In going through my cases in my blog pipeline, I decided to blog on the case of Basta v. Novant Health Inc. It was decided on December 27, 2022, and it is a published decision from the Fourth Circuit. It is a case concerning the effective communication obligations of hospitals to their patients and to the family members of those patients. The case is also about what do you have to show to get compensatory damages under Rehabilitation Act. After the opinion was issued, the parties reached a confidential settlement, so I do not know what the settlement terms are. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that damages under Rehabilitation Act were plausibly pled; that plaintiff was not the patient doesn’t matter; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion).

 

Neil Basta sought medical care for his pregnant wife at Novant Health Huntersville Medical Center (Novant Health) from June 2, 2017 to June 4, 2017. Am. Compl. ¶ 5. Basta is a “profoundly deaf individual,” with “limited proficiency in written English,” whose chosen form of communication is American Sign Language (ASL). Am. Compl. ¶¶ 13-14. Because of these limitations, Basta “requires auxiliary aids and services to communicate effectively in a medical setting.” Am. Compl. ¶ 14.

Mrs. Basta, who is not deaf, had experienced life-threatening complications that caused her to become unconscious during her first childbirth. Am. Compl. ¶ 32. When she was again expecting, Mr. Basta sought to act as her healthcare proxy. In that capacity, he would communicate with the hospital during Mrs. Basta’s second childbirth in the event that his wife could no longer advocate for herself. See Am. Compl. ¶¶ 30-33. Novant Health has a section on its website entitled “Interpretive Services,” which states that:

If you or your family have special communication needs, we offer free interpreter services, which include: Foreign language interpreters for those with limited English proficiency, Sign language interpreters, Oral interpreters, TTY and other services for deaf or hard-of-hearing individuals. When you arrive at one of our Novant locations, if you or your 313*313 family need assistance from an interpreter, let our staff know. Am. Compl. ¶ 10.

Prior to June 2, 2017, Basta contacted Novant Health to request that he be provided with a qualified ASL interpreter when the couple arrived for the birth. Am. Compl. ¶ 16. According to the complaint, a Novant Health staffer assured him that there would be an in-person ASL interpreter if Basta contacted the hospital when they were on their way to the facility. Am. Compl. ¶ 17.

When Mrs. Basta went into labor, Mr. Basta contacted Novant Health to advise them that he was bringing his wife into the hospital. Am. Compl. ¶ 18. At that time, he repeated his request for an interpreter. Id. However, the staff member Mr. Basta spoke to said that he had to wait until the time of arrival at the hospital to request an interpreter. Id. Upon arriving at the hospital, Basta and his wife reiterated their requests. Am. Compl. ¶ 19. Novant Health staff advised them that they were “working on it.” Id.

Novant Health staff then provided Mr. Basta with a Video Remote Interpreting device (VRI), which allows deaf people to communicate with an interpreter via streamed video over the internet. Am. Compl. ¶ 20. Federal regulations require that VRI services have a high-speed internet connection to deliver the high-quality images that enable deaf users to see the sign language properly. 28 C.F.R. § 36.303(f). According to the complaint, this VRI device malfunctioned. It was “blurry, choppy, and did not have a clear enough picture” for Basta to communicate with a remote interpreter. Am. Compl. ¶ 20. Hospital staff then brought a second VRI device into the room. Am. Compl. ¶ 21. However, this device malfunctioned in the same manner. Id. Further, the hospital staff plugged the device into an electrical outlet away from his wife’s hospital bed, which required Basta to leave his wife’s bedside to use it. Id.

After the second VRI device malfunctioned, Novant Health did not provide a live in-person interpreter or any other auxiliary devices for Basta for the rest of the stay. Am. Compl. ¶ 22. He made repeated requests for interpreters during this time, but none were provided. Am. Compl. ¶ 26. Instead, Novant Health required Basta to communicate with doctors and staff via lip-reading, a method of communication which Basta is unable to fully understand. See Am. Compl. ¶ 2. Basta claims he was thus unable to comprehend what was happening throughout the delivery process and was unable to ask questions to hospital staff. Am. Compl. ¶ 23.

Neil Basta then filed a lawsuit alleging violations of §504 to Rehabilitation Act, §1557 of the patient protection and affordable care act, and title III of the ABA. He sought declaratory and injunctive relief under the ADA and compensatory damages under the Rehabilitation Act and the affordable care act. The District Court held that deliberate indifference could only be found if the plaintiff had alleged systemic and pervasive problems rather than an isolated incident related to the malfunctioning of the VRI devices. Since the allegation concerned only an isolated occurrence of malfunctioning VRI devices, the District Court found that he failed to make out a claim entitling him to compensatory damages under Rehabilitation Act. The court applied the same reasoning to the affordable care act claim. Plaintiff dropped the injunctive relief claim by failing to object to the magistrate’s recommendation with respect to injunctive relief.

II

Court’s Reasoning That Compensatory Damages under the Rehabilitation Act Were Plausibly Pled

 

1. Establishing a prima facie violation of the Rehabilitation Act against a private entity taking federal funds means showing that the plaintiff is: 1) a disabled individual; 2) otherwise qualified to participate in the offered activity or to enjoy its benefits; 3) excluded from such participation or enjoyment solely by reason of his or her handicap (disability); and 4) that the program administering the activity receives federal financial assistance.
2. With regards to 1(3), immediately above, citing to the case that we discussed here, one way of showing an exclusion from participation or enjoyment solely by reason of his or her disability is to show that the hospital failed to adequately accommodate a hearing-impaired (“hearing-impaired,” is the term used in the decision, though I would not use it myself. I would have used in this case “Deaf),” individual by providing ineffective auxiliary aids under the Rehabilitation Act.
3. Recipients of federal funds have to ensure that otherwise qualified handicapped individuals are provided with meaningful access to the benefit that the grantee offers.
4. The Department of Health and Human Services has issued regulations further defining what meaningful access is in the hospital setting and those regulations warrant respect by the court.
5. Those regulations prohibit a recipient of federal funds from providing a disabled individual an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that offered to non-handicapped persons or that is not as effective as the benefits or services provided to others. 45 C.F.R. §84.52(a)(2)-(3). Although those aids, benefits, and services, are not required to produce the identical result or level of achievement for handicapped and non-handicapped persons to be equally effective, they must afford handicapped persons equal opportunity to obtain the same result. 45 C.F.R. §84.4(b)(2).
6. A recipient of federal funds with more than 15 employees must provide appropriate auxiliary aids to persons with impaired sensory skills where necessary to afford such persons in equal opportunity to benefit from the service in question. 45 C.F.R. §84.52(d)(1). These auxiliary aids may include interpreters or other services for hearing-impaired individuals. 45 C.F.R. §84.52(d)(3).
7. Citing to Silva, which we discussed here, the court said that both the statute and regulations make clear that the Rehabilitation Act focuses on the equal opportunity to participate in obtaining and utilizing services in hospital settings.
8. Since the ADA and the Rehabilitation Act are interpreted in lockstep, regulations interpreting the ADA can still be helpful when trying to understand the Rehabilitation Act’s requirements.
9. The ADA regulations at 28 C.F.R. §36.303(c)(1), provides that a public accommodation shall furnish appropriate auxiliary aids and services were necessary to ensure effective communication (emphasis in opinion), with individuals with disabilities. Significantly, an entity choosing to provide interpretive services with VRI must ensure that it meets certain performance standards including real-time, full-motion video over a sufficiently strong wireless network delivering high-quality video images that do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication. A hospital must also adequately train users of the technology so that they may quickly and efficiently set up and operate the VRI. A VRI system not meeting the regulatory standards is not an effective method of making orally delivery materials available to individuals with hearing impairments. 28 C.F.R. §§36.303(f), (f)(1)-(4). All of which means a noncompliant VRI system is not an appropriate auxiliary aid per screen 42 U.S.C. §12103(1)(A).
10. Plaintiffs proving a prima facie violation of the Rehabilitation Act can seek the remedies under title VI of the civil rights act including damages, providing the plaintiff can show intentional discrimination.
11. Citing to the case that we discussed here, most of the Circuit Courts have found that intentional discrimination can be proven with deliberate indifference and the court adopts that approach.
12. A showing of deliberate indifference requires much more than a showing of pure negligence. That is, deliberate indifference lies somewhere between the poles of negligence on one end and purpose or knowledge at the other.
13. Proving deliberate indifference means plausibly alleging that a defendant: 1) knew (emphasis in opinion), that harm to a federally protected right was substantially likely; and 2) failed to act (emphasis in opinion), on that likelihood.
14. When it comes to the failure to provide an effective auxiliary aid, a plaintiff has to show that the defendants knew there was a substantial likelihood that they would be unable to communicate effectively with a Deaf patient or companion but still made a deliberate choice not to provide one.
15. Deliberate indifference does not require some obvious pattern of mechanical failure in auxiliary aids provided by the hospital.
16. Requiring a pattern improperly shifts the emphasis on the Rehabilitation Act from the violation of an individual right at its discrete point in time to widespread violations spanning across multiple people or multiple visits. That just doesn’t work because it is well-known that civil rights statutes exist to protect a single individual from a statutory violation without the need to prove a systemic and pervasive problem. The Rehabilitation Act seeks to provide individual citizens effective protection against discriminatory practices. So, requiring plaintiffs suffering a violation of the Rehabilitation Act to show a long-standing pattern of similar violations defeats that goal.
17. While a history of violations is relevant evidence to proving deliberate indifference, it cannot be equated with the standard itself.
18. Deliberate indifference at its core is an actual notice standard.
19. The simple failure to provide an in person interpreter on request is not necessarily deliberately indifferent to an individual’s rights under the Rehabilitation Act. However, demonstrating that the hospital had notice of a patient’s need for auxiliary aids and failed to provide them despite knowledge that the patient could not effectively communicate without such aids, supports a finding of deliberate indifference.
20. The complaint made a showing that staffers of the hospital both knew of a substantial likelihood that the plaintiff would be unable to communicate without an appropriate auxiliary aid, yet they still made a conscious choice not to provide one.
21. The failure to address the substantial shortcomings of the VRI devices over a three day timeframe despite repeated requests for an interpreter, gives rise to a plausible inference of deliberate indifference. More specifically, the complaint alleged: 1) Basta is a “profoundly deaf” individual who requires “auxiliary aids and services to communicate effectively in a medical setting.” Am. Compl. ¶¶ 3-4; 2) Basta alleged that he alerted Novant Health of his need for an interpreter well in-advance of his arrival, pursuant to its policy of providing free interpreter services to the hearing-impaired. Am. Compl. ¶¶ 10, 16; 3) Hospital staff allegedly stated it would comply with that request. Am. Compl. ¶ 17; and 4) Basta then again told Novant Health of his need for an interpreter on his way to the hospital. Am. Compl. ¶ 18.
22. The VRI devices furnished by the hospital would have satisfied the hospital’s §504 obligations if they functioned correctly. However, those devices did not function correctly. If a hospital is going to go with VRI, the VRI must work. Here the plaintiff allegations are that they didn’t. More specifically, both machines were blurry, choppy, and did not have a clear enough picture for him to understand what the remote interpreter was conveying. Further, the second VRI device was plugged in far away from his wife’s bed, forcing him to leave her in order to understand what was going on.
23. The hospital did nothing (emphasis in opinion), to ensure that he could communicate with the staff during his three days at the hospital. The complaint alleged: 1) he made repeated requests for interpreters from June 2 to June 4; 2) he was unable to understand what was happening throughout the delivery process; 3) he was not given the opportunity to ask any questions concerning his wife’s treatment and was thus unaware if she had any medical concerns; 4) after the VRI devices malfunctioned, he repeatedly requested an interpreter; 5) the hospital’s staff requested that he sign a form regarding the malfunctioning VRI machine, which raises a plausible inference that the hospital knew of its inefficacy and of his need for continued interpretive services; and 6) the hospital require Basta to communicate by lip reading, which he alleges that he could not understand.
24. The hospital did nothing (emphasis in opinion), to remedy the situation despite having ample time to do so. In essence, the plaintiff pled a sort of apathy showing the hospital’s indifference to his rights may have been so pervasive so as to amount to a choice.
25. What is an effective accommodation is based upon the abilities of the individual, the nature and complexity of the information exchanged, and the overall context of the situation. So, determining whether an entity subject to the Rehabilitation Act has provided appropriate auxiliary aids when necessary is inherently fact intensive. As a result, more factual development is needed and the District Court erred in dismissing the Rehabilitation Act claim at the motion to dismiss stage.

 

III

That Plaintiff Was Not the Patient Doesn’t Matter

 

1. It doesn’t matter that the plaintiff was not himself the patient.
2. Regulations, in this case under the ADA at 28 C.F.R. §36.303(c)(1), create an obligation to provide effective communication to companions with disabilities.
3. Given the often interlocking nature of the disability statutes, it is easy to see why ADA guidance in their regulations are applicable here. Patients often arrive at hospitals in pain, unconscious, or feeling intense stress. In that situation, which cannot only be confusing but overwhelming, a patient’s companion, often a spouse or a family member, may be the only advocate available. To have that single advocate prevented from communication with the hospital and its staff is to leave the patient stranded. The plaintiff was unable to communicate his wife’s complicated medical history to her doctors during childbirth, despite repeated requests for some effective means of doing so. The situation was a high-risk one for the couple and the medical event one of the highest urgency and meaning.
4. Since the Affordable Care Act claim is predicated on the plausibility of the Rehabilitation Act claim, the court reversed the judgment dismissing that claim as well.

 

IV

Thoughts/Takeaways

 

1. The case settled. We don’t know the details since the settlement was confidential.
2. Auxiliary aids and services requirements extend beyond a hospital’s patient to a patient’s family member as well.
3. We don’t know from the opinion whether the plaintiff’s wife was deaf, hard of hearing, or a hearing person. Regardless, it is safe to assume that his wife was fluent in ASL.
4. Since the Deaf primary/first language is ASL, it makes perfect sense that lip reading is not going to be that helpful to members of that community. Also, even the best lip reader, which my daughter and I are, only get 50% of what is on the lips. That said, facial expressions are critical for the Deaf to place the ASL in context.
5. Two cases that feature prominently in this opinion are ones that we have discussed previously: 1) Silva, here; and 2) Liese, here.
6. If a hospital is going to use VRI machines, the Department of Justice doesn’t mind them at all, the machines have to work. Be aware that the Deaf do not like the machines, and it wouldn’t take much to aggravate such an individual should the machines not be up to par. If the machines are not up to par, this case makes it clear that the hospital has a problem on its hands and needs to shift to ASL interpreting services immediately. As a preventive law matter, a hospital may want to consider developing a system so that for Deaf patients and family members, ASL interpreters are the first option rather than the last.
7. As a result of Cummings, which we discussed here, emotional distress damages are not available under §504 of the Rehabilitation Act. However, I do know that attorneys are trying various ways to get around the Cummings decision. I was on a panel at the Federal Bar Association’s Civil Rights Section Etouffee in New Orleans with Andrew Rozynski, the plaintiff’s attorney in this blog entry and Cummings attorney in the case that was argued before the United States Supreme Court. One such workaround that he mentioned on that panel was consequential damages pursuant to a breach of contract claim. I could certainly see how a breach of contract claim and consequential damages would be a plausible argument in Basta’s case.
8. Very interesting how the court uses italics at various places in the opinion. The court was clearly aggravated by the hospital’s conduct.
9. Deliberate indifference does not require showing an obvious pattern.
10. The Rehabilitation Act and the ADA both focus on individualized analysis. Since every individual is different, it is going to be difficult to get a case thrown out at the motion to dismiss stage because effective communication is so fact intensive.
11. Rehabilitation Act causation is “solely by reason of,” which is not at all the same as “by reason of,” (title II) or “on the basis of,” (title III). See this blog entry.
12. “Handicap,” has long passed from being an acceptable term to describe persons with disabilities, but the term is still found in the Rehabilitation Act. You can also find determine the Fair Housing Act.
13. Deaf, deaf, and hard of hearing (HOH), have very different meanings. Deaf meets the following criteria: 1. ASL first/primary language; 2. Attended a state school for the Deaf; and 3. A hearing loss of 65-120 db; deaf is a hearing loss of 65-120 db; and HOH is anyone else with a hearing loss.
14. Silva talks about really hindering communication as not being effective communication. Much of the court’s reasoning seems to implicitly adopt that standard.