right arm for 1 week, pt fell today with exc of all
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`symptoms. Wife in room signing pt and writing on paper, awaiting for transelator(sic)”
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 14 of 26
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`48.
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`Those records document no effort to use VRI and that MCH, instead of obtaining an
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`interpreter relied on “friend on phone.” “Frined (sic) on phone signs wife who communicates
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`with pt.” MCH utilized Ms. Donnelly’s Facetime app to use a family friend to interpreter.
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`49.
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`Nursing notes from the February 2018 ER visit state that MCH interpreter services paged
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`25 individuals in an effort to provide an interpreter, but those notes are contradicted by both the
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`HUC and switchboard department notes as each thought the other was working on getting an
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`interpreter resulting in no one making such an effort for some time.
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`50.
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`In fact, no effort to get an interpreter was made until 2 hours after Mr. Roy was admitted
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`and then only 3 of 14 possible interpreters or agencies were called.
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`51.
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`Notes of that visit further indicate that Roy attempted to communicate by paper but could
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`not, resulting in the hospital relying on “writing any questions we have in a yes or no format for
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`ease of communication.”
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`52.
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`Again, despite the hours long failure to even seek an interpreter coupled with the hours
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`long failure to get one, Monadnock never offered or attempted to use VRI.
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`53.
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`Ultimately, Mr. Roy was transferred to Cheshire Medical Center.
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`STATEMENT OF FACTS AS TO PLAINTIFF ANNA SILVA
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`54.
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`Anna Silva, who is prelingually deaf, encountered MCH in November of 2018. She was
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`with her husband Wayne Silva, who is also deaf.
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`55.
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`The Silvas had stopped using Monadnock several years prior because of the hospital’s
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`repeated failures to provide communication access, but, here, faced with a medical emergency,
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`they went to Monadnock.
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 15 of 26
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`56.
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`Like the other Plaintiffs, the Silvas provided MCH advanced notice they were coming
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`and would need an interpreter but, when they arrived, the Silvas were told that the interpreters
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`were “all booked up.”
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`57. With the interpreters “all booked up,” MCH attempted to use VRI but the machine did
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`not work. It was repeatedly unplugged and restarted. The image on the screen would freeze or
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`pixelate. It froze every 2 or 3 minutes during the 15 minutes effort given to using it.
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`58.
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`Finally, Anna, who, again, is herself prelingually deaf, was forced to interpret for her
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`husband. Doctors would give her notes to read and interpret to her husband.
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`59. Mr. Silva was eventually discharged yet Anna had no idea what was wrong, why her
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`husband was prescribed various medications or, ultimately, why he died the next day.
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`60.
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`Later, Anna complained, via Video Phone, to MCH about the failure to provide
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`communication access and received a letter from MCH’s Patient Experience Coordinator
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`informing Anna that hospital leadership had been made aware of the issues “with adaptive
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`services related to his hearing needs” and would review them.
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`ALLEGATIONS RELEVANT TO ALL CAUSES OF ACTION
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`61.
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`As described more fully above, Defendant’s denial of effective communication during the
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`medical treatment of Plaintiffs or Plaintiffs’ family members caused Plaintiffs significant pain,
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`suffering, and emotional distress. Due to Defendant’s refusal to provide effective
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`communication, Plaintiffs and/or their family members did not meaningfully understand critical
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`information about diagnoses, prognoses, medication and/or treatment options, and many times
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`Plaintiffs and/or their families were forced to sign consent forms and undergo procedures
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`without understanding the risks and benefits thereof. Plaintiffs were also sent home from
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`treatment at Defendant’s facilities without a complete or adequate understanding of the
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 16 of 26
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`instructions for follow-up care of the relevant patient or of their prognosis for future
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`improvement, complications or relapse thereby causing significant emotional harm, anxiety and
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`confusion.
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`62.
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`As described more fully above, Plaintiffs repeatedly put Defendant’s staff on notice that
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`communication was not effective by alerting them of the inadequacy of VRI systems and to their
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`need for qualified ASL interpreters. Yet, despite such notice, Defendant failed and/or refused to
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`provide qualified onsite ASL interpreters, failed and/or refused to ensure that VRI systems were
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`appropriate for each of the Plaintiffs’ circumstances, failed and/or refused to ensure that
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`available VRI systems were properly functioning, failed and/or refused to ensure that the
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`Defendant’s agents were properly trained and qualified in the use of the VRI systems, and failed
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`and/or refused to fix VRI systems that were not working properly.
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`63.
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`Rather, Defendant knowingly limited Plaintiffs to the little communication the Plaintiffs
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`could achieve through vague gestures, cryptic notes, and the few words Plaintiffs could
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`understand through reading lips. Defendant knowingly limited itself to the little communication
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`it’s personnel could understand from “yes and no” answers and nonverbal responses putting all
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`the Plaintiffs in medical jeopardy.
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`64.
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`Given its 2013 settlement with the United States Department of Justice, Defendant is
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`aware of its obligations under federal and state law to provide adequate and effective
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`communication for the deaf and hearing and speech unintelligible individuals that visit its
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`medical facilities as either patients or companions of patients.
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`65.
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`Upon information and belief, Defendant refuses to hire qualified on-site sign language
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`interpreters as a matter of policy at its hospital and other facilities and insists upon
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 17 of 26
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`communication through such inadequate means of communication as handwritten notes,
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`gestures, lip reading, and/or VRI in all cases.
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`66.
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`Upon information and belief, the refusal to offer on-site sign language interpreter services
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`to each of the individual Plaintiffs is the result of a policy or practice of Defendant to discourage
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`the use of onsite interpreters without regard to whether VRI services or other methods of
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`communication will provide effective communication, are available or even in working
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`conditions.
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`67.
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`Reliance by deaf and hearing and speech impaired individuals upon family members to
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`interpret medical communications for them is unwise and dangerous. Such family members are
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`generally not trained to act as interpreters, particularly in medical and hospital settings. Family
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`members often are untrained in accurately and precisely interpreting and conveying for and to
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`the hearing-impaired individual the complete and accurate content of medical communications.
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`In addition, family members are generally too personally and emotionally involved with the
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`hearing-impaired patient to act impartially and with the emotional detachment that is necessary
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`for qualified sign language interpreters, particularly in medical settings and communications.
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`68.
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`As a result of Defendant’s failure to ensure effective communication with Plaintiffs,
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`Plaintiffs received care and service that was objectively substandard and that is inferior to care
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`provided to patients and patient family members who can hear.
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`69.
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`Furthermore, despite its knowledge and understanding of its legal obligations to
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`provide adequate and effective communication to the Plaintiffs, and its knowledge and
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`understanding that the failure to provide adequate and effective communication to Plaintiffs
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`could and would result in denial of the Plaintiffs’ rights under law and in serious and material
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`harm and injury to the Plaintiffs, Defendant knowingly, intentionally and maliciously failed
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`Case 1:21-cv-00142 Document 1 Filed 02/12/21 Page 18 of 26
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`and/or refused to provide adequate and effective communication to Plaintiffs in an intentional
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`and/or deliberately indifferent violation of Plaintiffs’ rights.
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`70.
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`It is reasonably foreseeable that each Plaintiff will continue to visit one or more of
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`Defendant’s facilities, either by choice or necessity, due to the ubiquity of Defendant’s facilities
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`and the proximity of those facilities to the Plaintiffs’ homes or neighborhoods.
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`71.
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`Based on the foregoing, on information and belief, the actions and omissions of
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`Defendant resulting in harms to Plaintiffs were willful, malicious, intentional, recklessly
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`indifferent and undertaken with an evil mind and motive and with disregard for and deliberate
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`indifference to the legal rights of Plaintiffs under federal and state law and the substantial risk of
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`serious and material harms to the Plaintiffs. Therefore, to the extent allowed by any applicable
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`law, Defendant’s actions would warrant, in addition to all other appropriate relief, the imposition
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`of punitive, exemplary damages, or enhanced compensatory damages to punish the Defendant
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`for its wrongful conduct and to deter other similarly situated persons or entities from similar
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`future conduct.
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`FEDERAL CLAIMS
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`COUNT I
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`DEFENDANT MCH VIOLATED TITLE III OF THE AMERICANS WITH
`DISABILITIES ACT AS TO ALL PLAINTIFFS
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`Plaintiffs re-allege and incorporate by reference the allegations of facts contained in
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`
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`
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`72.
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`every preceding paragraph.
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`73.
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`Plaintiffs are substantially limited in the major life activities of hearing or related to
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`individuals so limited. Accordingly, they are considered individuals with a disability as defined
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`under the Americans with Disabilities