Ensuring Effective Communication with Patients for ADA Compliance

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.


Healthcare providers are required by law to offer appropriate auxiliary aids to hearing-impaired patients. What might be the consequences for failing to do so? The case Silva v. Baptist Health South Florida, Inc., No. 16-10094 (11th Cir. May 8, 2017), addresses that question.

The two plaintiffs in Silva were profoundly deaf. They commenced a civil action against two hospitals and their corporate parent. The plaintiffs alleged that the failure of the hospitals to offer appropriate auxiliary aids as required by the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA), which resulted in unlawful discrimination. The district court (a trial-level court) granted summary judgment in favor of all three defendants, concluding that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. The Eleventh Circuit Court of Appeals reversed and remanded.

On an appeal from a summary judgment award, an appellate court reviews the record created below to determine whether the losing parties (here, the plaintiffs) offered sufficient evidence to avoid summary judgment. In Silva, the Eleventh Circuit concluded that “the record is rife with evidence that, on particular occasions, Plaintiffs’ ability to exchange medically relevant information was impaired.” The plaintiffs had requested that the hospitals provide on-site American Sign Language (ASL) interpreters. Instead, the hospitals relied mostly on an “alternative communication method called Video Remote Interpreting (VRI),” by which deaf patients connect over the Internet with an ASL interpreter at a remote location and who communicates with patient and doctor through a portable screen in a hospital. The record revealed that the VRI devices routinely suffered from technical problems that disrupted communication and that the hospital staff often relied on family members to assist with communication. The district court granted summary judgment because, among other things, the plaintiffs failed to offer proof that the denial of the requested interpreter resulted in “adverse medical consequences” or inhibited their “communication of the ‘chief medical complaint’ or ‘instructions under the treatment plan.’”

In reversing the district court, the Court of Appeals focused on the requirement imposed by law that a hospital provide “appropriate auxiliary aids and services” to a deaf patient “where necessary to ensure effective communication.” A failure to provide effective communication permits injunctive relief in favor of a prevailing plaintiff. Monetary damages are available to a prevailing plaintiff only if she can prove that a hospital was “deliberately indifferent to her federally protected right.”

The Court of Appeals held that the district court had used the wrong standard:

For an effective-communication claim brought under the ADA and RA, we do not require a plaintiff to show actual deficient treatment or to recount exactly what the plaintiff did not understand. Nor is it a sufficient defense for a defendant merely to show that a plaintiff could participate in the most basic elements of a doctor-patient exchange. Rather, the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.

It concluded:

The record is rife with evidence that, on particular occasions, Plaintiffs’ ability to exchange medically relevant information was impaired. Ultimately, however, to win monetary damages—which Plaintiffs seek in addition to equitable relief—Plaintiffs still must show that Defendants were deliberately indifferent in failing to ensure effective communication. The district court did not address this question.

Summary judgment was reversed and the action remanded to determine whether the plaintiffs were entitled to injunctive relief. Moreover, the district court was directed to consider whether the plaintiffs could prove deliberate indifference and be entitled to monetary relief.

The Court of Appeals stressed that a hearing-impaired patient was not always entitled to an in-person interpreter when he or she asked for one: “The hospital ultimately gets to decide, after consulting with the patient, what auxiliary aid to provide… But whatever communication aid the hospital chooses to offer, the hospital must ensure effective communication with the patient.” The record demonstrated that the choice made be the defendant hospitals may not have been sufficient to do so.

The corporate parent argued that it could not be held liable because it was not a medical facility to which the plaintiffs had presented. The Court of Appeals rejected this argument because the parent owned and operated the hospitals, housed the network to which the VRI machines were connected, and applied policies and procedures to the two hospital defendants.

What might Silva teach? First, remember that Silva was a review of a summary judgment award. The decision addressed whether the record demonstrated that genuine issues of material fact existed. On remand, the judge and perhaps a jury will have to decide, after weighing all the evidence presented, whether the plaintiffs are entitled to injunctive relief and damages. Second, effective communication through electronic devices requires devices that work. This implicates information governance principles with regard to the selection, installation, use, and monitoring of those devices. Finally, Silva might demonstrate the need for meaningful dialogue between patients with hearing disabilities—and, for that matter, any disability—and healthcare providers to reach agreement on what might be a reasonable accommodation.

 

**Editor’s note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to electronic information. He is a Senior Counsel with Dentons US LLC. 

1 Comment

  1. My Son is 21. He has High Functioning ASD. He is in College, with a Major in Computers. Science, and Math is his favorite Subjects. However, he has NEVER had Transitional Services from High School, or ACCOMODATIONS ON the COLLEGE CAMPUS that he attends, EXCEPT EXTENDED TIME! He does not have a VR Vocational Rehabilitation Specialist. Therefore, when he graduates this year, He will not be able to acquire and maintain employment.
    As his Mother, and Advocate I have filed Complaints, and Have even gone through an APPEAL, but nothing has been forthcoming.
    What does ADA STIPULATE about a ASD STUDENT, who was in High School under Special Education. Who was forced from High School at the age of 15 due to Severe Bullying (DOCUMENTED), and is a College Student having Major Difficulties in College, because they will NOT Accommodate for his Disabilities, or provide Assistive Technology that he desperately needs?

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