Labor & Employment Law Daily Hospital staff may be ‘officials’ or ‘policymakers’ in their treatment of deaf patient, triggering employer Rehab Act liability
Wednesday, August 21, 2019

Hospital staff may be ‘officials’ or ‘policymakers’ in their treatment of deaf patient, triggering employer Rehab Act liability

By Marjorie Johnson, J.D.

A jury could find staff observed the patient struggling to communicate, knew she mostly used sign language and lacked the education to communicate in writing, and deliberately failed to call for an interpreter despite its authority to do so.

Hospital staff members who failed to provide a deaf patient with an American Sign Language (ASL) interpreter, despite her repeated requests during her six-day stay, could have been acting as “officials” or “policymakers” whose conduct could be attributed to the hospital, thus establishing her right to monetary damages for the institution’s “deliberate indifference” to violations of the Rehab Act, the Second Circuit ruled in reversing dismissal on summary judgment. Notably, the hospital’s internal policies required the provision of interpreter services in certain situations, including eliciting medical history, explaining treatment, and giving discharge instructions. Because there was evidence that hospital staff had knowledge of the deprivation of the patient’s right to an interpreter, had the power to cure that violation, and failed to cure it, triable issues existed (Biondo v. Kaledia Health dba Buffalo General Medical Center, August 19, Jacobs, D.).

No interpreter during hospital stay. The profoundly deaf patient went to the hospital after experiencing fainting spells, tightness in her chest, and skipped heartbeats. She and her non-hearing-impaired husband unsuccessfully requested an ASL interpreter from several hospital staff members several times during her six-day stay. They eventually gave up and she communicated mostly by writing and through her husband, who was not a proficient interpreter.

Despite the hospital’s interpreter policy, she was therefore without an interpreter during exams and procedures, and she signed consent forms without understanding what she was signing or what the test entailed. She claimed that during one test she was scared, cried, and at one point asked the doctor if she was going to die.

Claim tossed on SJ. Dismissing her Rehab Act claim on summary judgment, the district court found that she failed to establish deliberate indifference by showing that a hospital official was aware of a potential violation of her rights and failed to respond adequately. In particular, the court found that only the nurse manager’s indifference could be attributed to the hospital, but that the record did not support a finding that she had any knowledge of any such violation.

Violation. On appeal, the Second Circuit first found that the Rehab Act may have been violated, noting that district court itself had acknowledged that a triable issue likely existed on this issue. While the federal law did not specifically require the use of interpreters, a reasonable jury could find that in these particular circumstances, the failure to provide one deprived the patient “an equal opportunity to benefit from” the hospital’s services given her limitations with written English (she read at a fourth-to-fifth grade level), the length of her hospital stay, and the procedures performed and information imparted during her stay.

Deliberate indifference. The appeals court turned to the issue of monetary damages, which were available only if the hospital was “deliberately indifferent” to the potential violation in that someone had actual knowledge of discrimination against her, the authority to correct the discrimination, and failed to respond adequately. Here, the record supported an inference that the staff had actual knowledge of the potential Rehab Act violation since she and her husband repeatedly asked nurses for an interpreter when she first arrived at the hospital and she continued to request an interpreter and expressed her dissatisfaction with written communication by, amongst other things, pointing to words she didn’t understand and shaking her head.

There was also evidence that the doctors and nurses had the authority to call for an interpreter. First, the hospital’s interpreter policy provided that “the department where the patient presents is responsible for initiating interpreter services” and required a department referring a deaf patient to notify the receiving department of the disability. Though it was uncertain who had responsibility for ordering an interpreter, the policy listed phone numbers for contacting interpreter services, indicating that authority to order an interpreter was widely dispersed.

Staff’s authority debatable. The nurse manager’s testimony also indicated that doctors and nurses had the authority to provide an interpreter. For instance, she testified that if a staff member determined that a patient could not communicate effectively, “they would have to go to the [interpreter policy] and get an interpreter and inform the patient that—that we would provide that.” Asked how staff secures a sign language interpreter, she answered that the policy contained a phone number for those services. Accordingly, taken together, the interpreter policy and the nurse manager’s testimony created a triable issue as to whether hospital staff had the authority to correct the deprivation of the patient’s rights by requesting an interpreter for her.

The Second Circuit declined to adopt the Eleventh Circuit’s definition of an official as “someone who enjoys substantial supervisory authority,” finding the requirement to be “unhelpful in the setting of a large, ramified institution where many patients and visitors do not interact with a supervisor, or know how to identify one, much less how to find one.” However, an “official” or “policymaker” must be someone who has some “discretion at a ‘key decision point’ in the administrative process.” Due to the hierarchy of a hospital, “the key decision point will vary with the decision to be made, and the official or policymaker with discretion to make the decision will vary accordingly.” But that observation was already embedded in the requirement that an official have “authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf.”

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