Court dismisses ASL discrimination allegations against nurse

By | 2019-07-29T14:27:04-04:00 July 15th, 2019|1 Comment

If you care for patients who are disabled, you know there are many statutes — both federal and state — that prohibit discrimination in healthcare on the basis of a disability.

The most well-known federal statutes include The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and The Patient Protection and Affordable Care Act.

I wrote about the ADA in my blog post, “Lawsuit brings to light importance of adhering to disabilities act,” about a case involving the death of a child with Marfan Syndrome and allegations that the facility did not provide sufficient auxiliary services (e.g., an interpreter) to the deaf parents and instead relied on one of the other children to act as an interpreter.

In the following case about disability discrimination, a different set of circumstances gave rise to a lawsuit in federal court alleging violations of the above three federal laws (Rosario v. Tammany Parish Hospital Service District No. 1, Eastern District of Louisiana, 2019.)

Denise, who is deaf and communicates primarily using American Sign Language (ASL), reads at a second-grade level. At 32 weeks pregnant, she saw her obstetrician for a routine check-up and was accompanied by her ASL interpreter.

Because Denise’s blood pressure was high, she was told to go immediately to the ED at the hospital. She did so but not with her ASL interpreter. ED staff immediately identified that she was deaf and also mute. Denise wrote a note to the staff that she needed an ASL interpreter.

The hospital’s policy was that, “written information, questions and instructions will be provided to … hearing-impaired patients as warranted.” The policy also stated if written communication is not sufficient and the patient uses sign language, a qualified ASL interpreter will be provided through a system used by the hospital to provide an interpreter through “videoconferencing technology,” meaning the interpreter is at a different location.

In addition, a phone number for the Deaf Action Center of Greater New Orleans was given to Denise. This is the same center affiliated with Denise’s ASL interpreter.

ED nurse provides care to Denise

The nurse, who knew of Denise’s deafness, used an iPad to communicate with Denise via the videoconferencing system. She first asked Denise if she could read and write and Denise responded she could. The nurse then informed her what treatment would be done.

During this interaction, the iPad was in front of Denise and the ASL interpreter on the screen translated what the nurse said. However, the transmission was not a good one, and after many freezes and disconnections, Denise asked for an on-site interpreter. Denise’s husband, who was in the room and is also deaf, emphasized his wife’s request.

The nurse called one of the agencies that provide on-site ASL interpreters, but no one was available to help Denise. The nurse did not call any of the other agencies and noted in Denise’s medical record that she attempted to reach a translator but was not successful.

An ultrasound was performed with the videoconferencing system but it still was not working as it should. Written discharge instructions were given to Denise by the nurse after the procedure. The instructions stated Denise should “continue her medications which have not changed” and listed the medications that Denise had been taking, including her blood pressure medication.

The nurse documented the time and the instructions in the medical record, including that Denise “verbally acknowledged understanding them.”

It appeared, however, Denise did not understand the instructions. She did not take her blood pressure medication and when she visited her obstetrician with her ASL interpreter, the pressure level was very high. The physician instructed her to go to the hospital again.

The ASL interpreter accompanied Denise to the hospital. She was admitted for observation and the obstetricians at the hospital decided to perform a C-section immediately.

Denise remained at the hospital with her daughter, who was in the neonatal ICU. Denise’s ASL interpreter provided translation for Denise through video-chat on her cell phone.

Afterward, Denise filed a lawsuit against the hospital that alleged several counts that include:

  • The hospital discriminated against her on the basis of her disability by not providing auxiliary aids and services “to ensure effective communication.”
  • This failure resulted in a denial of services to her that others enjoy.
  • The violations caused her “fear, anxiety, emotional distress and mental anguish regarding her health and the health of her then-unborn baby.”

The hospital filed a summary judgment motion on all of Denise’s claims.

The court’s decision

Many of Denise’s specific allegations involve the nurse who initially cared for her. The court carefully reviewed the nurse’s conduct and her documentation and held there was no “deliberate indifference” to Denise’s disability, nor was there an intent to discriminate against her.

The court opined although the nurse could have called a second or third agency to obtain an on-site ASL interpreter, her conduct did not meet the requirements for a violation of the federal statutes under which Denise sued.

Moreover, the court continued, even with the glitches of the video-conferencing system, Denise never informed the nurse the interpreter in the video “used different signs” that she could not understand during the discharge instructions.

The court granted the hospital’s Summary Judgment Motion. It also dismissed Denise’s claim for compensatory damages with prejudice.

In addition to the implications discussed in my previous blog, this case also presents guidelines for your practice.

They include always documenting your efforts to obtain required services for a patient who has a disability, and remembering a brief patient encounter can result in a lawsuit if the patient believes he or she has been treated in a wrongful manner.

Take these courses about disabilities:

Teaching Adult Patients With Learning Disabilities
(1 contact hr)
According to the National Institute of Neurological Disorders and Stroke, 8% to 10% of American children younger than 18 years have some sort of learning disability that has the potential to continue to affect them into adulthood. While the true prevalence of learning disabilities in adults educated before 1970 is not known, one literacy organization reports 36 million Americans older than 16 are functionally illiterate, reading at a third-grade or lower level. It is estimated that the cost of low health literacy to the U.S. economy is $232 billion annually, and could swell to $1.6 trillion to $3.6 trillion in the next 30 to 50 years. This educational activity will address skills and strategies to improve your ability to provide appropriate education to people with learning disabilities.

Effective Communication With Patients
(1 contact hr)
A growing body of research has shown a variety of patient populations experience decreased patient safety, poorer health outcomes, and lower quality of care based on race, ethnicity, language, disability and sexual orientation. Effective communication with all patients is crucial to providing safe care. The healthcare team should aspire to meet the unique communication, cultural and familial needs of all patients.

What’s The Missing Ingredient in a Recipe for Effective Healthcare?
(1 contact hr)
People who are food insecure — even at marginal food security — are at greater risk for diabetes, heart disease, stroke, obesity, depression, disability, and premature mortality costing the United States $160 billion in direct and indirect healthcare cost. Food insecurity exacerbates poor glycemic control impacting many patients. Shockingly, 1 in 3 critically ill adults do not have enough money for food, medicine, or both in the United States. Screening for food insecurity and helping patients access important community resources is the missing ingredient in effective healthcare.

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, concentrates her solo law practice in health law and legal representation, consultation, and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues and has published extensively in the area of law and nursing practice. She brings more than 40 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. 

One Comment

  1. Avatar
    Uzzal September 19, 2019 at 2:35 am - Reply

    every days this problem affect in the country.

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