Deliberate Indifference: New federal ruling on Video Remote Interpreting in healthcare (April 2017)

In late April 2017, a federal court announced a major decision that has implications for health care providers nationwide.

The U.S. Court of Appeals for the Eleventh Circuit ruled that several Deaf patients could recover disability discrimination money damages against their hospital because of the hospital’s improper use of Video Remote Interpreting (VRI) to communicate with its patients.

he Eleventh Circuit, whose decisions are legally binding in Alabama, Georgia, and Florida, provided important legal standards for when a health care provider’s use of Video Remote Interpreting to communicate with Deaf patients can lead to liability under two federal laws, the Rehabilitation Act of 1973 and the Americans with Disabilities Act.

Federal appeals court decisions are given great deference and attention by courts across the country, beyond the area where the decisions are legally binding. This decision will affect and influence courts and health care providers in all states.

Intentional discrimination and VRI

In its ruling, the Court found several examples of hospital staff’s “deliberate indifference,” also known as intentional discrimination under federal law, to Deaf patients to justify disability discrimination money damages.

The Court outlined the experiences of the Deaf patients who sued the hospital. Here is the Court’s description of three patients’ VRI experiences:

“On the fifth day of her admission, Ms. Sunderland again asked a nurse for an in-person interpreter.  The nurse denied the request but afforded Ms. Sunderland access to the VRI.  For the remainder of Ms. Sunderland’s hospital stay, the VRI was used intermittently.  The VRI, however, frequently froze and was blurry.  Ms. Sunderland’s son complained to a nurse about these issues and requested an in-person interpreter.  No in-person interpreter was provided.

Mr. Liese requested an in-person interpreter, but his nurses opted to use the VRI.  The nurses, however, used the VRI only intermittently, and when they did use the VRI, it frequently malfunctioned.  The VRI worked at times but was often blurry or failed to activate.  Also, Mr. Liese has macular degeneration, so he could not see the VRI screen clearly, and on at least one occasion, he and Mrs. Liese were unable to comprehend the remotely located interpreter’s signing…

Mr. Virgadaula’s nurses, however, had difficulty setting up the VRI, and the VRI’s remotely located interpreter intermittently became non-visible, preventing Mr. Virgadaula from receiving the full information communicated by his doctors and nurses.  These difficulties were evident to the nurses, who repeatedly attempted to correct the visibility issues.  Eventually, some hospital staff abandoned the VRI and resorted to simply gesturing to Mr. Virgadaula.  Mr. Virgadaula’s doctor, for example, resorted to gesturing in the moments leading up to Mr. Virgadaula’s surgery.”

The ruling

Citing the examples of these and other patients, the Eleventh Circuit ruled that:

“A jury could find that [five Deaf patients] were denied effective communication; that nurses were aware of the denials; and that the nurses refused to correct the denials… The evidence indicates that the nurses, knowing the patients required an interpretive aid, relied on the VRI to facilitate communication with the patients; were put on notice that the VRI was not accommodating the patients; and chose to persist in using the VRI without correcting its deficiencies…  In fact, it appears that the nurses even abandoned the VRI altogether at times without providing an alternative interpretive aid.”

The appeals court also criticized the hospital’s VRI policies. The Court essentially decided that the hospital’s policies enabled the staff’s disability discrimination:

“[The hospital’s] VRI policy provides hospital staff no guidance on when the VRI or another accommodation is appropriate.  Nurses are afforded “complete discretion” in implementing the policy….the record supports a finding that nurses’ decisions about when to provide and when to abandon the VRI are generally not “subject to reversal…”

Unless this lawsuit is settled by the patients and the hospital, the case will move forward and will be set for trial and other hearings to assess the amount of money damages owed for disability discrimination.

Two additional takeaways from this case are important.

1. The plaintiffs in this case did not claim any violations of Section 1557 of the Affordable Care Act, which also prohibits disability discrimination.  Section 1557 imposes a different obligation on hospitals to provide “effective communications” to Deaf and hard of hearing people than the laws used in the Eleventh Circuit case. Patients claiming disability discrimination under Section 1557 also have less to prove to win their cases than the plaintiffs in the Eleventh Circuit Court of Appeals decision.
2. There is no medical malpractice or negligence here. “Deliberate indifference” money damages are for federal civil rights violations and therefore NOT covered by professional malpractice insurance.

This decision is one of the most significant concerning VRI and effective communications with Deaf and hard of hearing people. Americans with Disabilities Act cases continue to be hotly and widely litigated throughout the United States. More court actions like this one will undoubtedly unfold resulting in additional ADA legal requirements for organizations to follow.

The case is: Sunderland et al. v. Bethesda Hospital Inc. (U.S. Court of Appeals for the 11^th Circuit, April 27, 2017)

Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.

© Bruce L. Adelson, special for Bromberg.  2017 All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney. 

Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.