New Eleventh Circuit Opinion Broadens Healthcare Providers’ Exposure to Litigation for Failure to Provide Effective Communication to Deaf or Hearing-Impaired Patients

On May 8th, the Eleventh Circuit Court of Appeals issued an opinion with broad implications for healthcare providers, confirming the importance of ensuring effective communication with deaf or hearing-impaired patients. Failure to do so, the opinion makes clear, exposes a healthcare provider to claims of discrimination.

The Court began its opinion with this succinct summary:

[The two Plaintiffs] are profoundly deaf. On numerous occasions, they presented at defendants’ hospitals but allegedly could not communicate effectively with hospital staff because of the absence of certain auxiliary aids or services. Federal law requires, however, that healthcare providers offer appropriate auxiliary aids to hearing-impaired patients where necessary to ensure effective communication. Failure to do so constitutes discrimination against disabled persons.

To support their claims, the Plaintiffs alleged that they visited the hospital system numerous times, often requesting an on-site American Sign Language interpreter. But the defendant hospital system primarily relied on Video Remote Interpreting (“VRI”) technology instead. Plaintiffs alleged however, that the VRI device often suffered from technical difficulties and malfunctioned. And when this occurred, according to the Plaintiffs, the hospital system would rely on family members or exchange hand-written notes with the Plaintiffs. The Plaintiffs thus brought suit under the American with Disabilities Act and Section 504 of the Rehabilitation Act for the hospital’s alleged failure to ensure effective communication.

After recounting this background, the Court overturned the lower court’s more burdensome standard for when a deaf or hearing-impaired patient may bring a claim of discrimination under the ADA and Section 504. In particular, the lower court had held that the Plaintiffs needed to show that they suffered deficient treatment as a result of any ineffective communication, while also articulating precisely what they did not understand from the hospital staff.

But the Eleventh Circuit rejected that stringent standard, writing:

[For an effective-communication claim brought under the ADA and RA, 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. Rather, the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.

Applying this less burdensome standard, the Eleventh Circuit then reversed the lower court’s grant of summary judgment in favor of the hospital system, ruling that “[t]he record is rife with evidence that, on particular occasions, Plaintiffs’ ability to exchange medically relevant information was impaired.” The Court thus remanded the case back to the trial court for further proceedings.

Impact on Healthcare Providers

Increased scrutiny of communications with patients

This opinion has created a relatively relaxed standard for claims alleging discrimination for failure to provide appropriate auxiliary aids and services to patients. Indeed, the Plaintiffs’ allegations make clear that the hospital staff attempted to use their VRI devices on numerous occasions. And although the Eleventh Circuit noted that “perfect communication” is not the standard—and that a patient is not entitled to an on-site interpreter every time they ask for one—healthcare providers should nevertheless expect an increase in the scrutiny of their communications with deaf or hearing-impaired patients. (The same is also likely to be true of communications with Limited English Proficiency patients. For more on the legal risks to providers for failure to provide meaningful access to LEP patients, see this article.)

More discrimination litigation

A more relaxed standard is also likely to lead to more litigation. In fact, this opinion follows closely behind a similar complaint recently filed by 12 hearing-impaired patients against a health system in Arizona. For more information on that complaint, see this article. Taken together, these two events can be seen as a part of a larger litigation trend.

How does this opinion tie into Section 1557 of the Affordable Care Act?

As healthcare providers are well aware, Section 1557 of the ACA imposes new nondiscrimination requirements in the provision of healthcare. (For a summary of Section 1557’s requirements, see this article.) Most relevant here, these new requirements include additional protections for hearing-impaired patients.

In particular, the regulation under Section 1557 specifies that a healthcare provider must now give “primary consideration” to a patient’s preferred choice of auxiliary aid. This new “primary consideration” standard under Section 1557 requires a healthcare provider to honor a patient’s expressed choice, unless the provider can show 1) that an equally effective alternative is available; 2) that the preferred choice fundamentally alters the service; or 3) that the preferred choice imposes an undue burden. Although subtle, this is essentially a shift in the burden of proof (onto healthcare providers) as it relates to which communication aid is most appropriate.

It stands to reason, therefore, that if the Plaintiffs in the case discussed above had pressed their discrimination claims under Section 1557, then the Eleventh Circuit’s opinion would have been even more in the patients’ favor.

Drew Stevens is a litigation associate at Arnall Golden Gregory LLP in Atlanta, Georgia. He is a member of the firm’s Post-Acute Care and Hospital and Health Systems Industry Teams. He is a frequent author and speaker on the topic of Section 1557 of the Affordable Care Act and its nondiscrimination requirements.