Intentional Discrimination Ruling on VRI
In April of 2017, a significant ruling was handed down by a federal court, with far-reaching implications for healthcare providers nationwide.
The U.S. Court of Appeals for the Eleventh Circuit declared that numerous Deaf patients were entitled to receive compensation for disability discrimination from their hospital. This was due to the hospital's improper utilization of Video Remote Interpreting (VRI) to communicate with these patients.
The Eleventh Circuit, whose decisions hold legal weight in Alabama, Georgia, and Florida, established crucial legal benchmarks regarding when a healthcare provider's use of VRI with Deaf patients could result in liability under two federal statutes: the Rehabilitation Act of 1973 and the Americans with Disabilities Act.
Decisions made by federal appeals courts carry significant weight and are closely observed by courts nationwide, extending beyond the jurisdictions where they are legally binding. Consequently, this ruling is expected to have a broad impact, influencing both courts and healthcare providers across all states.
In its verdict, the Court identified various instances of what it termed as "deliberate indifference" by hospital staff towards Deaf patients, which constitutes intentional discrimination under federal law, thereby justifying compensation for disability discrimination.
Here's how the Court described the VRI encounters of the three Deaf patients:
“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:
The ruling by the Eleventh Circuit cited examples from the three patients cited above, as well as other Deaf patients, to determine that deliberate indifference by hospital staff constituted intentional discrimination under federal law, warranting compensation for disability discrimination.
The Court noted that hospital staff were aware of the patients' communication challenges, yet persisted in using Video Remote Interpreting (VRI) despite its inadequacies, even abandoning it at times without providing an alternative. Additionally, the hospital's VRI policies lacked clear guidelines, granting hospital staff complete discretion in its implementation, thereby facilitating the staff's discriminatory actions.
The case proceeded to trial and hearings where the extent of damages owed for disability discrimination were determined. Notably, the plaintiffs didn't invoke Section 1557 of the Affordable Care Act, which imposes different obligations on hospitals regarding effective communication for Deaf and hard of hearing individuals, for the purpose of offering an easier path to legal victory.
It's important to highlight that this case doesn't involve medical malpractice or negligence; instead, it focuses on federal civil rights violations, for which professional malpractice insurance doesn't provide coverage.
This ruling holds significant implications for VRI usage and effective communication with Deaf and hard of hearing individuals under the Americans with Disabilities Act. Given the ongoing litigation surrounding ADA cases, similar legal actions are likely to emerge, potentially leading to further legal requirements for organizations.
The case in question is Sunderland et al. v. Bethesda Hospital Inc., decided by the U.S. Court of Appeals for the 11th Circuit on April 27, 2017.
