Monday, August 26, 2019

Buffalo hospital may be liable for failing to provide interpreter for hearing-impaired patient

The Court of Appeals has reinstated a disability discrimination case filed by a hearing-impaired woman who was denied interpreter services during her hospital stay.

The case is Biondo v. Buffalo General Medical Center, issued on August 19. Plaintiff was born deaf and has limited reading skills. She also cannot lip-read well and has unintelligible speech. She went to the hospital after experiencing several fainting episodes. While plaintiff and her husband (who has no training in American Sign Language) asked for an ASL interpreter, all she got were false promises, and plaintiff underwent medical procedures without an interpreter. Under hospital policy, staff must inform patients of their right to free services for the hearing-impaired. As a whole, the policy for hearing-impaired patients is extensive. Of course, the policy only works when someone at the hospital follows it.

The case was dismissed summary judgment because the trial court said plaintiff could not show deliberate indifference to her medical needs. Under the Rehabilitation Act of 1973, a plaintiff must prove deliberate indifference, as follows: "an official who at a minimum (1) has authority to address the alleged discrimination and to institute corrective measures on the [hospital's] behalf; (2) has actual knowledge of discrimination in the [hospital's] programs and (3) fails to adequately respond. The question here is whether the staff who ignored plaintiff's requests were deliberately indifferent to her needs. The Court of Appeals (Jacobs, Leval and Furman [D.J.]) notes that staff knew about plaintiff's need for the ASL accommodation, as plaintiff and her husband had repeatedly asked nurses for an interpreter. There is also no dispute that the hospital did not take action in response to these requests even though doctors and nurses had authority to call for an interpreter. The question now becomes whether these people who blew off the plaintiffs' requests were "officials" whose indifference could render the hospital liable.

At this point in the case, it's not looking good for the hospital. So it relies on an Eleventh Circuit case, Liese v. Indian River County Hospital District, 701 F.3d 334 (11th Cir. 2012), that says an official under the Rehabilitation Act is "someone who enjoys substantial supervisory authority within an organization's chain of command so that, when dealing with the complainant, the official had completed discretion at a 'key decision point' in the administrative process." The Second Circuit will not adopt that narrow legal standard, as it is unspecific and does not help in cases where the defendant facility is huge and patients and visitors do not interact with a supervisor, much less know how to find one. But the Second Circuit adopts the Eleventh Circuit's view that an "official" or "policymaker" is someone who has some "discretion at a 'key decision point' in the administrative process." Under that standard, even nurses can be "officials" or "policymakers." Since the jury may find that the failure to provide plaintiff with an interpreter was not merely negligent (for which there is no liability) and that it was instead deliberately indifferent, plaintiff can win at trial, and summary judgment against her is therefore reversed.

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