Today’s blog entry comes out of the Northern District of Georgia, and it involves the question of what is deliberate indifference in effective communication cases. We have talked about effective communication and deliberate indifference numerous times before in the blog. The case of the day is Nix v. Advanced Urology Institute of Georgia198199. By way of full disclosure, I have previously on another matter consulted with local counsel on this case previously but have never consulted with the lead counsel. As usual, blog entry is divided into categories and they are: facts; court’s reasoning introductory matters; court’s reasoning effective communication; court’s reasoning deliberate indifference;; the case is being appealed and should be; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts Lifted Directly from the Opinion (citations are internal to the opinion)

 

Nix is deaf and primarily communicates using American Sign Language (ASL).2 Nix also reads and writes in English.3 Advanced Urology is a medical 1 The following facts are undisputed by the parties or otherwise supported by undisputed evidence in the record. 2 ECF 88, ¶ 1. 3 Id. ¶ 2. practice specializing in urological health.4 Prior to its involvement with Nix, Advanced Urology had treated deaf patients, but did not have an ongoing agreement with an interpreting agency.5 On February 5, 2018, Nix contacted Advanced Urology through a video relay service to make an appointment at its facility in Snellville, Georgia.6 Due to the emergency nature of Nix’s symptoms, the parties scheduled the appointment for February 7.7 Nix did not request an in-person interpreter during this initial call.8 The next morning, Nix called back and requested an interpreter.9 That request was forwarded to Missy Sherling—Advanced Urology’s VicePresident of Clinical Strategy—who, in turn, initiated a call with Steve Karasick and Kelly Brauer, Advanced Urology’s then-Chief Executive Officer and Surgery Center Director, respectively.10 Brauer, Karasick, and Sherling discussed Nix’s request, concluded they did not have sufficient time to procure an interpreter 4 Id. ¶ 3; ECF 89-1, ¶ 16. 5 ECF 89-1, ¶ 18. 6 Id. ¶ 18. 7 Id. ¶ 24; ECF 72 (Nix Dep. Tr. 78:11–21). 8 ECF 72 (Nix Dep. Tr. 81:10–20). 9 ECF 89-1, ¶ 25. 10 Id. ¶ 27. through their usual interpreting agency, and decided to look for other ways to fulfill Nix’s request.11 While attempting to locate an interpreter, Sherling learned that an Advanced Urology employee, Samantha Fazzolare, had a friend, Dalton Belew, who “could do basic signing.”12 Fazzolare did not inform Sherling of Belew’s profession or represent Belew as a trained or professional interpreter.13 Fazzolare provided Sherling with Belew’s contact information.14 Sherling did not, however, conduct any investigation into Belew’s background or qualifications as an interpreter.15 Based on Sherling’s subjective belief that Belew previously interpreted for another medical practice, Sherling and Karasick made the decision to ask Belew to interpret Nix’s appointment.16 Belew agreed.17 Contrary to Sherling’s beliefs, Belew was not certified in ASL,18 had never interpreted in a 11 ECF 66 (Sherling 30(b)(6) Dep. Tr. 15:2–23). 12 Id. at 17:18–18:3. 13 ECF 76 (Fazzolare Dep. Tr. 18:6–19:3). 14 ECF 89-1, ¶ 33. 15 ECF 66 (Sherling 30(b)(6) Dep. Tr. 27:3–21). 16 Id. at 74:18–25. 17 ECF 89-1, ¶ 38. 18 ECF 68 (Belew Dep. Tr. 12:14–16). medical setting,19 and characterized his own skills as “intermediate.”20 Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.21 After securing Belew’s agreement, Sherling called Nix and informed her an interpreter had been secured for her appointment.22 On February 7, Nix and Belew arrived at Advanced Urology for Nix’s appointment. The parties dispute many of the specific details of the appointment. However, the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL. Due to Belew’s struggles, and his wearing of scrubs bearing Advanced Urology’s insignia, Nix became convinced Belew worked as a nurse, not an actual interpreter.23 At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff.24 Belew nonetheless remained in the room while Nix partially undressed and 19 Id. at 13:2–5. 20 Id. at 14:11. 21 Id. at 10:2–12:13. 22 ECF 89-1, ¶ 41. 23 E.g., ECF 72 (Nix Dep. Tr. 118:1–119:3). 24 ECF 89-1, ¶¶ 67–68. underwent two non-invasive ultrasounds.25 At the conclusion of the appointment, Nix and Belew filled out various forms affirming that Belew acted as an interpreter during the entire appointment.26 Advanced Urology ultimately issued Belew a check for $100 for his services.27 After her appointment, Nix and her husband complained to Advanced Urology regarding its decision to use Belew as an interpreter; Advanced Urology apologized and refunded their $40 co-pay for the appointment.2

 

plaintiff filed suit alleging violations of title III of the ADA, §504 to Rehabilitation Act, §1557 of the patient protection and Affordable Care Act, fraud, negligence, and intentional infliction of emotional distress. Of course, summary judgment motions were filed. She sought both injunctive relief and damages.

 

II

Court’s Reasoning Introductory Matters

 

  1. The Affordable Care Act, the ADA, and the Rehabilitation Act all use the same substantive standards.
  2. Plaintiff withdrew her claims for injunctive relief in her response to defendant’s motion for summary judgment.
  3. Plaintiff is a qualified person with a disability.
  4. Plaintiff utilizes ASL at her primary means of communication.

 

III

Court’s Reasoning Effective Communication

 

  1. With respect to whether communication is effective, the question is whether plaintiff experienced an impairment in her ability to communicate medically relevant information with hospital staff with a focus on the effectiveness of the communication and not on the medical success of the outcome.
  2. While perfect communication is not required, communication must still be effective.
  3. Ample evidence could lead a reasonable juror to find the communication between the plaintiff and the interpreter the practice hired to be ineffective. Examples include: the interpreter struggled to communicate even the most basic information, including his own name, during her appointment; the interpreter used incorrect signs for certain words, and the interpreter did not know what to sign or could not understand what plaintiff was attempting to communicate to him.
  4. Frustrated with the interpreter’s performance, plaintiff ultimately abandoned communication through ASL and resorted to self-help by exchanging handwritten notes in English directly with the medical staff.
  5. The 11th Circuit has held that the use of written notes may not be appropriate in the medical setting because such matters involve more complexity, such as communication about medical history or diagnoses, conversations about medical procedures and treatment decision, or communication of instruction for care at home or elsewhere. Written notes are better suited for more basic everyday interactions, such as the purchasing of an item in the hospital gift shop.
  6. The interpreter’s strained efforts in ASL interpretation combined with a mere four pages of handwritten notes created during the course of a three hour appointment, which included two noninvasive ultrasounds, does not constitute effective communications as a matter of law. So, genuine issues of material fact exists as to whether the limited auxiliary aids employed by the defendant impaired plaintiff’s ability to effectively communicate medically relevant information with that staff.

 

IV

Court’s Reasoning Deliberate Indifference

 

  1. Deliberate indifference is an exacting standard requiring showing more than gross negligence.
  2. No requirement exists in federal or Georgia law requiring a medical facility to provide an ASL certified interpreter for deaf patients.
  3. The mere failure to provide a patient with an interpreter is not enough to support a finding of deliberate indifference.
  4. Defendant did attempt to accommodate plaintiff’s last-minute request for an in person interpreter and procured one for her appointment. It is true that the interpreter constituted a poor choice and perhaps the defendant should have more rigorously vetted his qualifications as an interpreter before hiring them.
  5. No evidence exists that the defendant knew that it would be substantially likely that the interpreter could not effectively communicate with the plaintiff and yet did nothing about it.
  6. There is no dispute that the plaintiff ever specifically informed the defendant’s medical staff that she needed or wanted a different interpreter.
  7. Plaintiff did not raise any grievance concerning the interpreter’s performance until after the appointment.
  8. The interpreter believed that he and the plaintiff adequately communicated during the appointment, with the exception of certain medical terminology.
  9. Plaintiff’s medical providers willingly engaged in the exchange of written notes to facilitate communication.
  10. At best, the evidence demonstrates that the defendant should have done more to ascertain the interpreter’s competency in ASL before hiring him, but that is not enough to demonstrate deliberate indifference.
  11. No evidence exists creating a triable issue of fact that the defendant has knowledge that plaintiff’s rights would substantially likely to be violated and yet failed to act.

 

V

 

This Case Is Being Appealed and It Should

 

  1. While the court found that effective communication would not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communicationto a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District180185200, which we discussed here181186201, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here182187202.
  3. The court frequently cite to Silva II, here183188203, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here184189204, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is the exacting standard.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right would substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it would substantially likely to occur.

IV

Thoughts/Takeaways

 

  1. I, with co-counsel, have previously represented culturally deaf individuals, Deaf. From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just have to walk away. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she need a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Silva I and Silva II. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here185190205.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present.
  6. Not sure why the plaintiff withdrew injunctive relief claims. I can say that one reason might be that the plaintiff had no intention of ever returning to that practice for reasons that are perfectly understandable.
  7. A culturally deaf individual need to immediately stop the appointment the minute he or she realizes the interpreter is not qualified. He or she should not wait till the end of the appointment to express those concerns.
  8. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  9. Since the interpreter was not a qualified interpreter and bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician as well in this kind of scenario.
  10. The 11th Circuit has been extremely progressive with respect to the rights of persons with disabilities. In light of Silva I, II and Liese, I like the chances of the plaintiff on appeal, though one never knows.

One Response to Effective Communications and Deliberate Indifference Revisited

Given the current makeup of the eleventh circuit and its recent treatment of deliberate indifference in other doctrinal contexts, if I were writing the brief for the plaintiff, I would begin by identifying the specific point at which the defendant first became deliberately indifferent given the Liese / Silva II standard. Was the defendant deliberately indifferent in retaining the interpreter despite caselaw suggesting otherwise? If not, then when did the failure of the defendant to provide effective communication become deliberate indifference rather than negligence or even gross negligence?

The districct court found a disputed question of fact on effective communication, so given Celotex, the focus on appeal has to be deliberate indifference no matter how you define effective communication.

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