Health Reform WK-EDGE Failure to provide interpreter did not rise to intentional discrimination
Monday, June 29, 2020

Failure to provide interpreter did not rise to intentional discrimination

By Jeffrey H. Brochin, J.D.

Given the swift treatment and discharge of a deaf patient for a minor injury, it was not unreasonable for the hospital to attempt other forms of communication rather than wait to provide an ASL interpreter.

A federal district court in Louisiana has granted the motion for summary judgment filed by Our Lady Of The Lake Hospital, Inc. (OLOL) in an action brought by a deaf patient who claimed he was discriminated against on account of his disability when the hospital offered to provide him with the use of their Video Remote Interpreting (VRI) machine in place of calling out their on-call American Sign Language (ASL) interpreter. The hospital was not required to utilize the services of an ASL interpreter given the nature of his injuries, treatment, and short duration of his ER visit before discharge, and their conduct did not amount to intentional discrimination under the Rehabilitation Act of 1973 (RA) nor under §1557 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) (Lockwood v. Our Lady of The Lake Hospital, Inc., June 15, 2020, Dick, S.).

Demand for ASL interpreter. In July 2017, the patient, who is a deaf individual who communicates in ASL, lacerated his thumb and went to the emergency room at OLOL to receive treatment. He had called his partner to meet him at the hospital, and upon arrival at OLOL, through his partner, he requested an ASL interpreter. The hospital nurse provided deposition testimony that the hospital offered to provide use of their VRI machine, but that the partner was adamant that an in-person ASL interpreter be called. The hospital explained that although they had an ASL interpreter on-call, the type of injury, nature of the treatment and expectation of quick discharge did not warrant calling out the interpreter who likely would take some time to arrive.

Despite the interference by the patient’s partner in the patient’s treatment (security had to be called to deal with the partner), OLOL maintained that he was examined and treated within approximately 15 minutes and discharged within an hour of his arrival. He subsequently filed the instant lawsuit alleging discrimination under both the RA and the ACA, and seeking damages as well as injunctive relief. For the reasons stated below, the court granted OLOL’s motion for summary judgment.

Emotional distress damages. The court referenced the 5th Circuit’s recent decision in which it was held that that emotional distress damages were not available under the Americans with Disabilities Act (ADA) and RA. It also referenced its own recently granted partial summary judgment on claims for emotional distress damages in two other lawsuits involving OLOL wherein the court denied summary judgment, in part, finding that those plaintiffs could recover nominal damages if they proved intentional discrimination on the part of OLOL. Therefore, the instant patient would not be entitled to recover any damages other than nominal damages if he carried his burden of proving intentional discrimination.

Determining intentional discrimination. The court next restated the basis under which a hospital can become obligated under the RA to provide auxiliary aids, including the requirement that a provider shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessaryto afford such persons an equal opportunity to benefit from the service in question. The court noted that although there was no specific standard as to intent, there existed the requirement that the patient prove something more than deliberate indifference to show intent.

The process of determining whether an entity subject to the RA has provided appropriate auxiliary aids where necessary is inherently fact-intensive, and courts have clarified that this does not mean that every request for an auxiliary aid that is not granted precludes summary judgment or creates liability under the RA, and, that the simple failure to provide an interpreter on request is not necessarily deliberately indifferent to an individual's rights under the RA.

No finding of intentional discrimination. Whether a particular aid, such as providing an ASL interpreter, is effective in affording a patient an equal opportunity to benefit from medical treatment largely depends on context, including, principally, the nature, significance, and complexity of the treatment. The court found that the evidence demonstrated that the patient was offered appropriate auxiliary aids, but that his partner who accompanied him to OLOL on the date of the incident, flatly rejected them. Yet, despite the interference by the partner in the patient’s treatment, he was examined and treated within approximately 15 minutes and discharged within an hour of his arrival. Therefore, the evidence demonstrated that OLOL attempted to make a reasonable accommodation to ensure effective communication, but that the patient, through his partner, refused such accommodation.

Furthermore, the law did not require that OLOL provide an ASL interpreter upon demand, use of the VRI would have provided a more expedient method for triage and evaluation of the patient’s medical emergency. Therefore, the patient could not prove that OLOL intentionally discriminated against him based on his disability, and OLOL’s motion for summary judgment was granted.

The case is Civil Action 17-509-SDD-EWD.

Attorneys: Andrew David Bizer (Bizer Dereus, LLC) for Joseph Lockwood. Douglas K. Williams (Breazeale Sachse & Wilson, L.L.P.) for Our Lady of the Lake Hospital, Inc.

Companies: Our Lady of the Lake Hospital, Inc.

Cases: CaseDecisions AccessNews GeneralNews QualityNews LouisianaNews NewsFeed

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