Civil Rights – RA & ACA – Deaf Patient Proxy – Malfunctioning VRIs – Deliberate Indifference

Where the defendant-hospital allegedly failed to provide the deaf plaintiff with any way to communicate during his three-day stay – despite his early and repeated requests – plaintiff’s complaint states claims under the Rehabilitation Act and the Affordable Care Act.

We reverse the district court’s grant of defendants’ motion to dismiss.

Allegations

Plaintiff, a deaf man, served as patient proxy for his pregnant wife, who had a complicated medical history that included losing consciousness during a previous delivery. Plaintiff notified the defendant-hospital of his need for assistance in communicating (1) before his wife went into labor, (2) when the couple were on the way to the hospital, and (3) when they arrived.

The hospital provided a Video Remote Interpreting device, which malfunctioned. The hospital provided a second VRI, which also malfunctioned and was moreover placed so that it required plaintiff to leave his wife’s side in order to try to use it.

During the couple’s three days in the hospital, plaintiff repeatedly requested assistance in communicating, but the hospital failed to provide either an interpreter or a working device.

Discussion

At issue is whether the hospital adequately accommodated plaintiff by providing him with malfunctioning auxiliary aids.

Regarding VRI, an entity that chooses to provide interpretive services in this manner must ensure that it meets certain performance standards. 28 C.F.R. § 36.303(f). These include “[r]eal-time, full-motion video” over a sufficiently strong wireless network “that delivers high-quality video images that do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication” and “[a]dequate training to users of the technology…so that they may quickly and efficiently set up and operate the VRI,” among others. § 36.303(f)(1)–(4). A VRI system that does not meet these standards is not “an effective method[] of making aurally delivered materials available to individuals with hearing impairments”– meaning a non-compliant VRI system is not an appropriate auxiliary aid. 42 U.S.C. § 12103(1)(A).

In order for a Rehabilitation Act plaintiff to receive damages under Title VI of the Civil Rights Act, the plaintiff must prove, not only that a defendant failed to provide an appropriate auxiliary aide, but also that it acted with an intent to discriminate. This court has not yet articulated the precise manner of proving discriminatory intent under the RA. Like our sister circuits, we adopt the deliberate indifference standard, as anticipated by the parties and the district court below.

This standard requires a plaintiff to plausibly plead that a defendant (1) knew that harm to a federally protected right was substantially likely and (2) failed to act on that likelihood. In the context of failing to provide an effective auxiliary aid, a plaintiff must show that the defendants knew there was a substantial likelihood that they would be unable to communicate effectively with a deaf patient or companion but still made a deliberate choice not to provide one.

One thing a deliberate indifference standard does not require in this context, however, is some obvious pattern of mechanical failure in auxiliary aids provided by the hospital. Civil rights statutes protect a single individual from a statutory violation without the invariable need to prove a systemic and pervasive problem, as the district court would require.

Deliberate indifference is, at bottom, an actual-notice standard. Demonstrating that a hospital had notice of a patient’s need for auxiliary aids and failed to provide them despite knowledge that the patient could not effectively communicate without such aids supports a finding of deliberate indifference.

The complaint made a showing that hospital staffers both knew of a substantial likelihood that plaintiff would be unable to communicate without an appropriate auxiliary aid, yet still made a conscious choice not to provide one.

The crux of plaintiff’s claim is not the malfunctioning VRI on the first day of his stay; it is that despite repeated requests for another auxiliary aid, such as an in-person interpreter, the hospital did nothing to ensure that plaintiff could communicate with its staff for the rest of his three days at the hospital. The complaint alleges that plaintiff “made repeated requests for interpreters” from June 2 to June 4, 2017. Further, the complaint alleges that plaintiff “was unable to understand what was happening throughout the delivery process” and he “was not given the opportunity to ask any questions concerning his wife’s treatment and was thus unaware if she had any medical concerns.”

The hospital required plaintiff to communicate via lip-reading, which plaintiff alleges he could not understand. The important issue again is that the hospital did nothing to remedy this situation despite having ample time to do so. Therefore, plaintiff pled a sort of apathy that shows the hospital’s indifference to plaintiff’s rights may have been so pervasive as to amount to a choice.

It matters not that plaintiff was not himself the patient. Regulations create “an obligation to provide effective communication to companions” with disabilities. 28 C.F.R. § 36.03(c)(1). Plaintiff, a hearing-impaired individual, was unable to communicate his wife’s complicated medical history to her doctors during childbirth, despite repeated requests for some effective means of doing so. The situation was a high-risk one for the couple, and the medical event one of the highest urgency and meaning.

Reversed and remanded.

Basta v. Novant Health Inc. (Lawyers Weekly No. 001-125-22, 18 pp.) (Harvie Wilkinson, J.) No. 21-2375. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) David John Hommel and Andrew Rozynski for appellant; David Stevens and Patrick Kelly for appellees; Noah Benjamin Bokat-Lindell, Kristen Clarke, Tovah Calderon and Christopher Wang for amicus curiae. 4^th Cir.