Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 1 of 23
`
`Shenoa L. Payne, OSB No. 084392
`SHENOA PAYNE ATTORNEY AT LAW PC
`735 S.W. First Ave., Ste. 300
`Portland, Oregon 97204
`Phone: (503) 914-2500
`spayne@paynelawpdx.com
`Matthew C. Ellis, OSB No. 075800
`LAW OFFICE OF MATTHEW C. ELLIS
`621 S.W. Morrison St., Ste. 1025
`Portland, Oregon 97205
`Phone: (503) 345-5497
`matthew@employmentlawpdx.com
`
`Attorneys for Plaintiff
`
`IN THE UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`PORTLAND DIVISION
`
`CHRISTINE GETMAN, an individual,
`
`Case No.: 3:21-cv-1408
`
`Plaintiff,
`
`v.
`
`OREGON HEALTH AND SCIENCE
`UNIVERSITY, a public corporation of the
`State of Oregon;
`
`Defendant.
`
`Plaintiff alleges as follows:
`
`COMPLAINT
`
`Disability Discrimination
`(29 U.S.C. § 794(a); 42 U.S.C.§ 12132; 42
`U.S.C.§ 18116)
`
`DEMAND FOR JURY TRIAL
`
`INTRODUCTION
`
`1.
`
`Anti-discrimination and other civil rights laws are not suspended or waived in times
`
`of emergencies or disaster, such as the COVID-19 pandemic. This is particularly true with respect
`
`to the treatment of persons with disabilities during medical emergencies as they possess the same
`
`Page 1 – COMPLAINT
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 2 of 23
`
`dignity and worth as everyone else.1 Civil rights protections and responsibilities cannot be waived
`
`and health-care providers and governments, such as defendant, must comply with the Americans
`
`with Disabilities Act as Amended, Section 504 of the Rehabilitation Act, and Section 1557 of the
`
`Patient Protection and Affordable Care Act, even during a crisis. This includes crafting and
`
`implementing policies such as crisis standards of care, visitation rules, and vaccine distribution
`
`plans.2
`
`2.
`
` Unfortunately, defendant Oregon Health and Science University failed to comply
`
`with federal laws prohibiting discrimination against persons with disabilities in providing medical
`
`treatment and care to plaintiff Christine Getman, a woman living with Spinal Muscular Atrophy.
`
`Defendant strictly enforced its COVID-19 no-visitor policy, despite having knowledge of Ms.
`
`Getman's disability and her disability-related need to have a support person present to assist
`
`plaintiff with the activities of daily living. Defendant's refusal to modify its policy resulted in Ms.
`
`Getman's inability to take full, equal advantage of defendant's healthcare services and constituted
`
`unlawful discrimination in violation of Section 504 of the Rehabilitation Act (Section 504), Title
`
`II of the Americans with Disabilities Act as Amended (ADA), and Section 1557 of the Patient
`
`Protection and Affordable Care Act (ACA).
`
`
`1 United States Dep't for Human Health Services Office for Civil Rights, Civil Rights,
`HIPAA, and the Coronavirus Disease 2019 (Apr 3, 2020), available at
`https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf.
`
` 2
`
` United States Dep't of Justice, Statement by the Principle Deputy Assistant Attorney
`General for Civil Rights Leading a Coordinated Civil Rights Response to Coronavirus (COVID-
`19) (Apr 2, 2021), available at https://www.justice.gov/opa/pr/statement-principal-deputy-
`assistant-attorney-general-civil-rights-leading-coordinated-civil.
`
`
`
`Page 2 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 3 of 23
`
`PARTIES
`
`3.
`
`Plaintiff Christine Getman is a natural person who at all relevant times was a
`
`resident of Portland, Oregon and a patient of defendant Oregon Health and Science University.
`
`4.
`
`Defendant Oregon Health and Science University (OHSU) is a public corporation
`
`of the state of Oregon. Defendant is an academic health center with several facilities in Oregon,
`
`including a hospital campus in Portland, Oregon that serves as its principle place of business.
`
`JURISDICTION AND VENUE
`
`5.
`
`6.
`
`This Court has jurisdiction of plaintiff's claims under 28 U.S.C. §§ 1331 and 1343.
`
`Venue is proper in this District under 28 U.S.C. § 1391(b)(1) and (2). Defendant
`
`resides in this District and the events giving rise to this Complaint occurred in this district.
`
`FACTUAL ALLEGATIONS
`
`Plaintiff's Medical Condition
`
`7.
`
`Plaintiff lives with Type II Spinal Muscular Atrophy (SMA), a rare neurological
`
`disorder and a progressive disease that causes quadriparesis (severe weakness in her muscles). Ms.
`
`Getman uses a ventilator for support, requires the use of a mobility device, has decreased lung
`
`capacity, and has severe limited functioning of her gross and fine motor functions. Other than use
`
`of her index finger, Ms. Getman has severely limited use of the muscles below her neck.
`
`8.
`
`Due to her medical condition, Ms. Getman requires 24-hour support from a
`
`caregiver to perform the activities of daily living that she cannot perform due to her limited motor
`
`functions, including but not limited to eating, bathing, toileting, and other daily needs.
`
`9.
`
`Due to plaintiff's quadriparesis, plaintiff requires the use of a tracheostomy tube to
`
`clean and remove secretions from the airway and to more easily and safely deliver oxygen to her
`
`
`Page 3 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 4 of 23
`
`lungs. Ms. Getman's tracheostomy tube must be suctioned and cleaned regularly so that it
`
`functions properly, allowing Ms. Getman to breath comfortably and safely. Due to her
`
`quadriparesis, Ms. Getman cannot independently suction or clean her own tube, requiring the
`
`assistance of a support person / caregiver to ensure proper and safe breathing.
`
`10.
`
`Due to her motor impairments, plaintiff depends on 24-hour support from a
`
`caregiver to communicate effectively. If she is positioned incorrectly or her tracheostomy is
`
`suctioned incorrectly, she can become unable to speak due to her muscle weakness. Furthermore,
`
`she is unable to use her cell phone or other communication devices independently. Rather, her
`
`support person is necessary to set up her technology devices and position her body so that she can
`
`communicate efficiently and adequately.
`
`11.
`
`Although plaintiff's motor functioning is impaired, she has full sensation
`
`throughout her body. Ms. Getman's medical condition prevents her from sitting up, rising, or
`
`turning over independently. Ms. Getman requires 24-hour support from a caregiver or support
`
`person to reposition her every 15 minutes in order to avoid significant pain from remaining in one
`
`position for too long. Repositioning also is necessary to prevent bedsores or other types of pressure
`
`injuries, which are painful and can result in dangerous infections.
`
`OHSU's Prior Notice of Plaintiff's
`Medical Condition and Need for Accommodation
`
`Plaintiff's disability and need for a 24-hour caregiver and/or support person is
`
`12.
`
`obvious.
`
`13.
`
`Plaintiff is a long-time patient of OHSU hospital and medical clinics. Ms. Getman
`
`has been treated by several OHSU clinics, including but not limited to the OHSU hospital, OHSU
`
`
`Page 4 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 5 of 23
`
`Family Medicine clinic, the Women's Health Clinic at OHSU's Kohler Pavilion, and the Neurology
`
`Neuromuscular Clinic at OHSU's Center for Health and Healing.
`
`14.
`
`Defendant has specifically treated plaintiff's SMA and the details of plaintiff's
`
`medical condition are known to defendant and reflected in the medical records defendant
`
`maintains. At all relevant times defendant knew or should have known of plaintiff's medical
`
`history and disability-related needs.
`
`15.
`
`Beginning in or around 2017, defendant started treated plaintiff's SMA with
`
`monthly infusion therapy, involving injections of a medication known as Spinraza, directly into
`
`the spinal canal. Because this method of administration involves a lumbar puncture, it increases
`
`the risk of an individual developing serious infections, such as bacterial meningitis.
`
`16.
`
`After receiving such a treatment in 2017, plaintiff developed bacterial meningitis
`
`and was admitted to the OHSU hospital for treatment. She responded positively to antibiotic
`
`treatment and recovered quickly.
`
`17.
`
`During her 2017 stay at the OHSU hospital, Ms. Getman was accompanied by her
`
`support person(s) and/or caregiver(s) to provide 24-hour care and assist with disability-related
`
`needs, including Ms. Getman's communication and daily living activities.
`
`The Global Coronavirus Pandemic Reaches Oregon
`
`18.
`
`On March 8, 2020, with confirmed coronavirus cases rising in Oregon, Washington,
`
`and California, the Oregon Governor declared a State of Emergency in regards to the coronavirus
`
`pandemic. That week, restrictions were announced to slow to the spread of the virus, including
`
`limits on gathering size and a two-week closure of K-12 schools.
`
`///
`
`
`Page 5 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 6 of 23
`
`19.
`
`Prior to the pandemic, plaintiff's caregiving team consisted of her mother, her
`
`partner Scott Foertmeyer, and supplemented by paid caregivers outside the home. However, once
`
`the pandemic hit, plaintiff ceased use of care from her mother and paid caregivers outside the home
`
`in order to minimize risk of exposure from COVID-19.
`
`20.
`
`On or around March 13, 2020, plaintiff and her partner and primary caregiver, Mr.
`
`Foertmeyer, began to quarantine together in their home. Recognizing Ms. Getman's heightened
`
`risk of becoming seriously ill or dying were she to contract COVID-19, she and Mr. Foertmeyer
`
`were extremely cautious and did not have contact with any other individuals during this time.
`
`Plaintiff is Admitted to OHSU's Emergency Department
`
`21.
`
`Due to COVID-19, defendant put in place a "no-visitor" policy limiting visitor
`
`access to facilities. The policy did not expressly allow for support persons to assist adults with
`
`physical disabilities, even when necessary to provide effective communication or assist with
`
`activities of daily living. The policy did make express exceptions for certain types of disabilities,
`
`including for patients with "significant developmental delay or dementia," as well as other patients
`
`without disabilities, including a child or baby, patients in labor or with a new baby, and/or patients
`
`during end-of-life care.
`
`22.
`
`On or around March 11, 2020, plaintiff received a dose of Spinraza as an intrathecal
`
`injection.
`
`23.
`
`On or around April 3, 2020, Ms. Getman developed an exceptionally painful
`
`headache and a high fever, symptoms she recognized as consistent with bacterial meningitis due
`
`to her 2017 experience with the condition.
`
`///
`
`
`Page 6 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 7 of 23
`
`24.
`
`On or around midnight on the morning of April 4, 2020, Ms. Getman spoke to on-
`
`call doctors in OHSU's radiology department, who were responsible for administering the Spinraza
`
`treatment, as well as the OHSU emergency department triage, who recommended that she go to
`
`OHSU's emergency department due to the severity of her symptoms. Plaintiff explained that due
`
`to her disability she needed 24-hour caregiver support were she to be admitted to the hospital.
`
`Both doctors declined to confirm that she would be allowed to be accompanied by her caregiver
`
`and/or a support person.
`
`25.
`
`Plaintiff and Mr. Foertmeyer arrived at the OHSU Emergency Department around
`
`2:28 a.m. on April 4, 2010. OHSU's Emergency Department triage nurse noted that plaintiff was
`
`accompanied by her caregiver. Mr. Foertmeyer assisted in transferring plaintiff to a bed, turning
`
`off her ventilator, and managing her wheelchair.
`
`26.
`
`During her time in the OHSU Emergency Department, and consistent with previous
`
`stays in the hospital, Mr. Foertmeyer assisted with Plaintiff’s disability-related needs, including
`
`all of activities of daily living, such as the suctioning of her tracheostomy tube, using the bathroom
`
`off the side of the bed into a bedpan, eating, drinking, taking pills, and frequent repositioning.
`
`27.
`
`Prior to plaintiff being admitted to the hospital, Mr. Foertmeyer also accompanied
`
`plaintiff during her lumbar puncture, which took place in the OHSU hospital. Mr. Foertmeyer
`
`moved through the hospital wing from the Emergency Department to Radiology with plaintiff and
`
`assisted plaintiff with lifting her from the bed to the CT table. He also assisted with placing her in
`
`the correct position so the radiologist could perform the lumbar puncture, and then transferred
`
`plaintiff back to the bed.
`
`///
`
`
`Page 7 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 8 of 23
`
`28.
`
`Plaintiff was treated by OHSU Emergency Department doctor, John A. Thomas,
`
`M.D. Dr. Thomas performed a review of plaintiff's medical records and chart as part of the medical
`
`treatment provided. Dr. Thomas treated plaintiff for bacterial meningitis and admitted plaintiff to
`
`the OHSU hospital for further monitoring and continued management.
`
`29.
`
`Plaintiff also was treated by Melinda Ruberg, M.D. Plaintiff expressed her fear to
`
`Dr. Ruberg of being admitted to the hospital without Mr. Foertmeyer and had confirmed that she
`
`and Mr. Foertmeyer had quarantined at home for three weeks prior to admission.
`
`30.
`
`Although Mr. Foertmeyer was permitted to accompany plaintiff while she was in
`
`the OSHU Emergency Department, plaintiff was informed that if she were to be admitted to the
`
`OHSU hospital, Mr. Foertmeyer would be prohibited from accompanying her and providing
`
`support in the hospital due to defendant's no-visitor policy.
`
`31.
`
`Plaintiff opposed being admitted to the hospital without consideration of an
`
`accommodation for her disability. She continually and repeatedly requested a policy modification
`
`that would allow her to be accompanied by her caregiver from any hospital staff that entered her
`
`room. She was informed that she would have to wait until morning when the issue could be
`
`reviewed by an administrative employee.
`
`32.
`
`Around 3 a.m. on or about April 4, 2020, Ms. Getman received a COVID-19 test.
`
`She requested that Mr. Foertmeyer be tested as well to facilitate her request for an accommodation
`
`and/or modification to OHSU's policies to allow him to stay with her to provide caregiver tasks.
`
`Plaintiff's request was denied. The Emergency Room day nurse made a joke in plaintiff's presence
`
`that if her COVID-19 test came back positive, at least she couldn't get up and run out of the
`
`hospital.
`
`
`Page 8 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 9 of 23
`
`33.
`
`Around 8:00 a.m. on April 4, 2020, Dr. Ruberg reported back to plaintiff from
`
`outside her door that the response from the hospital administration to her request to modify the
`
`policy to provide her equal access to OHSU's services, was a "hard no." Ms. Getman asked for an
`
`explanation of why administration was refusing to accommodate her disability but did not receive
`
`an explanation.
`
`Defendant Denies Plaintiff a Reasonable Modification to its No-Visitor Policy
`
`34.
`
`At or around 3:37 pm on April 4, 2020, Ms. Getman was admitted to the OHSU
`
`hospital and at around 3:57 p.m. she was transferred to a room on the COVID-19 floor. Mr.
`
`Foertmeyer was not permitted to accompany her.
`
`35.
`
`Once admitted to the OHSU hospital, plaintiff continued to request a reasonable
`
`modification to OHSU's no-visitor policy. Plaintiff consistently explained to OHSU hospital
`
`physicians, nurses, and medical staff specifically how she was not getting her needs met. She
`
`requested that her caregiver be permitted to assist her, or, in the alternative, that OHSU provide
`
`another one-on-one caregiver who could stay with her and assist her with her meeting these needs.
`
`36.
`
`Upon her admission on April 4, 2020, plaintiff was examined by OHSU hospital
`
`physician, Timothy L. Herrick, M.D. He noted that plaintiff desired to have as much say in her
`
`care as possible. During this evaluation, plaintiff again requested a modification of the no-visitor
`
`policy. Plaintiff's request was denied. Instead of assisting plaintiff and meeting her disability-
`
`related needs, Dr. Herrick diminished those needs and told plaintiff that he believed she really just
`
`wanted Mr. Foertmeyer with her in the hospital for "other reasons." She reminded Dr. Herrick
`
`that she had been quarantined with Mr. Foertmeyer and that he was the safest support person
`
`available to her. She alternatively requested a one-on-one staff person to assist her. She also
`
`
`Page 9 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 10 of 23
`
`requested an accelerated PICC line placement so that she could be discharged more quickly and
`
`return home where she could be fully supported.
`
`37.
`
`On or about April 5, 2020, plaintiff reported to Dr. Herrick that her needs were not
`
`being met due to the lack of her supper person and/or caregiver. She reported to him that her
`
`pillow had slipped during the night, leaving her in an incredibly painful and uncomfortable position
`
`for several hours and that she couldn't call the nurse for assistance. She specifically informed Dr.
`
`Herrick that her disability-related needs weren't being met by medical staff and she needed her
`
`caregiver or support person and asked if instead she could have a one-on-one staff person assist
`
`her. Dr. Herrick failed to note in the medical records that plaintiff requested an accommodation,
`
`instead stating that plaintiff was missing her partner.
`
`38.
`
`On or about April 6, 2020 on or around 12:28 a.m., plaintiff contacted her primary
`
`care provider's office at OHSU Center for Women's Health via MyChart, complaining that she was
`
`not being appropriately cared for and really needed someone who knows her very specific needs.
`
`Plaintiff stated that the last 48 hours were the worst in her life, she was not getting adequate rest,
`
`was "alone," had begged for one-on-one assistance, and that OHSU would not let her caregiver
`
`help her. Plaintiff asked her OHSU primary care provider to advocate for her safety and for
`
`caregiver assistance. Her primary care provider's nurse declined to assist plaintiff.
`
`39.
`
`A few minutes later, at around 12:41 a.m., and again at 11:33 a.m., plaintiff
`
`contacted her OHSU neurologist, Dr. Chafic Karam, M.D., via MyChart, complaining that she was
`
`not getting adequate medical care without her caregiver. She gave an example of how her needs
`
`were not being met: she had not been fed yet that day, April 6, even though it was 11:30 a.m.
`
`Plaintiff's neurologist contacted plaintiff's nursing staff on plaintiff's behalf. Defendant still
`
`
`Page 10 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 11 of 23
`
`refused to provide a reasonable modification to its no-visitor policy.
`
`40.
`
`On or about April 6, 2020, at on or around 9:20 a.m., plaintiff had a consultation
`
`with an OHSU infectious diseases fellow, Sujeet Govindan, M.D. Plaintiff expressed to Dr.
`
`Govindan that without her caregiver present, she was not getting her medical needs met, including
`
`pressure offloading and performance of ROM exercises.
`
`41.
`
`OHSU referred plaintiff's request for a reasonable modification to OHSU's Adult
`
`Relief Social Worker, Kathryn O'brien, LCSW. On or about April 6, 2020, at or about 12:39 p.m.,
`
`O'brien contacted plaintiff to discuss her request for a reasonable modification to the no-visitor
`
`policy. Plaintiff reported to O'brien that, due to her caregiver not being present, her medical needs
`
`were not being met. Plaintiff explained that she needed one-on-one care 24-hours a day and was
`
`not getting necessary care without her caregiver.
`
`42.
`
`As a result, O'brien spoke with an OHSU patient advocate, "Janna," and relayed
`
`plaintiff's complaints and ongoing request for a reasonable modification to OHSU's no-visitor
`
`policy.
`
`43.
`
`In turn, OHSU's patient advocate forwarded plaintiff's request for a reasonable
`
`modification of OHSU's no-visitor policy to Susan Yoder, Registered Nurse and OSHU Director
`
`of Patient Relations. OHSU, by and through Yoder, again denied plaintiff's request for a
`
`reasonable modification. Yoder did not offer any alternative modifications, such as providing one-
`
`on-one care by OHSU medical staff.
`
`44.
`
`Later that same day, at or around 9:17 p.m., plaintiff was examined by OSHU
`
`Family Medicine physician and associate professor, Jessica Flynn, M.D. Plaintiff again expressed
`
`frustration to Dr. Flynn that she was unable to have her caregiver present with her in the hospital.
`
`
`Page 11 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 12 of 23
`
`45.
`
`On or about April 7, 2020, at or around 8:53 p.m., plaintiff was again examined by
`
`Dr. Flynn. Plaintiff continued to complain and express frustration that OHSU was refusing to
`
`allow her to have her caregiver present.
`
`46.
`
`Between April 4, 2020 and April 7, 2020, on information and belief, several family
`
`members and community advocacy organizations advocated on plaintiff's behalf and contacted
`
`OHSU patient advocates to attempt to assist plaintiff in obtaining a modification of OHSU's no-
`
`visitor policy with no success.
`
`47.
`
`Plaintiff was discharged from OHSU on April 8, 2020. Her discharge records noted
`
`that plaintiff experienced significant frustration with OHSU's strict no-visitor policy and
`
`acknowledged that the policy did not permit Mr. Foertmeyer to be present with plaintiff in the
`
`hospital, despite that he provided the majority of plaintiff's specialized medical care at plaintiff's
`
`home.
`
`48.
`
`At all relevant times, OHSU never permitted plaintiff to have caregiver support
`
`during her stay in the OHSU hospital.
`
`49.
`
`On information and belief, OHSU did in fact make exceptions to its no-visitor
`
`policy for certain groups, including patients with "significant developmental delay or dementia,"
`
`as well as other patients without disabilities, including a child or baby, patients in labor or with a
`
`new baby, and/or patients during end-of-life care. Because OHSU easily made exceptions for
`
`others, accommodating plaintiff would not have posed an undue burden or expense on defendant,
`
`fundamentally altered defendant's services, or posed an undue threat or risk to plaintiff or others.
`
`///
`
`///
`
`
`Page 12 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 13 of 23
`
`The Oregon Legislature requires Hospitals to allow
`Support Persons and OHSU Changes Its Policy
`
`50.
`
`During the 2020 Oregon legislative session, the Oregon legislature passed Senate
`
`
`
`Bill 1606, requiring hospitals in Oregon, such as defendant, to allow patients who need assistance
`
`with activities of daily living when the hospital staff is unable to provide such assistance or is less
`
`effective at providing such assistance, to designate at least three support persons (family members,
`
`guardians, personal care assistants, or other paid or unpaid attendants selected by the patient to
`
`physically or emotionally assist the patient or ensure effective communication with the patient) to
`
`be present with the patient at all times in the emergency department and during a patient's stay in
`
`the hospital, if necessary to facilitate the patient's care.
`
`51.
`
`Prior to the passage of SB 1606, on information and belief, OHSU made no changes
`
`to its visitor policy for individuals with physical disabilities who needed a caregiver and/or support
`
`person for disability-related needs while admitted in the hospital, despite federal law requiring
`
`healthcare entities like defendant to provide reasonable modifications to persons with disabilities.
`
`On information and belief, OHSU changed its no-visitor policy only to comply with Senate Bill
`
`1606. Because Oregon law could be amended or changed at any time, an order to comply with
`
`federal law is required in order to ensure OHSU complies with its obligations under federal law.
`
`Tort Claim Notice
`
`52.
`
`Plaintiff sent defendant timely notice of plaintiff's intent to bring a claim for
`
`damages pursuant to ORS 30.275 on or around September 17, 2020 via certified mail, return
`
`receipt, which was received by defendant no later than September 24, 2020.
`
`///
`
`
`Page 13 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 14 of 23
`
`Injury and Future Harm
`
`53.
`
`During plaintiff's stay at the OHSU hospital from April 4, 2020 to April 8, 2020,
`
`staff and nurses failed to provide Ms. Getman the necessary support that Mr. Foertmeyer would
`
`have been able to provide Ms. Getman as Ms. Getman's caregiver.
`
`54. Without her caregiver present to assist plaintiff with proper repositioning, plaintiff
`
`was left in uncomfortable positions for hours and was repositioned at most two times a day, instead
`
`of being repositioned every 15 minutes as is necessary for her to avoid severe joint pain.
`
`55. Without her caregiver present to assist plaintiff with toileting, plaintiff was unable
`
`to use her preferred method of urinating involving a female urinal and bedpan. Instead, she was
`
`assisted by strangers in using a “pure wick” device, a piece of foam pressed between her labia and
`
`attached to a suction machine. This was humiliating to Ms. Getman and ultimately led to a yeast
`
`infection because it was not properly cleaned and changed regularly enough.
`
`56. Without her caregiver present to assist plaintiff with eating and drinking, plaintiff
`
`struggled to get adequate food and nutrition during her stay and was forced to strategize about what
`
`meal options she could consume as quickly as possible whenever a nurse was available. The floors
`
`she stayed on during her visit were very busy and frequently plaintiff had to go without a meal or
`
`was unable to finish eating because her nurses did not have time to assist her.
`
`57. Without her caregiver present to assist her with tracheostomy care, the necessary
`
`suctioning and other maintenance was often delayed and/or completed in a manner that caused
`
`plaintiff pain and irritation to her throat, which further communicating effectively nearly
`
`impossible.
`
`///
`
`
`Page 14 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 15 of 23
`
`58. Without her caregiver present to assist her with communicating, plaintiff was
`
`unable to effectively communicate with doctors, nurses, and medical staff.
`
`a.
`
`Plaintiff was unable to communicate to staff regarding her medical needs,
`
`including the proper positioning she needed and how to best move her without
`
`hyperextending her contractures and causing her significant pain.
`
`b.
`
`Plaintiff was unable to answer telephone calls from her doctors or nurses,
`
`which delayed her medical care. Ms. Getman missed opportunities to speak with doctors
`
`doing their rounds, and as a result the home infusion team was unable to timely arrange for
`
`her to be discharged to complete her antibiotics treatment at home, and the social work
`
`team was unable to timely address her concerns about how her needs were not being met.
`
`c.
`
`Ms. Getman's inability to speak with medical staff over the phone was
`
`particularly problematic. Due to the need to ration personal protection equipment, OHSU
`
`doctors and others were communicating with patients as much as possible by phone instead
`
`of physically visiting their rooms.
`
`d.
`
`Plaintiff was left at times completely unable to alert the nurses that she
`
`needed assistance. For example, as described above, plaintiff woke up because she needed
`
`to have her tracheostomy suctioned to clear the tube so that she could breathe safely. She
`
`had shifted during her sleep, however, and her pillow slipped. She could no longer reach
`
`the call button the nurse had placed for her. Because of her position, she was also unable
`
`to speak loudly enough to voice-activate her cell phone to call for assistance. This incident
`
`left her with lung pain and difficulty breathing for several hours.
`
`///
`
`
`Page 15 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 16 of 23
`
`59.
`
`Defendant's actions have caused plaintiff non-economic damages, including but not
`
`limited to pain and suffering, emotional distress, and humiliation.
`
`60.
`
`Due to plaintiff's medical conditions, she is likely to need hospital care in the future.
`
`Plaintiff would, in the absence of continued discrimination and mistreatment of the type described
`
`above, seek that care at OHSU.
`
`61.
`
`Unless enjoined, defendant will continue to engage in the unlawful acts of
`
`discrimination described above. Plaintiff has no adequate remedy at law. Therefore, plaintiff is
`
`entitled to injunctive relief.
`
`62.
`
`Plaintiff has mitigated her damages.
`
`FIRST CLAIM FOR RELIEF
`Disability Discrimination under Section 504 of the Rehabilitation Act
`29 U.S.C. § 794
`
`63. Plaintiff realleges each and every paragraph above and incorporates the same
`
`
`
`herein.
`
`64. On information and belief, defendant receives federal financial assistance,
`
`including payments by Medicare and Medicaid, research and other grants, and support from other
`
`federal programs.
`
`65. At all relevant times, plaintiff had a physical impairment that substantially limited
`
`a major life activity.
`
`66. At all relevant times, plaintiff was qualified to receive health services and treatment
`
`from defendant.
`
`67. At all relevant times, defendant knew or should have known of plaintiff's disability
`
`and disability-related need for accommodation and modification of defendant's policies.
`
`
`Page 16 – COMPLAINT
`
`
`
`
`
`
`SHENOA PAYNE
`ATTORNEY AT LAW
`735 SW FIRST AVE, SUITE 300
`PORTLAND, OR 97204
`(503) 914-2500
`www.paynelawpdx.com
`
`
`

`

`Case 3:21-cv-01408-SB Document 1 Filed 09/23/21 Page 17 of 23
`
`68. Defendant unlawfully discriminated against plaintiff on the basis of plaintiff's
`
`disability, in one or more of the following ways:
`
`a.
`
`Excluding plaintiff from participation in and/or denying plaintiff the
`
`benefits of the services, programs, and/or activities of defendant's services, programs,
`
`and/or activities;
`
`b.
`
`Failing to make reasonable modifications in policies, practices, or
`
`procedures, when such modifications were necessary provide plaintiff full and equal access
`
`to defendant's services, programs, or activities, and when such modifications would not be
`
`unduly burdensome and would not fundamentally alter the nature of services provided by
`
`defendant;
`
`c.
`
`Failing to provide as equally an effective method of communication as i