29 U.S.C. §794(a)

I imagine most of us are hung over from watching the election returns this week. Here in Georgia, it is still an open question as to whether there will be a runoff for governor. Here in Georgia; the Secretary of State race is going to a runoff; Democrats gained in the Georgia Senate and in the Georgia House; and counties surrounding Atlanta went blue. Nationally, the Republicans gained in the U.S. Senate and the Democrats took over the House. So, that will change the dynamic quite a bit, especially with the upcoming Mueller findings. At this writing, there were still a couple of suburban Atlanta United States House races that could go either way. It is certainly going to make for an interesting two years until 2020 presidential.

Today’s case is long overdue for blogging. The reason for the delay is that with David Llewellyn, I co-counseled a case involving a culturally deaf client who was not given an ASL interpreter at the Doctor’s office nor was an ASL interpreter present for the culturally deaf client and his culturally deaf wife at the hospital. David and I sued both the doctor and the hospital for failure to provide effective communication under the Rehabilitation Act. The case we are blogging on today, Silva v. Baptist Health South Florida, Inc., was the essential underpinning of our case, which we were able to settle successfully. As usual, the case is divided into categories, and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The plaintiffs are culturally deaf individuals and communicate primarily in American Sign Language. Both can read and write in simple English. One of the plaintiffs communicates with very basic proficiency while the other reads at a fifth grade level. The two hospitals plaintiffs visited are owned and operated by Baptist Health South Florida, and both take federal funds. Both plaintiffs separately visited both hospital facilities numerous times. While visiting the hospitals, they requested live on-site ASL interpreter for most visits. However, the hospital relied primarily on VRI (uses an Internet connected machine with a live ASL interpreter located remotely to communicate with the doctor and patient through a portable screen). During many of the plaintiff hospital visits, the machines routinely suffered from technical difficulties that either prevented the device from being turned on or resulted in an unclear image quality thereby disrupting the message being communicated visually on the screen. When the VRI machine was unavailable or malfunctioned, hospital staff would often rely on family member companions for interpretive assistance or would exchange handwritten notes with the plaintiffs themselves. On some occasions, when the VRI broke down, there was an ASL interpreter that would be called in to assist with communication. All of these instances occurred when the plaintiffs went for care themselves and when one of the plaintiffs accompanied his father to the hospital’s facility for treatment. Plaintiffs sued under both the ADA and the Rehabilitation Act.

II

Court’s Reasoning

1. Under both the ADA and the Rehabilitation Act, to prevail, a person with disability has to prove that he or she was excluded from participation in or denied the benefits of the hospital’s services, program, or activities, or otherwise was discriminated against on account of her disability.
2. Under 28 C.F.R. §36.303(c)(1), an exclusion, denial, or discrimination occurs whenever a hospital fails to provide appropriate auxiliary aids and services to a deaf patient, or a patient’s deaf companion where necessary to ensure effective communication.
3. Citing to the case we discussed here, to recover monetary damages, a person with a disability has to show that the hospital was deliberately indifferent to her federally protected rights.
4. Plaintiffs offered sufficient evidence to support a finding that they would return to defendant’s facilities and that they would likely experience a denial of benefits or discrimination upon the return. For example, Silva testified in a declaration that the defendants have all of his medical records and history, that the hospital was close to his home, and that he had a history of prior care and treatment by that hospital. Jebian, the other plaintiff, testified in the same declaration that he would go to that same hospital as a  companion for his father in the near future due to his father’s ongoing health concerns and required follow-up. Finally, both plaintiffs have attended defendant’s facilities dozens of times in the years preceding lawsuit and both experienced numerous problems with the VRI devices not working at all or failing to transmit a clear screen image.
5. In a footnote, the court noted a factual dispute existed with respect to whether the hospital had a policy in violation of the ADA and the Rehabilitation Act of using VRI across the board even when an in person interpreter was warranted.
6. The appropriate test for evaluating effective communication claims is whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with the hospital staff. The focus is on the effectiveness of the communication and not on the medical success of the outcome.
7. Citing to 42 U.S.C. §12182(b)(1)(A)(ii), 29 U.S.C. §794(a), 45 C.F.R. §84.4(b)(1)-(b)(1)(ii), and 45 C.F.R. §84.52(d)(1), the ADA and the Rehabilitation Act focus not on quality medical care or the ultimate treatment outcome, but on the equal opportunity to participate in obtaining and utilizing services.
8. The exchange of information between doctor and patient is part and parcel of healthcare services. So, regardless of whether a patient ultimately gets the correct diagnosis or medically acceptable treatment, the patient is denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate medically relevant information effectively with medical staff.
9. Under 45 C.F.R. §84.4(b)(2)-final regulations implementing the Rehabilitation Act-auxiliary aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for persons with disabilities, but they must afford person with disability equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the person’s needs.
10. What matters is whether the patient with a disability is afforded auxiliary aids sufficient to ensure a level of communication about medically relevant information substantially equal to that afforded to patients without disabilities.
11. The ADA and the Rehabilitation Act focus on the communication itself and not on the downstream consequences of communication difficulties, which can be remote, attenuated, ambiguous, or even fortuitous. So, claims for ineffective communication are not the same as claims for medical malpractice.
12. Limiting the required level of communication to that necessary to convey primary symptoms, treatment plans, and any discharge instructions may still result in Deaf patients receiving an unequal opportunity to participate in healthcare services when compared to patients without disabilities. After all, when a hearing person goes to the hospital, that person is not limited only to describing symptoms and receiving the treatment planning discharge instructions. Those conversations can and sometimes should include a whole host of other topics, such as any prior medical conditions in history, medications the patient is taking, lifestyle and dietary habits, differential diagnosis, possible follow-up procedures and test, informed consent issue, and side effects and costs of potential courses of treatment. Since a person without a disability had the benefit of such an expansive informational exchange, it is error to conclude on summary judgment that the mere successful communication of the primary symptoms, treatment plans, and discharge instructions is enough to preclude liability under the ADA and the Rehabilitation Act.
13. District Court’s requirement that plaintiffs articulate exactly what they failed to understand imposed too great a burden because it would be exceedingly difficult for a culturally deaf individual to recount a conversation that he or she could not hear. It would be the same as asking a blind patient to describe the contents of materials they cannot read.
14. The proper inquiry under the ADA and the Rehabilitation Act is the examination of whether the hospital provided the kind of auxiliary aids necessary to ensure that a deaf patient was not impaired in exchanging medically relevant information with hospital staff.
15. To be an effective communication, it is sufficient if the patient experiences a real hindrance because of her disability that affects her ability to exchange material medical information with their healthcare providers (emphasis mine). The level of communication to a culturally deaf individual about medically relevant information must be substantially equal to that afforded to patients without disabilities.
16. The task of determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids is inherently fact intensive.
17. The record is replete with numerous instances where both plaintiffs did not receive effective communication. Those influences include: back-and-forth use of written notes when the plaintiff was unable to understand most of what they attempted to communicate; signing forms without explaining what the plaintiff was signing; numerous malfunctions of the VRI devices; delays in obtaining a live interpreter; inability to communicate prior to the set up of the VRI machine, VRI connection not being smooth nor strong enough, and many more.
18. In a footnote, the court noted that the DOJ interpretive guidelines on its regulations explained that the exchange of written notes is not appropriate when the matter involves more complexity, such as communications concerning a medical history or diagnosis, and conversation about medical procedures and treatment decision, or in communication of instruction for care at home or elsewhere.
19. In another footnote, the court noted that the hospital does not get a get out of jail free card because one of the plaintiff’s father communicated effectively with the plaintiff. The ADA regulations at 28 C.F.R. §36.303(c)(3) expressly provides that a covered entity cannot rely on an adult accompanying an individual with a disability to interpret or facilitate communication except in very narrow circumstances not applicable to this case.
20. Since a culturally deaf individual must rely on the slight and sophisticated hand movements of an interpreter depicted on the screen, when the screen image is unclear or becomes choppy, the message is disrupted. Thus, instances of technological failures are corroborative evidence of plaintiff’s assertion that she could not communicate effectively with hospital staff. In a footnote, the court noted VRI services that do not deliver high quality video images by producing lags, choppiness, blurriness or grainy images, or regular pauses and communication for the lack of a sharply delineated image do not comply with 28 C.F.R. §36.303(f).
21. With respect to the other plaintiff, Jebian, numerous instances in the record show that the hospital relied on family members for interpretation and that the VRI machines did not work properly.
22. What matters is the actual quality of the communication between the patient and the hospital staff and not whether technical requirements for VRI machines set forth in regulations were satisfied.
23. The court agreed that while plaintiff may not receive damages for claims arising out of hospital visits beyond the statute of limitation. Nevertheless, those visits are relevant and admissible to show deliberate indifference in order to get damages. In a footnote, the court noted that such evidence is also relevant to the claim for permanent injunction against the defendants allegedly discriminatory policies. Policies may be part of an ongoing alleged violation under the continuing violation doctrine. That is, plaintiffs can rely on hospital visit preceding the limitation period to support their theory that the hospitals policies and practices, which continued through the limitation period, were unlawful.
24. While Baptist Health is the parent company to both hospitals involved in this lawsuit, they don’t get a pass because Baptist Health owns and operates the hospitals the plaintiffs went to. Those hospitals also house the network to which the VRI machines are connected. It also applies its various policies and procedures to the hospitals and affiliated outpatient facilities.

III

Takeaways

1. This case is a 2017 case, but to my mind, it is the most significant case for culturally deaf individuals in the last two years, though I recognize there may be argument over that. Also, nothing in this statement is meant to take away from the incredible work that the National Association of the Deaf has been doing in a variety of cases, many of which we have discussed in our blog.
2. The standard of whether medical communication was impaired or hindered is a low standard.
3. Under this decision, a healthcare provider should be very wary of over relying on VRI devices. Also, the culturally deaf community can’t stand these devices. While the DOJ may or may not be more receptive to VRI devices, I can tell you that over relying on the VRI devices when medical information is complex as it is, is likely to get a culturally deaf individual very very upset, impede medical care, and increase the chance of litigation.
4. As we have discussed previously, effective communication rules have significant differences depending upon whether a private or public entity is involved. If a private entity is involved as discussed here, then there is room for back-and-forth negotiation but effective communication as set forth by this court must occur. On the other hand, if a public entity is involved, then, as discussed here, the public entity must give primary consideration to the preferred way the patient prefers to communicate. Thus, it is theoretically possible that a public hospital has a much higher standard for effective communication than a private hospital does. That said, Silva leads one to wonder just how much of a difference there actually will be with respect to healthcare providers and their patients when it comes to effective communications.
5. If you are a healthcare provider, do NOT rely on family members to interpret for the culturally deaf individual.
6. If you are using VRI machines, make sure your personnel is trained in how to use them and that if anything at all is preventing effective communication with the patient, get an ASL interpreter in there as soon as you can.
7. Absolutely no reason in my mind why this case does not apply to equal force to the legal profession since the concerns expressed by the court are exactly the same when it comes to dealing with legal information.
8. With respect to what it takes to prove deliberate indifference, we discussed that here.
9. For defendants, this case makes clear that getting summary judgment on effective communication cases may be very difficult indeed.
10. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence? That said, depending upon the state you are in, there may be a real issue with respect to the number of ASL interpreters that can interpret at a level enabling effective communication in the medical context.
11. Policies and procedures that discriminate against persons with disabilities may run you into one of the few situations where the court applied the continuing violation doctrine with respect to statute of limitation issues.
12. Did I mention that the culturally deaf community absolutely hates VRI machines and would love to see them completely gone from existence in favor of live ASL interpreters? Another reason for that point of view, is the quality of interpreters when using VRI machines can vary radically.
13. For lawyers, one of the common ways the culturally deaf community communicate with the hearing community is through the use of videophones. That is, the culturally deaf individual uses a video phone to call the hearing person or a hearing person uses his or her regular phone to call the culturally deaf individual. The call is then connected and an interpreter is then translating what the hearing person is saying and vice a versa through the use of ASL. The process is seamless. It is almost as if you are using the regular phone. That said, the interpreters that you get in such a situation may vary radically in their skill level with respect to interpreting complex legal information. That is something you have to be aware of and prepared for. You may have to request a different interpreter. Depending on the information and the stakes involved, you may just have to schedule an in-person meeting. Keep in mind, that whenever you have an in-person meeting, as a lawyer, you are obligated under title III of the ADA to furnish the ASL interpreter for that meeting and you cannot pass on that cost to the client. So, a lawyer, particularly on the plaintiff side, certainly has an incentive to use the video phones whenever possible, but you have to keep in mind its limitations.
14. Finally, it would be wonderful if all the State Bars had a program like Texas whereby solo and small firm practitioners can get reimbursement from the State Bar whenever they need to have an ASL interpreter for a culturally deaf client. Such a program would certainly increase the ability of the deaf community to take advantage of legal services.