The federal ruling from Sunderalnd et al. v. Bethesda Hospital Inc. has serious implications for healthcare providers using Video Remote Interpreting.

New federal ruling on Video Remote Interpreting in healthcare

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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.

The 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 11th 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.

This Post Has 11 Comments

  1. JacalynStover

    I have tried to use the IRA 8008291040 to have free iqualified interpreters for hiring as business write off to doctors, hospitals and medical offices therapy too
    Another way is to emphasize the
    504 law that enforced the needs to have qualified interpreters at work, meetings, airports, public schools and hospitals.
    If one becomes deaf as lost hearing then you need learn sign language, lipread to understand what interpreter say with police, dr, any public person of all trades.

  2. Jeanne Lambert

    This doesn’t give Deaf patients as the Hearing people.. 1) Hearing can hear cleary what doctors say when Deaf can not sure blurry TV with VRI. That shows no equal access to information!
    2) Deaf have to wait for TV to be fixed while pains are unbearable! Again that shows no equal access by waiting longer when it could be quickly solved if one gets live interpreter!

  3. Jeanne Lambert

    Sure should be replaced with see blurry TV. Autocorrect did that….

  4. Bruce Adelson

    Thank you for your comments. The federal law of effective communications for people with disabilities is complex, with many twists and turns. VRI, when operated correctly (for example, when the VRI image is clear and not blurry) and appropriately, as defined by federal law, can provide effective communications for deaf and hard of hearing people.

  5. Michele A Walsh

    That all depends on the Deaf indiviindividuals understanding of what is being communicated, not the hearing persons understanding. There is a difference. There are many Deaf individuals who have a condition known as Ushers Syndrome. Unfortunately not many nurses or physicians are aware of this situation and a VRI is of no use to the Deaf consumer, they need a live interpreter. Thank you

  6. Karen Hill

    It depends on where the deaf patient lives. Not every place has in-person interpreting services available at all hours any day of any week. So VRI is often necessary whether the deaf patient likes it or not. He needs to recognize that he may not be the only deaf patient at that moment. This is especially true in emergency situations.

  7. Lu Buterbaugh

    To Who most concerns,

    ….Maybe this would help more understanding clear point here…. By the way, my English here may not that wonderful for any of you to understand how you be able to clear a big puzzles of a picture.

    …… For example for Hearing disliked to listen any kind of statics sounds while they’re trying to listen to that very important information for all of our safety during very terrible bad storms or even earthquakes, they fixed their statics quickly, not for Deaf as instructed!!!!

    …..Another example Hearing interpreters whoever have their limited education which this continuing for years to provide Deaf our effective communication which we Deaf been more suffering to receiving us Deaf more deeply effectively communication as a real alive interpreter, continuing to be continue bear to work with any interpreters due to their limited education because some interpreters whoever not been in any of Doctor’s colleges to have these vocabularies to understand clear….. during go through chemos or such any medication therapy with all of statically pictures for a Deaf person to understand his/her health conditions how to taking care of himself/herself with all of wrongly information due to that kind of statically effective communication interpreter’s skills because they interpreters not have any of doctors vocabularies whizzing caused cracking down health conditions then who’s fault in this matters?

    …..I’m here to encouraging many nurses and doctors to learn how to use our Deaf ASL becoming more effective communication than continue having misunderstanding in many areas…..

    Thanks,
    Lu Buterbaugh

  8. Jennifer Kearney

    I agree that live interpreters are the something that would be most suitable for communicating with deaf people, but VRIs are the second best thing when live interpreters are not available for some reason.
    But technology is advancing every single day and blurry screens should not be allowed.
    Here’s an article I came across with an interesting angle on the subject:
    http://www.hearlink.com.au/industry-news/future-interpreting-services/

  9. Tim Blackman

    Thank you Jennifer for your comments! Each interpreting modality definitely has its place. It’s the job of health care providers to properly access each situation to determine the best modality for every individual.

  10. SRBlake

    Sign Language is three dimensional .. not flat as this remote interpreting!! Even if there is no depixilization .. there continues to be lack of depth.. which changes the nuances of the language..

  11. Bruce Adelson

    Thank you for your comment. I understand your concerns. The blog post was reporting the court’s decision. The appeals court did not address these considerations in its ruling.

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