Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:

In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.

The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):

In Title III of the ADA and § 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.

This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

Eleventh Circuit Decides Important Hospital-Interpreter 504 Case

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Liese v. Indian River County Hospital District.  The plaintiffs, a married couple, both of whom have hearing impairments, brought this lawsuit for compensatory damages under Section 504 of the Rehabilitation Act.  They claimed that the defendant hospital violated the statute by refusing repeated requests for a sign-language interpreter when they went to the hospital's emergency room.  The district court granted summary judgment to the hospital.  The Eleventh Circuit reversed that judgment in yesterday's opinion.

There are three key rulings here.  The first is the court's conclusion that a sign-language interpreter, as opposed to other forms of communication, will often be especially necessary where a patient's decisions about emergency surgery are at issue:

Whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment largely depends on context, including, principally, the nature, significance, and complexity of the treatment. For example, emergency surgery is often a complicated concept to convey to a person who can hear well; the attendant risks, manner of surgery, prognosis, and advantages or disadvantages of immediate or postponed surgery can only complicate this communicative task. Thus, under circumstances in which a patient must decide whether to undergo immediate surgery involving the removal of an organ under a general anesthetic, understanding the necessity, risks, and procedures surrounding the surgery is paramount. Under these circumstances, auxiliary aids limited to written notes, body gestures, and lipreading may be ineffective in ensuring that a hearing-impaired patient receives equal opportunity to benefit from the treatment.  [The court here refers to the Department of Justice's effective communications regulations under Title III of the ADA.]

In this case, IRMH medical personnel conducted a battery of tests on Liese and then removed her gallbladder through emergency laparoscopic surgery. The auxiliary aids that the personnel relied on to communicate the nature of and need for the surgery consisted of mouthing words for the Lieses to try and lipread, writing notes, and pantomiming. Viewed in a light most favorable to the Lieses, the record contains sufficient evidence to show that these limited auxiliary aids were ineffective and that additional aids were necessary. At her deposition, Liese testified that she did not understand much of what she was purportedly told about her condition, prognosis, and proposed treatment by the attending emergency room personnel. Liese did not understand the battery of tests that were conducted on her. She said in her deposition that she repeatedly asked Dr. Perry why she was having gallbladder surgery when she was suffering from chest pains, not stomach pains, a question to which Dr. Perry apparently responded by writing a note that said, “remove it and you’ll feel better after that.” Liese flatly asserted that the doctor “didn’t tell me [or] explain anything.” In light of the major surgery required, under a general anesthetic, on an emergency basis, it seems to us fairly arguable that effective communication entails telling the patient more than that the proposed surgery will solve the problem.

The second key ruling is the court's holding that a plaintiff can recover damages for a Section 504 violation by showing deliberate indifference; intentional discrimination is unnecessary.  This was new ground for the Eleventh Circuit, though most other circuits have ruled the same way.

And the third key ruling is that the deliberate indifference of the hospital's doctors (and not just its highest-level administrators) was sufficient to warrant liability:

The question of how far up the chain of command one must look to find an “official” is necessarily a fact-intensive inquiry, since an official’s role may vary from organization to organization. See Doe, 604 F.3d at 1256-57. In the § 504 context, we conclude that an official is someone who enjoys substantial supervisory authority within an organization’s chain of command so that, when dealing with the complainant, the official had complete discretion at a “key decision point” in the administrative process. See Doe, 604 F.3d at 1256-57. The “key decision point” language reflects the practical reality that, while some decisions are technically subject to review by a higher authority, such a review is not part of the entity’s ordinary decision-making process. See id.

In the present case, a reasonable juror could conclude from this record that the doctors at IRMH were officials within the meaning of Gebser. Viewed in a light most favorable to the Lieses, the record shows at least that the doctors had complete discretion to decide whether or not to provide the Lieses with an interpretive aid. While any Hospital staff member, be it a doctor or a nurse, had the authority to ask for an interpreter or to retrieve the Hospital’s MARTTI video interpreting system from the storage closet, on this record the evidence suggests strongly that the doctors had supervisory authority. Indeed, the doctors could overrule a nurse’s decision to not provide an auxiliary aid. In contrast, there is no evidence here to suggest that the doctors’ decisions were subject to reversal. Thus, unlike the nurses, the doctors enjoyed complete discretion over whether or not to provide the Lieses’ with an interpreter or other auxiliary aid.

A review of IRMH’s “Communication Barriers” policy confirms this arrangement. The policy provides that interpretive aids, such as interpreters and the MARTTI video interpreting system, are all “available” to provide assistance in communicating with patients. However, the policy offers no guidance or recommendation as to when doctors or nurses should use these aids; rather, it affords the IRMH staff complete discretion in these matters. Similarly, the training that IRMH provided to its staff on MARTTI dealt exclusively with how to use MARTTI, not when to use it.

Congratulations to FOB Matt Dietz on this huge win.