Next week, my daughter is on break and will be making college trips with each of her parents to different parts of the country. Then, all of us will meet up to see both sides of the family at the end of the week. So, I am hoping that I can get a blog entry up next week on either Wednesday, Thursday, or Friday. That said, it is going to be very hectic. So, do not be surprised if a blog entry does not go up next week. I anticipate my next blog entry will be posing a rebuttal to those pushing the medical model of disability in a big way when it comes to physician competency.
Today’s blog entry is a two for one. We are going to discuss two short cases. In the first, we will discuss the case, Nix v. Advanced Urology Institute of Georgia, that we previously blogged on here. The 11th Circuit in an unpublished decision affirmed that case. In the second, we will discuss the case of Heck v. The Copper Cellar Corporation, which presents the interesting question of what happens when you have an ADA disability discrimination case and statewide procedural hurdle for matters arising out of the Covid-19 pandemic. As usual, the blog entry is divided into categories and they are: why plaintiff justifiably appealed the lower court decision in Nix; the 11th Circuit Nix decision; Nix takeaways; Heck facts; Heck reasoning; and Heck takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Why Plaintiff Justifiably Appealed the Lower Court Decision in NIX
Previously, here, we discussed the lower court decision in Nix v. Advanced Urology Institute of Georgia. If you recall, the lower court granted summary judgment to Advanced Urology. In that blog entry, I said that the plaintiff should appeal it for the following reasons:
- While the court found that effective communication was 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 communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
- To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District, which we discussed here, 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 here.
- The court frequently cited to Silva II, here, 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, here, 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 not the same thing.
- Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right was substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it was substantially likely to occur.
The 11th Circuit Nix decision
The 11th Circuit wasn’t having any of it. In particular, the 11th Circuit in an unpublished opinion reasoned as follows:
- The most plaintiff established was negligence in selecting an interpreter and not deliberate indifference to plaintiff’s rights.
- Defendant’s administrative personnel believed that the person she hired was a qualified interpreter.
- Defendant’s administrative personnel was told by a friend of the interpreter that the interpreter was qualified.
- Advanced Urology did not ignore plaintiff’s request for an interpreter.
- Plaintiff simply cannot prove deliberate indifference and therefore cannot recover any monetary damages, whether it be compensatory or nominal.
The takeaways that I mentioned in my prior blog entry with additional modifications and additions, bear repeating.
- 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 IMMEDIATELY. 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 needs a qualified interpreter.
- The court creates a higher standard for deliberate indifference than what was created in Liese, which we discussed here. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here.
- While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
- 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).
- Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear in writing that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present. Make sure the person keeps a copy of that written notification as well.
- 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.
- Since the interpreter was not a qualified interpreter and not bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician in this kind of scenario.
- Another problem I have with this opinion is that it rewards ignorance of the culturally deaf community. Anybody with familiarity of the culturally deaf community would not have hired this particular interpreter in the first place and would have instantly known that the interpreter was not qualified. Yet under this decision, the defendant is rewarded for their ignorance.
- One wonders if an en banc hearing would not be requested in light of the panel ignoring Silva I and its narrowing of Liese. I did not see anything in the docket to suggest that this is happening, at least not yet.
- The decision is unpublished. Even so, while its precedential value is limited, attorneys are going to look at this decision for guidance. Also, depending upon the jurisdiction there are ways that even an unpublished decision could be cited. I suppose the nature of an unpublished decision could be one reason why people focusing on disability rights might hope that an en banc review is not sought. That said, the 11th Circuit is generally very pro-disability rights and how this decision rewards ignorance of the culturally deaf community is not a good thing. Also, the decision severely narrows Silva I and Liese. So, maybe an en banc rehearing request is in order and might be successful.
- Plaintiff asserted claims for violation of the Tennessee Disability Act and the ADA based upon termination of her employment. In particular, she alleged that she was discriminated against because of her asthma and increased risk of serious illness from Covid-19 and that the defendant discharged her rather than accommodate her by limiting her risk of exposure. She sought compensatory damages for lost wages and emotional distress.
- Tennessee has a Covid-19 recovery act containing the following salient provisions: 1) a clear and convincing evidence standard; 2) requirement of a verified complaint pleading with specific facts from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; 3) requirement of a certificate of good faith from plaintiff’s counsel saying that he or she has consulted with a Covid-19 knowledgeable physician duly licensed to practice in Tennessee or in a neighboring state and that the physician believes the Covid-19 was caused by the alleged act or omission of the defendant. Failure to meet the requirements laid out in this particular paragraph of the blog entry results in granting a motion to dismiss with prejudice.
- The Tennessee law does not deprive federal courts of subject matter jurisdiction simply because some of the allegations relate to Covid-19.
- Plaintiff’s claims arise from the alleged discrimination and retaliation related to her asthma.
- While her request for accommodation related to her increased vulnerability to Covid-19, her claims do not arise from Covid-19 for purposes of the Tennessee law.
- The expansive reading of the Tennessee law advocated by the defendant would deprive federal courts of their ability to hear federal claims when there are state legislative procedural hurdles. Such a reading violates the most basic principles of federalism and leads to inconsistent application of federal law and inconsistent access to federal court based upon the forum state’s policy concerning state law claims.
- Plaintiff asserts a federal claim, and therefore the federal court plainly has jurisdiction.
- A lot of states have coronavirus liability laws now. This case shows that such laws are not going to bar federal disability discrimination claims nor should they.
- The decision denies a motion to dismiss. So, a trial is next. Of course, plaintiff will have to get by summary judgment.
- You are going to see a lot of claims dealing with failure to accommodate people who are an increased risk should they get Covid-19, especially in states with anti-mask and anti-vaccine mandates or policy preferences. The EEOC just filed such a claim in Georgia, here, and others are on the way no doubt. In those situations, objective medical science will be critical. Plaintiffs will want to have access to the medical science, which is publicly available, and access to coronavirus experts wouldn’t hurt either.
- Individual cases may go differently depending upon the location you are in. For example, if you are in a jurisdiction that is mandating vaccines and mandating mask wearing, the whole accommodation process can go quite a bit differently. In jurisdictions with anti-mask and anti-vaccine mandates/policy preferences, work from home is going to be something that will have to be seriously considered.
- Definitely read Chevron v. Echazabal, here, and School Board of Nassau County, Florida v. Arline, here. Both of those cases discussed direct threat and direct threat as discussed in those cases has been incorporated into ADA final regulations, here (title I), here (title II), and here (title III).