Health Reform WK-EDGE E.D. Cal.: Deliberate indifference needed for compensatory damages under ACA discrimination rules
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Monday, July 15, 2019

E.D. Cal.: Deliberate indifference needed for compensatory damages under ACA discrimination rules

By Patricia K. Ruiz, J.D.

Hospital staff must be aware that alternative methods of communication are inadequate to make a finding of deliberate indifference under ACA discrimination rules.

Two patients who are deaf and communicate primarily in American Sign Language (ASL) brought suit against Tenet Healthcare Corporation (Tenet) and Doctors Medical Center of Modesto, Inc. (DMC) alleging that Tenet and DMC discriminated against them by not facilitating effective communication during hospital visits in violation of the section 1557 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), among other statutes. The Eastern District of California denied partial summary judgment as to one patient but granted partial summary judgment as to the other, finding that because the second patient did not complain about the use of written communication instead of a live interpreter, no finding of deliberate indifference could be made (Bax v. Doctors Medical Center of Modesto, Inc., July 2, 2019, Drozd, D.).

Provision of ASL interpreters. DMC, a full-service health care facility, maintains policies and procedures to ensure effective communication between hospital staff and persons who are deaf or hard of hearing, including the provision of a qualified sign language interpreter or other aids. Further, they provide guidelines for the initial intake of patients, addressing the needs of non-patient deaf persons, the use of additional facility services, and recordkeeping related to requests for auxiliary aids or services. DMC contracts with local outside agencies to provide live in-person ASL interpreters when needed and employs other auxiliary aids to communicate with people who are hearing-impaired.

DMC admitted the first patient after he visited the hospital for pain and swelling due to infection in his left foot. DMC provided an interpreter for the patient on at least seven occasions throughout various hospital stays spanning one month. For two other occasions, DMC requested an interpreter, but one did not arrive. The patient contended that his physician issued, and DMC staff disregarded, a standing order for a continuous interpreter to be made available. Though DMC staff attempted to communicate with the patient through other methods, the patient contends the methods were not effective. The second patient alleged that DMC failed to provide her with an ASL interpreter during an emergency room visit, despite her need and request. Instead, DMC used alternative methods.

The patients brought suit against DMC and Tenet alleging violation of section 1557 of the ACA, among other statutes. Tenet moved for summary judgment in its favor, arguing that it is an improper defendant in the action. Tenet argues that while its logo may appear on some forms used by DMC, DMC is an indirect subsidiary of Tenet and that no Tenet employees or officials met with the patients or influenced the patients’ care. The court found no evidence presented on summary judgment that Tenet engaged in discriminatory conduct against the patients. Thus, the court granted summary judgment in favor of Tenet as to all claims.

Deliberate indifference. DMC moved for partial summary judgment as to the ACA claim contending that the patients cannot recover compensatory damages under the ACA because DMC did not act with deliberate indifference. To be entitled to compensatory damages under the ACA, the patients must prove intentional discrimination. The standard in this context is deliberate indifference. A defendant acts with deliberate indifference where he (1) had knowledge that a harm to a federally protected right is substantially likely and (2) failed to act upon that likelihood.

That DMC did not provide the first patient with a live interpreter for every request does not prove deliberate indifference on its own. Instead, the patient must show the hospital staff knew there was a substantial likelihood they would be unable to communicate effectively without an interpreter but made a deliberate choice not to provide one. As to the first patient, the court found factual disputes that require a jury or a judge to resolve regarding whether a standing order existed for an in-person interpreter and whether DMC staff deliberately disregarded the order. Thus, the court denied DMC’s motion for partial summary judgment.

As to the second patient’s claim for compensatory damages, DMC contended it was unable to obtain an in-person interpreter because of the late hour and the short period of time the patient was at the hospital. Therefore, the staff attempted to address her communication needs through written means. There is no evidence showing the patient complained contemporaneously about resorting to written communications or that the staff was made aware that written communication was ineffective. Thus, the court found that DMC was not deliberately indifferent by failing to obtain a live interpreter and granted DMC’s motion for partial summary judgment with respect to the second patient’s claim for compensatory damages.

The case is No. 1:17-cv-01348-DAD-SAB.

Attorneys: Andrew Rozynski (Eisenberg & Baum, LLP) for Mark Bax. Andrew W. Russell (Fox Rothschild LLP) for Doctors Medical Center of Modesto, Inc. and Tenet Healthcare Corp.

Companies: Doctors Medical Center of Modesto, Inc.; Tenet Healthcare Corp.

Cases: CaseDecisions AccessNews CaliforniaNews NewsFeed

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