On May 8, 2017, the Eleventh Circuit Court of Appeals issued its opinion in the case of Silva v. Baptist Health South Florida, Inc. This decision is of importance to the health care industry as it establishes the standard under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”) for the sufficiency of communication with hearing impaired persons in conjunction with the provision of medical services.
Plaintiffs in the above-referenced case are two individuals who are deaf and communicate primarily using ASL. The Defendants are two hospitals, Baptist Hospital of Miami, Inc., and South Miami Hospital, Inc., and their parent company, Baptist Health South Florida, Inc. Pursuant to the ADA and Rehab Act, these facilities were required to provide “appropriate auxiliary aids and services” to ensure effective communication with these hearing impaired Plaintiffs.
On numerous separate occasions, Plaintiffs visited the Defendant hospitals. Most often, Plaintiffs visited as patients but, on at least one occasion, a Plaintiff was a patient’s companion. During all such visits, Plaintiffs requested live on-site ASL interpreters. The Defendant hospitals, however, supplied Video Remote Interpreting (“VRI”), an alternative communication method which provides live, internet based ASL interpretation via a portable screen. The VRI machines provided by the Defendant hospitals “routinely suffered from technical difficulties that either prevented the device from being turned on, or otherwise resulted in unclear image quality, thereby disrupting the message being communicated visually on the screen.” During those disruptions, the Defendant hospitals often relied on interpretative assistance from family-member companions or would exchange hand-written notes with Plaintiffs. An on-site ASL interpreter was also provided on some occasions. Plaintiffs alleged that the Defendant hospitals “failed to provide appropriate auxiliary aids to ensure effective communication with hospital staff” and brought suit under the ADA and Rehab Act for injunctive relief and damages.
In analyzing these claims, the District Court ruled for Defendants and denied Plaintiffs recovery “on the grounds that Plaintiffs failed to show any instances where communication difficulties resulted in any actual adverse medical consequences to them, and otherwise failed to articulate what they did not understand during their hospital visits.” On review, the Eleventh Circuit rejected this holding and the substantive standard for liability created thereby. Rather, the Eleventh Circuit stated that:
[f]or an effective-communication claim brought under the ADA and [Rehab Act], 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.
After noting that “the exchange of information between doctor and patient is part-and-parcel of healthcare services” and that “[t]he ADA and [Rehab Act] focus not on quality of medical care or the ultimate outcomes, but on the equal opportunity to participate in obtaining and utilizing services[,] the Court then articulated the new standard for effective communication claims: “whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with hospital staff. The focus is on the effectiveness of the communication, not on the medical success of the outcome.”
While informative, this new standard does not establish a bright line test for determining whether a particular auxiliary aid or service will provide effective communication. As noted by the Court, the determination of whether a particular auxiliary aid or service will ensure effective communication will be “inherently fact-intensive” and will require the consideration of multiple context-specific factors. Moreover, despite this new standard, the health care provider still enjoys a large amount discretion in determining which auxiliary aid or service to provide and is not required to provide on-site interpretation in all circumstances. As the Court recognized, “the ultimate decision as to what measures to take rests with the hospital” and this holding “does not mean that deaf patients are entitled to an on-site interpreter every time they ask for it.” Rather, “[if] effective communication under the circumstances is achievable with something less than an on-site interpreter, then the hospital is well within its ADA and [Rehab Act] obligations to rely on other alternatives.”
Case Information: Silva v. Baptist Health S. Fla, Inc., No. 16-10094 (11th Cir. May 8, 2017).
Denay Brown, Esq.