UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT PIERCE DIVISION

Case No. 13-14310-CIV-MARTINEZ-MATTHEWMAN

SETTLEMENT AGREEMENT

1. This Settlement Agreement is entered into by Plaintiff United States of America and Defendants Dr. Hal W. Brown and Primary Care Treasure Coast, Inc. ("PCTC"). For purposes of this Settlement Agreement, Dr. Brown and PCTC are referred to as "Defendants" and Plaintiff United States and Defendants are referred to collectively as the "Parties."
2. This civil action was brought by the United States against Defendants, Dr. Hal W. Brown individually, and d/b/a Primary Care of the Treasure Coast, Inc., and Primary Care of the Treasure Coast, Inc., to address alleged violations of the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. §§ 12181-12189, 12203, and its implementing regulation, 28 C.F.R. part 36.
3. Dr. Brown is a physician and shareholder of PCTC, which provides family medical care, geriatric medicine, and internal medicine in Indian River County, Florida.  Defendant PCTC is a private, for-profit Florida corporation and is located in Vero Beach, Florida.  PCTC is a public accommodation within the meaning of Title III of the ADA, 42 U.S.C. § 12187(7); 28 C.F.R. § 36.104.
4. Susan and James Liese were Dr. Brown’s patients for approximately four years at PCTC, although James Liese had not been seen as a patient since 2007.  They were terminated as patients by Dr. Brown in May 2009 after they retained an attorney to evaluate possible claims of ineffective communication at the Indian River Medical Center (“IRMC”), a hospital at which Dr. Brown had staff privileges, as well as potential claims against two individual physicians.  Those potential claims were related to the hospitalization and surgery performed on Susan Liese at IRMC on November 29, 2007. 
5.  Susan Liese and James Liese are deaf and communicate in American Sign Language and both are individuals with a disability under Title III of the ADA, 42 U.S.C. §§ 12102, 12182(b); 28 C.F.R. 36.104.  However, both Susan Liese and James Liese have obtained medical care and treatment prior and subsequent to the November 2007 admission to IRMC without requesting or obtaining the services of a sign language interpreter. 
6. In its Amended Complaint filed herein, the United States alleges that in 2007, Susan Liese had emergency surgery at IRMC to remove her gallbladder and no sign language interpreter or interpreting services were provided (DE 17).  Further, the United States alleges that, in May 2009, Defendants learned that Susan and James Liese intended to sue IRMC for lack of effective communication during her gallbladder hospitalization, although the specific nature of those claims was unknown to the Defendants in May 2009.  The United States further alleges that Defendants terminated Susan Liese and James Liese as patients because the Lieses intended to sue IRMC for lack of effective communication, as alleged to be required under the ADA. 
7. The United States also alleges that Defendants unlawfully terminated Susan and James Liese as patients because they were engaged in protected activities.  Specifically, the United States alleges that Defendants retaliated in violation of 42 U.S.C. § 12203(a) against Mr. and Mrs. Liese because they asserted their rights under the ADA and Rehabilitation Act of 1973 by pursuing litigation against IRMC for its alleged failure to provide effective communication.  The United States alleges that by terminating them as patients, Defendants coerced, intimidated, threatened and/or, interfered with, Susan and James Liese in their exercise and enjoyment of, and on account of their exercising and enjoying their rights granted and protected by the ADA in violation of 42 U.S.C. § 12203(b).  The United States alleges that as a direct and proximate result of the Defendants’ conduct in violation of 42 U.S.C. § 12203(a) and (b), Susan and James Liese sustained damages, were harmed, and are aggrieved persons. 
8. The Defendants deny these allegations.  Specifically, Defendants dispute whether or not Susan and James Liese requested such an interpreter from the hospital during the November 2007 admission.  The Defendants further allege that Mrs. Liese did not ask Dr. Brown’s partner, Dr. Guy Ulrich, for an interpreter when he admitted her to the hospital on November 28, 2007, nor did she ask Dr. Brown for an interpreter when he cleared her for surgery the following day.  The Defendants also allege that neither Susan nor James Liese requested a sign language interpreter from the Emergency Room physician who initially evaluated Susan Liese, nor from the surgeon or anesthesiologist involved in the surgery itself.  They also dispute any allegations that the IRMC nursing staff was asked to provide such an interpreter.
9. Further, Dr. Brown and PCTC allege that Mr. and Mrs. Liese were terminated as patients as a result of trust issues that jeopardized the continuation of the physician/patient relationship.  Those issues included alleged concerns associated with the possible pursuit of a common law claim for lack of informed consent against IRMC, as well as common law tort claims against Dr. Perry, the surgeon, and Dr. Ortega, the anesthesiologist, unrelated to any ADA claims.  The issues also included trust concerns arising from the failure of Mrs. Liese to raise any communication issues or need for a sign language interpreter with Dr. Brown the morning he cleared her for surgery, and the continuing failure to raise those issues or any related concerns with Dr. Brown over the next one and a half years when she saw Dr. Brown periodically as an office patient. 
10. The Defendants further dispute that Mr. and Mrs. Liese were impaired in their ability to exercise and enjoy any protected rights, or that they were harmed or are aggrieved persons.  In addition, they dispute any claims that Susan or James Liese were damaged as a result of the termination since they were relocating to Palm Beach County in July of 2009, and James Liese had not seen Dr. Brown as a patient since 2007.
11. The Parties agree that it is in the Parties’ interest, and the United States believes it is in the public interest, to resolve this lawsuit on mutually agreeable terms through entry of this Settlement Agreement.
12. This Settlement Agreement is entered into by and between the United States and Defendants, and resolves all allegations set forth in the United States’ October 24, 2013 Amended Complaint in this action, as well as all other ADA claims arising from the termination of the physician/patient relationship between Defendants and Susan and James Liese, and as indicated by the signatures appearing below, the Parties have voluntarily agreed to entry of this Settlement Agreement without further adjudication of any issues raised in the United States’ October 24, 2013 Amended Complaint or the Defendants’ Answer and Affirmative Defenses to the Amended Complaint.
13. Without admitting or conceding that they have violated the ADA, or failed to comply with the following requirements in the past, the Defendants, their officers, agents, and employees agree to fully comply with all provisions of the ADA.  That agreement includes:
1. A willingness to accept individuals with hearing impairments as patients, so long as they otherwise meet appropriate criteria, including without limitation, acceptable third party insurance coverage for medical charges arising from treatment or services they receive as patients of PCTC;
2. An agreement not to discriminate or retaliate against any individual because that individual has opposed in good faith any act or practice that they believe to be unlawful under the ADA;
3. An agreement not to discriminate, interfere, coerce, threaten or intimidate any individual in the good faith exercise or enjoyment of, or on account of their having exercised or enjoyed, any right granted or protected by the ADA and Rehabilitation Act; and
4. Notwithstanding the preceding, it is agreed that the Defendants are not required to accept or provide further treatment to Susan and James Liese as patients; and their failure to accept Susan and James Liese as patients at any point in the future will not be considered a violation of the ADA and/or Rehabilitation Act, nor will any such failure be admissible as evidence of any violation of those Acts or any similar or related statute, rule or regulation, or of this agreement.
14. Within thirty (30) days of entry of this Settlement Agreement, Defendants will:
1. Adopt, implement and maintain the attached ADA Effective Communication Policy, see Exhibit A, and Non-Discrimination/Non-Retaliation Policy, see Exhibit B; and
2. Ensure the each employee review a copy of the (1) ADA Effective Communication Policy; (2) Non-Discrimination/Non-Retaliation Policy. Upon reviewing the aforementioned documents, Defendants will have each employee sign and date an acknowledgment form verifying the employee's review. See Exhibit C.
15. Within thirty (30) days of the entry of this Settlement Agreement, Primary Care of the Treasure Coast will modify its website and new patient forms to include its effective communication policy and shall include a place on the form where patients may request a sign language interpreter or other auxiliary aids but a request does not need to be in writing.           
16. Within ten (10) days of entry of this Settlement Agreement, Defendants will post and maintain a copy of the Notice attached as Exhibit B, in a conspicuous location in the lobby and the front desks, where it can be easily seen and read by members of the public and patients, printed on white paper no smaller than 8 ½" x 11" with 14 point text.  Copies of the Notice attached as Exhibit B will be refreshed as required so they remain easily readable by patients and members of the public.  The Notice will remain posted for the term of this Settlement Agreement.
17. The Parties agree that, as of the date of this Settlement Agreement, litigation is not “reasonably foreseeable” concerning the matters described in paragraphs 1-7.  To the extent that any Party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in paragraphs 1-7, the Parties are no longer required to maintain a litigation hold.  Nothing in this paragraph relieves the Parties of any other obligations imposed by this Settlement Agreement.
18. Failure by the United States to enforce this Settlement Agreement with respect to any of its provisions or deadlines will not be construed as a waiver of the right of the United States to enforce any deadlines and provisions of this Settlement Agreement.
19. This Settlement Agreement does not purport to remedy any violations or potential violations of the ADA or any other federal or state law, other than the violations alleged in the United States’ October 24, 2013 Amended Complaint in the above-titled action or any other violations or potential violations of the ADA involving Defendants’ termination of Mr. and Mrs. Liese as patients.
20. This Settlement Agreement in no way limits Defendants’ continuing responsibility to comply with all aspects of the ADA and all other federal laws, including but not limited to the obligations under Title III of the ADA to ensure effective communication, remove barriers to access when it is readily achievable to do so, and make reasonable modifications in policies, practices, and procedures when necessary to avoid discrimination on the basis of disability.
21. The parties also agree that the entry of the settlement is not considered to be evidence of a violation of the ADA or Rehabilitation Act by Defendants or the existence of damages, nor will it be admissible or useable in any other claim involving an alleged or established violation of the ADA or Rehabilitation Act for any purpose whatsoever, including any claim that any other alleged or established violation constitutes a repeat or subsequent violation.  The Defendants are agreeing to enter into the settlement to avoid any additional legal fees and costs, and they specifically dispute any claims that Susan and James Liese were aggrieved parties, that they were damaged by the Defendants’ actions, or that the Defendants violated the ADA or Rehabilitation Act so as to warrant an award of damages to the Lieses.
22. This Settlement Agreement is binding on parties, and on any successors in interest, assigns, agents, employees, contractors, and all persons acting in active concert or participation with Defendants.  Defendants have a duty to notify any and all successors in interest of this Settlement Agreement and the duties and responsibilities it imposes on Defendants.  In the event any Defendant seeks to transfer or assign all or part of its interest in PCTC, and the successor or assignee intends to carry on the same or similar use, as a condition of sale, Defendant(s) will obtain the written accession of the successor or assignee to any obligations remaining under this Settlement Agreement for the remaining term of this Settlement Agreement.
23. This Settlement Agreement is effective immediately upon its execution by the parties and will remain in effect for one year from the date of entry.  Following the entry of this Settlement Agreement and the parties’ compliance with paragraphs 14-16, the parties will execute a Joint Stipulation for Dismissal of this action with prejudice within twenty (20) days thereto. 
24. Each party will notify the other parties of any dispute or difference regarding interpretation and compliance with this Settlement Agreement, whether willful or otherwise, and will attempt to resolve such dispute informally.  However, in the event of a failure by any Defendant or the Plaintiff to perform in a timely manner any act required by this Settlement Agreement or otherwise to act in conformance with any provision thereof, any party alleging such a failure  may seek to impose any remedy authorized by law or equity, including but not limited to an action requiring performance of such act or deeming such act to have been performed, as well as an award of damages, costs and reasonable attorney’s fees which may have been occasioned by the violation or failure to perform.  In the event that any failure occurs prior to the dismissal of this action as provided for in paragraph 23, they may move this Court to grant any such relief.
25. Any time limits for performance imposed by this Settlement Agreement, other than the termination of the Settlement Agreement, may be extended by the mutual written agreement of the United States and the relevant Defendant without Court approval.
26. Each of the Parties to this litigation will bear its own costs and attorneys’ fees associated with this action, with the exception of an award of costs or attorneys’ fees pursuant to paragraph 24 of this Settlement Agreement.

AGREED AND CONSENTED TO:

FOR PLAINTIFF THE UNITED STATES OF AMERICA:

Exhibit A

It is the policy of Primary Care of the Treasure Coast to not exclude, deny benefits to, or otherwise discriminate against any individual, visitor, patient, participant, applicant, or employee on the basis of disability or perceived disability, including those who are deaf or hard of hearing.  Primary Care of the Treasure Coast is committed to ensuring that people with disabilities, including those who are deaf or hard of hearing, can participate in, have access to, and receive the full and equal enjoyment of the goods, services, facilities, privileges, procedures, advantages, or accommodations provided by its clinic, programs, or activities whether carried out by Primary Care of the Treasure Coast directly or through a contractor or other entity with which Primary Care of the Treasure Coast arranges to carry out its programs and activities.

To ensure effective communication with patients and companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: sign language and oral interpreters, note takers, written materials, assistive listening devices and systems, and real-time transcription services.

If you have any questions regarding our policy or wish to request an accommodation, please contact the front desk at [insert phone number].

Exhibit B

NOTICE TO ALL EMPLOYEES AND PATIENTS OF PRIMARY CARE OF THE TREASURE COAST, INC. NONDISCRIMINATION AND NON-RETALIATION POLICY UNDER THE AMERICANS WITH DISABILITIES ACT

It is the policy of Primary Care of the Treasure Coast that:

- Primary Care of the Treasure Coast will not tolerate or engage in discrimination that violates the ADA.

- Primary Care of the Treasure Coast will ensure effective communication with patients who are deaf or hard of hearing. If a qualified sign language interpreter is needed to ensure effective communication, Primary Care of the Treasure Coast will provide an interpreter at no cost to the patient.

- Primary Care of the Treasure Coast will not retaliate against any person who makes good faith reports regarding potential violations of the ADA, or asserts any rights under the ADA.

Date: ________ ___, 2014          By: ________________________________
                                                            President, Primary Care of the Treasure Coast, Inc

Exhibit C

Primary Care of the Treasure Coast Acknowledgment of ADA Effective Communication Policy and Non-Discrimination/Non-Retaliation Policy

Date:_______________________________

I confirm that I reviewed a copy of the Primary Care of the Treasure Coast’s (1) ADA Effective Communication Policy and (2) Non-Discrimination/Non-Retaliation Policy, and I understand that as an employee, it is my responsibility to abide by Primary Care of the Treasure Coast’s policies and procedures.

If I have questions about the materials presented or Primary Care of the Treasure Coast’s policies and procedures, I understand it is my responsibility to seek clarification from the Human Resources Department.

Employee Signature________________________________________

Date___________________________________________________________

Print name___________________________________________________

 

HR OFFICE: Place a copy of this signature page in the employee’s personnel file.

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