Hope everyone had a great Thanksgiving. As many of you know by now if you are following me on LinkedIn, my blog was selected for inclusion in the ABA web 100 for 2018. This makes five years in a row for me. Since podcasts and twitter are part of the calculus now, the blog is actually one of the top 33! I wouldn’t do any of this if it wasn’t for my readers and their support. Thank you so much! Also, I encourage you to check out the entire web 100 as there are many excellent resources there. Finally, there are lots of good legal blogs out there, many of which are in my blog roll, that did not make the ABA web 100 for one reason or another. I encourage everyone to check out the blogs in my blog roll as I wouldn’t list them if they were not excellent.

 

In a previous blog entry, we talked about the case of Silva v. Baptist Health South Florida Inc. and how that case is a game changer for the culturally deaf. One of the beauties or frustrations of our system of jurisprudence is that the Circuits are free to go each way they want to go and it is up to the United States Supreme Court to resolve those differences. I thought it would be interesting to explore how a District Court within the Seventh Circuit approached the Silva scenario. Not surprisingly, it is quite a bit different than the 11th Circuit even if it is paying lip service to the 11th Circuit at the same time. The case is Juech v. Children’s Hospital Health System Inc. decided on November 2, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections.

I

Facts (Taken from Opinion Itself)

Plaintiff Alissa Juech has been deaf since birth and communicates primarily through American Sign Language (ASL). (ECF No. 46, ¶ 1.) On the morning of February 5, 2015, Juech took her approximately 3-month-old son, B.J., to the emergency department of Children’s Hospital of Wisconsin. (ECF No. 46, ¶ 35.) Juech’s mother arrived at the hospital at roughly the same time, and Juech asked her to request the hospital provide her with a sign language interpreter. (ECF No. 46, ¶ 36.) Juech had been to Children’s Hospital roughly 10 times before and had requested a sign language interpreter on each of those prior visits. (ECF No. 46, ¶ 28.)

It is Children’s Hospital’s policy to provide interpreters upon request, and it informs patients and families of the availability of interpreters. (ECF No. 46, ¶¶ 17-19, 21.) It is the hospital’s policy to obtain an in-person interpreter if one is available. (ECF No. 46, ¶ 13.) If an in-person interpreter is not available, the hospital will provide a sign-language interpreter through video remote interpreting (VRI). (ECF No. 46, ¶ 22.)

Children’s Hospital initially used VRI—essentially a live web cam—to communicate with Juech and to obtain B.J.’s medical history and chief complaints. (ECF No. 46, ¶ 39.) According to Juech, hospital staff did not know how to set up or use the VRI. (ECF No. 51, ¶ 120.) According to Juech, “[t]he VRI device was rarely utilized during B.J.’s treatment because Children’s Hospital staff did not know how to set it up or use it.” (ECF No. 51, ¶ 121.) She alleges that “[t]he VRI device took several minutes to start up . . . [and] froze constantly.” (ECF No. 510, ¶ 121.) In one instance, Juech used the VRI device while breastfeeding her child, a task she found “exceedingly difficult . . . because she was forced to stand in order to see the machine and sign at the same time, all while holding her child.” (ECF No. 51, ¶ 127.) The hospital then used an in-person interpreter while B.J. continued to be treated in the emergency department; this interpreter also provided services after B.J. was moved to a nursing floor. (ECF No. 46, ¶ 43.) Hospital staff informed Juech that B.J. may have a respiratory virus and that he should stay overnight for observation. (ECF No. 46, ¶¶ 44-45.)

Later that evening Juech’s husband arrived at the hospital and the Jueches were informed that B.J. would be moved to the pediatric intensive care unit. (ECF No. 46, ¶ 50.) This discussion occurred with Juech using an interpreter through VRI, and her husband does not recall the VRI posing any difficulties or Juech having any questions or concerns that were left unresolved. (ECF No. 46, ¶¶ 50-51.)

At other points during B.J.’s hospitalization Juech communicated with medical providers in writing—for example, by way of messages typed on a phone and then shown to the recipient, or by handwritten notes. (ECF No. 46, ¶¶ 68-71.)

An in-person sign language interpreter was present when B.J. was discharged from the hospital on February 7, 2015. (ECF No. 46, ¶¶ 60-61.)

Two years later, in February of 2017, Juech returned to Children’s Hospital with her four-month-old daughter, A.J. (ECF No. 46, ¶ 76.) The hospital provided her with an interpreter through VRI. (ECF No. 46, ¶ 78.) Hospital staff obtained A.J.’s medical history from Juech, although Juech does not recall if it was done using the VRI. (ECF No. 46, ¶¶ 79-83.) A physician later obtained A.J.’s medical history from Juech by way of the VRI. (ECF No. 46, ¶ 92.) Although Juech does not recall how it was communicated to her, she understood that A.J. would be admitted to the hospital for observation. (ECF No. 46, ¶ 88.) Juech requested an in-person interpreter for the following day (ECF No. 46, ¶ 88), stating that the VRI does not work for her (ECF No. 46, ¶ 94) and that she preferred in-person interpreters for questions, rounds, and especially discharge instructions (ECF No. 46, ¶ 96). An in-person interpreter was provided at A.J.’s discharge. (ECF No. 46, ¶ 107.)

Juech brought this action alleging that Children’s Hospital and Health System, Inc. and Children’s Hospital of Wisconsin, Inc. (collectively, “defendants” or “Children’s Hospital”) violated the Americans with Disabilities Act (ADA), 42 U.S.C. §12181 et seq.; § 504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794; Wis. Stat. § 106.52; and the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18116(a). (ECF No. 1; see also ECF No. 28 (amended complaint).) Specifically, Juech alleges that the defendants “failed to provide her with the auxiliary aids and services required to enable effective communication during the hospitalizations of her two infant children in Children’s facilities.” (ECF No. 45 at 1.)

II

Court’s Reasoning

  1. The court notes that a hospital is a place of public accommodation under 42 U.S.C. §12181(7)(F).
  2. The court cites to the ADA’s auxiliary aids and services section at 42 U.S.C. §12182(b)(2)(A)(iii) and the ADA’s final implementing regulations at 28 C.F.R. §36.303(a).
  3. The court cites to 28 C.F.R. §36.303(c)(1)(ii), which discusses that the type of auxiliary aids or services necessary to ensure effective communication varies: 1) by the method of communication used by the individual; 2) by the nature, length, and complexity of the communication involved; and 3) by the context in which the communication is taking place. That regulation goes on to say that the place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication but the ultimate decision rests with the entity subject to title III of the ADA so long as that method results in effective communication.
  4. Citing to the case we discussed here, the court said that whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment depends on context, including the nature, significance, and complexity of the treatment.
  5. Citing to 28 C.F.R. §36.303(c)(3), a hospital cannot require a culturally deaf individual to provide his or her own interpreter, aside from emergencies or when requested by the culturally deaf individual, and cannot rely on a person accompanying the culturally deaf individual to serve as a translator.
  6. 28 C.F.R. §36.303(f) allows a place of public accommodation to use VRI services under certain circumstances.
  7. Rules for the Rehabilitation Act are very similar to the rules for the ADA.
  8. The court was not buying the defense argument that either the ADA or the Rehabilitation Act claim had to be dismissed because the claims were duplicative since the claims may not be at duplicative as they appear at first glance. For example, distinctions between the two laws do exist and it is also possible that one statute might afford relief not available under a related law. Finally, any concern that the pursuit of a similar claim could lead to impermissible duplicate to recovery can be addressed before trial or through appropriate jury instructions.
  9. Children’s Hospital did not have to provide the plaintiff with an interpreter at all times so long as it could provide effective alternative means of communicating with her.
  10. VRI is an acceptable auxiliary aid even in a medical context and written communication may be acceptable, especially for routine matters.
  11. A temporary failure or complication with the VRI does not amount to discrimination because technology is imperfect and the Department of Justice explicitly recognized that. Since it could be expected that it might take some time for an interpreter to arrive at a location needing his or her services, a delay in obtaining and starting up the VRI does not necessarily constitute discrimination.
  12. It is not discriminatory for a hospital to attempt to communicate through written notes only to find that the issue being discussed is to complex for written notes unless the hospital failed to provide an alternative auxiliary aid once it became clear that the initial method of communication was ineffective.
  13. Effective communication is a two-way exchange. That is, just because hospital personnel can get information from the patient does not establish that the patient can get information from the hospital.
  14. Silva holds that persons with disabilities are entitled to exchange all medically relevant information not merely information about primary symptoms, treatment plans, and discharge instructions.
  15. There is only one instance in the complaint where the plaintiff alleges the absence of an adequate auxiliary aid resulting in a lack of communication and whether that instance constitutes a denial of effective communication is not a question that can be appropriately resolved at summary judgment since effective communication matters are so fact intensive.
  16. VRI that consistently results in lags, choppy, blurry, or grainy images, or regular pauses and communication amounts to discrimination if it results in ineffective communication. That is, the VRI problems must be repeated and constant to violate the ADA’s effective communication requirements. Such a question is a question of fact.
  17. The court opts to follow the deliberate indifference standard set forth in the case we discussed here, but goes on to say that deliberate indifference is not present in this case. That is, the plaintiff testified at her deposition that the hospital staff tried to work with her to find solution to any problem she had communicating with them. At her deposition, plaintiff blamed the hospital and not the staff for her communication problems. The court stated: “But her assertion that hospital administration “did not want to pay for a live interpreter” appears to be based entirely on impermissible hearsay. She recounts: “I asked for a live in-person interpreter and they brought the VRI and I said please VRIng in a live interpreter again, and they said that the hospital will not be paying for a live interpreter, so that I had to use the VRI, and I was continuously fighting for that, that an interpreter in person would be there.” (ECF No. 47-1 at 11.) Asked how she knew this, she explained, “The nursing staff told my mother, and my mom interpreted to me and let me know that.” (ECF No. 47-1 at 11.) Although Juech characterizes her mother as interpreting what the nursing staff said, she acknowledges that the statement was made to her mother, not to her. But the court was not presented with any testimony from Juech or her mother as to whether her mother was actually interpreting—that is, relating verbatim something medical staff told Juech (which would not be hearsay)—or simply relaying to Juech what she heard, perhaps with her own inferences and characterizations, which would make the statement hearsay. And the fact that Juech’s mother is not fluent in sign language (ECF No. 47-1 at 18) certainly makes it less likely that the information Juech got from her mother was as a result of verbatim translation.” (Emphasis mine).
  18. Even if the hospital administration did require the use of VRI over an in person interpreter, that does not constitute deliberate indifference. Only if the hospital administrators were aware of the alleged problem with the VRI but demanded its use anyway could a reasonable finder of fact conclude that the defendants were deliberately indifferent, and the plaintiff did not present any evidence to support such a conclusion.
  19. No evidence exists that would allow a reasonable finder of fact to conclude that the staff members regarded the problems of anything other than isolated incidents.
  20. The simple failure to provide an interpreter on request is not necessarily deliberate indifference to an individual’s rights.
  21. With respect to standing, the fact that the plaintiff did return to Children’s Hospital during the pendency of the lawsuit tends to support plaintiff’s contention that she would return in the future. That said, even though there is a possibility based upon her past behavior that she will return to Children’s if her children need emergency medical care or hospitalization, that is not a sufficient real and immediate threat to give her standing for injunctive relief. No evidence existed that the plaintiff had any specific plans to return to Children’s Hospital emergency department or to have a child admitted to the hospital. That is, plaintiff offers only the barest speculation that she will have such a need.

III

Takeaways:

  1. This case cites to both Silva and to Liese, which we discussed here and here. However, it is not reasonable to believe that the District Court’s interpretation of these two cases is anything but a severe narrowing of the 11th Circuit decisions. Accordingly, if I am the plaintiff in this case, I would strongly consider an appeal. I realize that the Seventh Circuit of late has not been the friendliest jurisdiction for persons with disabilities. However, this decision severely narrows the 11th Circuit decisions making for a completely different legal parameter from what prevails in the 11th , which is definitely worth an appeal. Further, as I have mentioned numerous times before, the United States Supreme Court has been very sensitive to the rights of people with disabilities outside of the employment context and should the Seventh Circuit affirm this District Court decision, appealing to the United States Supreme Court may be worthwhile. If the Seventh Circuit were to affirm the District Court’s decision, a Circuit court split would exist even if the Seventh Circuit in its affirmance, assuming it is affirmed, paid lip service to the 11th Circuit decisions.
  2. This District Court decision severely limits Silva and Liese in at least two ways. First, Silva holds that the standard for effective communication is whether the culturally deaf individual was hindered in their communication, a fairly low standard. Second, Liese makes clear that deliberate indifference means something quite a bit different than the way someone usually thinks of the term. That is, was an individual in a position of authority do something about it but did not, also a fairly low standard. Again, if I am the plaintiff here, I would strongly consider an appeal.
  3. The problem with VRI is that you simply don’t know the qualifications of the interpreter you are getting. Depending upon the culturally deaf individual, the conveying of complex of medical information may be beyond the capabilities of the interpreter being seen through the VRI. One thing I learned in representing a culturally deaf individual is that it is absolutely critical to have a qualified interpreter present for many situations because the hearing world doesn’t always translate well to sign language. It is the job of that interpreter to break it down. As a preventive law matter, medical information is complex, and VRI should only be used as a last resort. Finally, a hearing person will not intuitively understand this, and so, a plaintiff may want to consider using an ASL expert to convey this to the judge and jury.
  4. The decision from this District Court makes it extremely difficult for a culturally deaf individual to get an in person interpreter when VRI is available.
  5. If you are representing a hospital and the patient says that it is okay for a family member to interpret for them, just say no. It’s a really bad idea and quite possibly in violation of the ADA’s final implementing regulations. If you are a culturally deaf individual needing medical services and you show up with a family member (after all, even hearing people show up with family members as hospitals), simply do not allow that family member to be interpreting for you with respect to any services provided by the medical provider or by the hospital.
  6. One of the underlying issues with this decision is that there needs to be more awareness among the hearing community just what ASL or sign language interpreters are actually doing when they do their job.
  7. I have read a lot of decisions about standing with respect to injunctive relief, and this particular decision takes a far narrower approach than many. That is worth an appeal as well.
  8. Finally, I note that this is a US magistrate judge decision and so it isn’t clear to me where the appeal lies. Does the appeal go to the Seventh Circuit or does it go to the judge to dismiss the magistrate’s recommendation? Perhaps, one of the litigators reading this blog entry can chime in on this. Regardless, this decision should be appealed either to the District Court judge or to the Seventh Circuit, whichever is applicable.
  9. Title III’s effective communication rule unlike title II’s effective communication rule, does not mandate preference be given to the person with a disability preferred style of communication.
  10. Especially if you are a plaintiff attorney, do not fall for ADA and the Rehabilitation Act being essentially the same so that one can be dismissed because the differences are quirky but can be critical (for examples, scope of coverage- with respect to title III- and causation- with respect to both title II and title III- are different between the two laws).

Finally, as I noted last time, my blog was nominated in the expert category for a best blog by the expert institute. Thanks to all who nominated me. You now have a chance to vote here for it to be a best blog. Also, I can’t say how much I appreciate the opportunity to be in ABA 100 blog for five years in a row. I’m very passionate about blogging on the ADA and related laws, and it’s great to see that it is making such a difference. I don’t plan on blogging week of Christmas or the week of New Year’s. Also, we have to have our greatest hits of 2018. I may have one blog before then.

2 Responses to Deaf Rights Game Changer Blowback: Silva Severely Narrowed by a Court Within Seventh Circuit

Bill,

The history of Silva is important since the Eleventh Circuit reversed summary judgment and remanded for further proceedings. Following remand from the Eleventh Circuit, the hospital moved for and was granted summary judgment on the damages claims for lack of sufficient evidence to create a triable question of fact on deliberate indifference. 303 F. Supp. 3d 1334 (S.D. Fla. 2018), https://scholar.google.com/scholar_case?case=2806146386263649418&q=silva+v.+baptist&hl=en&as_sdt=40006&as_vis=1

Last month the remaining claims for injunctive relief went to trial. The court has not yet ruled, and post trial briefing has focused on standing for injunctive relief in light of alleged changes in circumstances. Presumably given the litigation history, another appeal, including an appeal of the summary judgment ruling on deliberate indifference, may follow. Stay tuned

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