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Wagner by Wagner v. Fair Acres Geriatric Center

filed: March 15, 1995.

MARGARET C. WAGNER, BY HER NEXT FRIEND GEORGE M. WAGNER
v.
FAIR ACRES GERIATRIC CENTER MARGARET WAGNER, BY HER NEXT FRIEND, GEORGE M. WAGNER, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ. No. 93-cv-2708).

Before: Sloviter, Chief Judge, Mansmann and Alarcon,*fn* Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

The general issue we address is whether Fair Acres Geriatric Center, a county-operated intermediate care nursing facility, violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, when it denied admission to Margaret C. Wagner, a 65 year old woman afflicted with Alzheimer's disease. Although Fair Acres admits Alzheimer's patients, it denied admission to Mrs. Wagner because it determined that its facility and staff could not accommodate the behavioral manifestations of her disease.

The jury was asked to decide whether, despite her handicap of Alzheimer's disease, Mrs. Wagner was "otherwise qualified" for admission to Fair Acres within the meaning of section 504, including any reasonable accommodation Fair Acres was required to make. Following the jury verdict in favor of Mrs. Wagner, the district court granted Fair Acres' motion for judgment as a matter of law, and conditionally granted its motion for a new trial.

We find that there was legally sufficient evidence to support the jury's verdict. Thus, we will vacate the district court's grant of judgment as a matter of law for Fair Acres. We are uncertain, however, that given the correct legal standards, the district court would have exercised its discretion in finding that the verdict was against the great weight of the evidence. Thus we will also vacate the district court's conditional grant of Fair Acres' motion for a new trial and remand for reconsideration of this motion.

I.

In 1988, at age 58, Margaret Wagner was diagnosed as suffering from Alzheimer's disease, a chronic degenerative neurological disorder that impairs intellectual functioning. Alzheimer's is associated with and has a devastating effect on intellectual functions including memory, recognition, comprehension and basic functional ability. As the disease progresses, basic skills are lost, such as the ability to feed, dress, groom or bathe oneself. Mrs. Wagner suffers from a particularly difficult, but not unique, form of Alzheimer's disease which is characterized by screaming, agitation and aggressive behavior.

Initially, Mrs. Wagner was cared for by her husband, assisted by his two adult daughters and by visiting nurses supplied through the County Office of Services to the Aging, who provided care approximately 27 hours a week. In the summer of 1992, however, Mrs. Wagner suffered a marked deterioration in cognitive functioning and behavior associated with her dementia. As a result, her family could no longer satisfactorily care for her at home.

On August 23, 1992, Mrs. Wagner was admitted to Dowden Nursing Home, a private facility located in Newton Square in Delaware County, Pennsylvania.*fn1 On September 2, 1992, she was transferred from Dowden to the Wills Geriatric Psychiatry Program operated by Thomas Jefferson University Hospital, due to Mrs. Wagner's severe episodes of agitated behavior and confusion.

On September 16, 1992, Wills made an initial referral for Mrs. Wagner to be admitted to Fair Acres Geriatric Center. Fair Acres is a 900-bed skilled intermediate nursing facility operated by the Delaware County Board of Institutional Management, licensed by the Pennsylvania Department of Health and certified under Titles 18 and 19 of the Social Security Act. Fair Acres receives county, state and federal funding, including Medicare and Medicaid funding. At least 98% of its patients are admitted under medical assistance.

Fair Acres' stated mission and goal is to provide care primarily for the geriatric community. Approximately 60% of its patients suffer from Alzheimer's disease or some other form of dementia. Although it has a staff-to-patient ratio of one to eight, it is not staffed or equipped to handle psychiatric residents. Accordingly, if an applicant for admission poses a threat of injury to himself or others, the application is rejected. An applicant's psychiatric history is reviewed to determine (1) if the applicant's primary diagnosis is medical, warranting nursing home placement and (2) if the applicant can be absorbed comfortably and appropriately into Fair Acres' geriatric population. See Fair Acres' admission's guidelines containing its "Psychiatric Policy." (A. 676).

On September 16, 1992, upon receiving Mrs. Wagner's application for admission, Fair Acres' Admissions Committee*fn2 made an initial determination that Mrs. Wagner was not then suitable for admission, but placed her application on "hold" pending further information regarding her condition. The Committee met again on October 8, 1992 and designated Mrs. Wagner's application as "medically disapproved," acting on the recommendation of its psychiatric consultant, Dr. Satyendra Diwan, that Mrs. Wagner was not appropriate for admission due to the behavioral problems she was exhibiting at Wills.

Between Mrs. Wagner's second and third evaluations, Linda Hadfield, Fair Acres' admissions RN, visited Wills to speak with Mrs. Wagner's nurses and staff and to observe Mrs. Wagner firsthand. Mrs. Wagner was put on "hold" again after the third admissions committee meeting on October 29, 1992. Dr. Diwan's notes in the "comments" area of Mrs. Wagner's October 29th evaluation form indicated that Mrs. Wagner "needs more time" and was "not appropriate for Fair Acres." (A. 226-227).

On December 30, 1992, due to contradictions in the documentation from Wills that had been submitted to Fair Acres, Ms. Hadfield made a second visit to Wills and on January 6, 1993, Dr. Diwan evaluated Mrs. Wagner for a fourth time. After reviewing Wills' progress reports, Dr. Diwan noted that Mrs. Wagner was still agitated, confused and irritable as late as December 29, 1992, but recommended a further evaluation in six to eight weeks. Finally, on February 17, 1993, a fifth evaluation took place. Although Wills' hospital records indicated that Mrs. Wagner's behavioral problems had improved slightly, the records showed that she continued to experience episodes of combativeness, agitation and assaultiveness on a daily basis. Under "comments," Dr. Diwan noted that Mrs. Wagner was a "borderline case and will not fit into our milieu." (A. 232). Accordingly, Mrs. Wagner was again denied admission to Fair Acres.

On April 12, 1993, approximately two months after her last evaluation by Fair Acres, Mrs. Wagner was admitted to Easton Nursing Center. Easton Nursing Center is located approximately 85 miles from the home of Mrs. Wagner's husband and children. Because this represents a commute by car of one and one-half hours each way, the number of visits between Mrs. Wagner and her husband and children was severely curtailed. While Mrs. Wagner was at Wills, she was visited by her husband on a daily basis unless he was ill. Due to the fact that her husband has vision only in one eye, he was unable to make the trip to Easton independently. Consequently, while Mrs. Wagner was at Easton, her family was only able to visit her twice a week.

On May 21, 1993, Margaret Wagner, by her next friend George Wagner, filed a two count complaint in United States District Court for the Eastern District of Pennsylvania. Count One alleged that Fair Acres had discriminated against Mrs. Wagner on the basis of her handicap, the behavioral aspects of her dementia, in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by refusing to admit her to its nursing facility. Mrs. Wagner sought a declaration that the acts of Fair Acres had violated her rights under section 504 of the Rehabilitation Act and sought injunctive relief enjoining Fair Acres from unlawfully excluding her from its facility and directing Fair Acres to admit Mrs. Wagner to its first available bed. She also sought damages and an award of attorney's fees and costs. In Count Two, Mrs. Wagner sought relief pursuant to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, 12131.*fn3

At trial, Mrs. Wagner introduced the testimony of three expert witnesses to support her claim that she was qualified for admission to Fair Acres in spite of the behavioral manifestations of her Alzheimer's disease. Dr. Gary L. Gottlieb, a geriatric psychiatrist and the director of the geriatric psychiatry program at the University of Pennsylvania School of Medicine, testified, based on his review of Mrs. Wagner's medical records, that as early as September, 1992, Mrs. Wagner was appropriate for the type of care provided by a nursing facility such as Fair Acres. Dr. Edward Kim, Mrs. Wagner's treating physician at Wills, testified that Mrs. Wagner could have been accommodated by a nursing home around the third week of October. Finally, Mrs. Wagner introduced the testimony of Dr. Bijan Etemad, a psychiatrist at Easton Nursing Center (where Mrs. Wagner resided at the time of trial), that in his judgment, Mrs. Wagner was appropriate for nursing home care.

Fair Acres argued that Mrs. Wagner's "sustained combative and assaultive behavior distinguished her from Fair Acres' patients and prevented her from being qualified for admission" (Appellee's brief at 15), because its guidelines prohibited it from admitting psychiatric patients. Challenging Mrs. Wagner's expert witnesses' lack of consideration for her need for one-on-one supervision, Fair Acres contended that it is not equipped, due to its staff to patient ratio, to provide one-on-one supervision for prolonged periods of time. It further asserted that Dr. Kim's testimony was at odds with and often contradicted his own progress notes, which indicated that Mrs. Wagner was still exhibiting symptoms of agitation and combativeness at the time when he claimed she became suitable for transfer to a nursing facility.

On September 22, 1993, at the close of all the evidence, Fair Acres moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50. The court reserved its judgment on this motion and submitted the case to the jury on one issue -whether Margaret Wagner was "otherwise qualified" for admission into Fair Acres within the meaning of section 504. After deliberating, the jury returned a verdict in favor of Mrs. Wagner.

On October 5, 1993, Fair Acres renewed its motion for judgment as a matter of law, or in the alternative for a new trial pursuant to Fed. R. Civ. P. 50(b), asserting that Mrs. Wagner was not "otherwise qualified" within the meaning of section 504 because she did not meet all of Fair Acres requirements for admission.*fn4 Fair Acres also contended, for the first time, that Mrs. Wagner had not been discriminated against "solely by reason of handicap."*fn5 On October 7, 1993, Mrs. Wagner filed a motion for a new trial limited to damages only.

On February 15, 1994, the district court entered its order granting Fair Acres' motion for judgment as a matter of law and conditionally granting its motion for a new trial. The district court found that Mrs. Wagner was not an "otherwise qualified" handicapped individual who had been denied a benefit solely by reason of her handicap, because according to the court, she "sought admission to Fair Acres because of her handicap and not in spite of it." Wagner v. Fair Acres Geriatric Center, 859 F. Supp. 776, 782 (E.D. Pa. 1994). According to the court, the decision not to admit Mrs. Wagner was a medical treatment decision made by Fair Acres' medical and health care professionals, and medical treatment decisions are generally immune from scrutiny under section 504. Observing that Fair Acres admits patients suffering from Alzheimer's disease, the court also held that section 504, by its very terms, does not cover discrimination among similarly handicapped persons. Finally, the court concluded that Mrs. Wagner was not "otherwise qualified" for admission to Fair Acres based on the evidence introduced at trial, because "it was not the function of Fair Acres to provide psychiatric services for persons with disruptive psychotic disorders." Wagner v. Fair Acres, 859 F. Supp. at 783. Accordingly, the court concluded that Mrs. Wagner failed to establish a case for relief under section 504.

The district court, in ruling on Fair Acres' motion for a new trial, agreed with Fair Acres that its failure to instruct the jury that some measure of deference should be given to the judgment of the administrators of Fair Acres, constituted prejudicial error. The district court also found that the verdict was against the great weight of the evidence and that a final determination that Fair Acres violated section 504 of the Rehabilitation Act would result in a miscarriage of Justice.*fn6 The district court denied Mrs. Wagner's motion for a new trial on the issue of damages.

On February 18, 1994, Mrs. Wagner filed her notice of appeal from the district court's order entering judgment as a matter of law and conditionally granting Fair Acres' motion for a new trial. Mrs. Wagner did not appeal from the district court's denial of her motion for a new trial on damages.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.*fn7

II.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 4, prohibits a federally funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. Section 504 of the Rehabilitation Act reads in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any ...


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