Hospital denies "a link to the hearing world" under Rehabilitation Act

The Rehabilitation Act and its younger counterpart, the Americans With Disabilities Act, have nooks and crannies which may not be apparent to the casual observer. The Second Circuit has highlighted those nooks and crannies in an interesting case against Staten Island University Hospital which strengthens the protections for the hard-of-hearing. It also strengthens protections for family members of these patients.

The case is Loeffler v. Staten Island University Hospital, decided on October 6. The Loeffler family was at the hospital when the father underwent surgery. The parents are hearing-impaired, and the children, Bobby and Kristy, were in the hospital room following the surgery and wanted an interpreter so they could communicate with their parents. The hospital concedes it had an obligation to provide an interpreter, and the family testified that hospital staff blew off their requests for an interpreter, requiring the father's young son to interpret for the parents. Bobby's assignment as interpreter was quite stressful as he did not understand some of the terms, and he blamed himself when his father had a post-operation stroke.

To win a case like this under the Rehabilitation Act, the plaintiff has to show the hospital was deliberately indifferent to the family's right to proper interpretation services. The Court of Appeals (Jacobs, Wesley and Sand) agrees that the jury can find for the parents. While the Second Circuit has never clarified what constitutes deliberate indifference in this context, it is persuaded by the Supreme Court's ruling in an educational discrimination case, Gebser v. Lago Vista School District, 524 U.S. 274 (1998) which says deliberate indifference requires actual knowledge of the problem and the failure to adequately respond. Also in another context, the Second Circuit has said deliberate indifference "must be a deliberate choice ... rather than negligence or bureaucratic inaction." As the family repeatedly requested an interpreter and the hospital provided none, the jury can find in the parents' favor and the case is sent back to the district court for trial.

The Second Circuit also finds that the family has a case under the New York City Human Rights Law, which state courts have interpreted more broadly than the federal civil rights laws. In other words, on the same set of facts, you can win under the city law but not state-wide law or even federal law. The leading case for this proposition is Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dept. 2009). As the city law allows for "associational discrimination" claims, the parents and children might be able to prevail under the city law; the district court will have to deal with that issue on remand.

But there's more. Over Judge Jacobs' dissent, Judges Wesley and Sand find that the Rehabilitation Act also allow the children, Bobby and Kristy, to win under an "associational discrimination" theory of liability. They were compelled to provide sign language services to their parents and also had to miss school and endure involuntary exposure to their father's suffering as a result of this unpleasant assignment resulting from the hospital's deliberate indifference. In fact, 13-year-old Bobby had to watch his father suffer a stroke and tell his mother about it, an unpleasant experience which caused Bobby significant pain and suffering. Since the children have an independent injury from that suffered by their parents, they can sue the hospital under "associational discrimination." This holding by the Court of Appeals is innovative as shown by the few decisions from around the country which have recognized the associational discrimination theory under the Rehabilitation Act. In any event, even under traditional liability principles, the children can still win since the hospital denied them appropriate interpreter services and the children's inadequate interpretation skills denied the family a full understanding of their father's progress (or lack thereof).

This is a court with few dissenting opinions, but Chief Judge Jacobs dissents from the associational discrimination holding, identifying a slippery-slope that can expose hospitals to liability in less dramatic circumstances. Judge Wesley responds by suggesting that the Chief Judge "seriously misrepresents the children's claims" and that, in fact, "two children were required to provide a service to their parents that federal law says is guaranteed to any hearing impaired patient in a hospital." Accordingly, Judge Wesley writes, "If our dissenting brother thinks that what Bobby and Kristy were forced to do is a 'complimentary service' [of the hospital] ... then he is sadly mistaken. ... It is not the dawn of never-ending liability for the Hospital, it is what Congress required -- a link to the hearing world."