Proving Effective Communication With Deaf Patients

By Don Benson, Esq. and Eric Hoffman, Esq.

When accommodating a deaf patient, what evidence proves effective communication under Title III of the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”) of 1973?

A new Eleventh Circuit case [here] declares that the correct standard examines whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with hospital staff. This focus is on the effectiveness of the communication, not on the medical success of the outcome.

SUCCESSFUL OUTCOME NOT ENOUGH

It is not enough for the hospital to point out that the plaintiff patient could not identify instances where he means of communication resulted in actual misdiagnosis, incorrect treatment or adverse medical consequences. It is not enough for the hospital to point out that there was no evidence that Plaintiffs could not communicate their chief medical complaint or understand a treatment plan and discharge instructions.

On May 8, 2017, the Eleventh Circuit Court of Appeals reversed the District Court’s grant of summary judgment to a Florida hospital system on two plaintiffs’ effective communication claims under the ADA and RA.

Plaintiffs Silva and Jebian are “profoundly deaf” and presented to Baptist Hospital of Miami and South Miami Hospital on numerous occasions for various treatments. They claimed that during those visits they could not effectively communicate with their health providers due to the lack of auxiliary aids or services. On most occasions, Plaintiffs requested on-site American Sign Language (“ASL”) interpreters, but defendants relied on alternative methods, including Video Remote Interpreting (“VRI”) and communicating through written notes or those accompanying plaintiffs.

In order to prevail, “a disabled person must prove that he or she was excluded from participation in or denied the benefits of the hospital’s services, programs, or activities, or otherwise was discriminated against on account of her disability.” Such discrimination occurs when the health care facility “fails to provide appropriate auxiliary aids and services to a deaf patient or a patient’s deaf companion.” The focus should be on the effectiveness of the communication between the health care provider and the patient. “[R]egardless of whether a patient ultimately receives the correct diagnosis or medically acceptable treatment, that patient has been denied the equal opportunity to participate in healthcare services whenever he or she cannot communicate medically relevant information effectively with medical staff.”

What matters is whether the disabled patient was given sufficient aids to ensure the level of communication regarding medically relevant information is substantially equal to that provided to non-disabled patients.

The Court pointed out the wide array of topics that a non-disabled person is able to communicate with their healthcare provider, and held that limiting the required level of communication under the ADA and RA to that which is necessary to only communicate the primary symptoms, a treatment plan, and discharge plan may still result in disabled patients receiving an unequal opportunity to participate in their healthcare.

Applying these standards to the Plaintiffs, the Court found that both Plaintiffs provided sufficient evidence to survive summary judgment. Silva showed that hospital staff relied on communication with her through her friends and family—none of which were fluent in ASL. Further, Silva had to complete forms, including consenting to treatment, without complete understanding of what she was signing. The Court also found that a one-hour delay in providing communication aids through the VRI was insufficient. Further, the VRI system regularly had network problems or was down completely. Likewise, Jebian provided sufficient information to survive summary judgment. He testified to the unavailability of VRI machines and the ineffective communication through his friends and family accompanying him to the hospital.

In order to recover monetary damages, Plaintiffs must prove deliberate indifference by the defendants—that the defendants “knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.”

A BROAD RANGE OF TOPICS COMMUNICATED

In the wake of this decision, it is important for health care providers to make sure that interview and consult notes reflect communications not only describing symptoms and receiving the treatment plan and discharge instructions but also:

• Any prior medical conditions and history;
• Medication the patient is taking;
• Lifestyle and dietary habits,
• Differential diagnoses;
• Possible follow-up procedures and tests;
• Informed consent issues, side effects and costs of potential courses of treatment.

By reinforcing that paperwork shows a broader range of communication more similar to that experienced by non-hearing impaired patients, the hospital can better show that effective communication was provided as required by the ADA and RA.