Health Care

Court hears appeal of deaf patients who say Baptist should use interpreters in hospital

Cheylla Silva, (center) her partner for 12 years Byron Mena, (left) and their daughter Lily Mena, (right) asked a federal judge in 2014 to order Baptist Hospital Miami to provide her with an American sign language interpreter because she's deaf. The dismissal of the case is being appealed in federal court.
Cheylla Silva, (center) her partner for 12 years Byron Mena, (left) and their daughter Lily Mena, (right) asked a federal judge in 2014 to order Baptist Hospital Miami to provide her with an American sign language interpreter because she's deaf. The dismissal of the case is being appealed in federal court. Miami Herald staff

Next week, next month or maybe next year — she does not know exactly when — Cheylla Silva will need to visit her local hospital again. And when that happens, Silva, who is deaf, doesn’t want to struggle just to communicate with doctors and nurses as she has the past two dozen times.

Silva communicates in American sign language, and she says she has labored to convey and comprehend the most basic information at Baptist Hospital Miami because the hospital has refused to provide an interpreter.

Instead, she has been directed to a Video Remote Interpreting system or VRI for communication. But the remote video service crashes, the feed can be choppy and it’s hard to see when she’s lying in a hospital bed with tubes in her arms or when a medical team has crowded into her room.

“Why does everything have to be a struggle?” Silva, 34, asked through an interpreter. “I just want to be able to communicate like anybody else.”

On Wednesday, Silva was in federal court in Miami to argue that Baptist Hospital’s refusal to provide a live interpreter violates the Americans with Disabilities Act. She filed the case against Baptist in 2014 along with John Paul Jebian, a Miami man who also is deaf. A U.S. District Court judge dismissed the case a year later but Silva and Jebian are appealing.

The Justice Department’s Civil Rights Division also weighed in on the case, filing a brief in support of Silva and Jebian’s claims, and urging the federal appeals court to reverse the dismissal by U.S. District Judge Kathleen M. Williams.

The appeal centers on whether the remote video service — which allows an interpreter to translate via video screen — provides equal access and effective communication for a deaf patient as required by the ADA, said Matthew Dietz, an attorney with the Disability Independence Group, a nonprofit advocate for the disabled representing Silva and Jebian.

Dietz argued that system may work in some hospital settings, such as a one-on-one meeting with a nurse or doctor, but it is ineffective and inadequate in others, such as during an MRI or X-ray, or during child birth or group therapy sessions.

He said Baptist’s refusal to dedicate a high-speed, wide bandwidth Internet connection for the service also means blurry and choppy images, and repeated disconnections.

Deaf patients, Dietz said, “deserve to know what’s happening to them.”

Baptist’s lawyer, Eric Isicoff, countered that while VRI is not perfect, Silva and Jebian have not presented evidence that the system led to a misdiagnosis or other medical error, and that they were never denied care.

“We far exceed what is required,” he told the panel of federal judges hearing the appeal.

Jebian, the other plaintiff, called the experience with the remote translator “frustrating.”

“You waste so much time with VRI, and the screen is really small, so it’s hard to see,” he said through an interpreter earlier this week.

Jebian, 46, has visited Baptist Hospital about six times since 2009, and he said that at times hospital staff members would turn to his wife to translate or ask one of his three children. But he wouldn’t let them.

“You can’t put that kind of pressure on a 10-year-old to medically interpret for his sick father in the emergency room,” he said.

Dietz said federal regulations call for “effective communication,” but the law does not define that standard. He said the court’s decision in Silva and Jebian’s case may ultimately result in a definition, affecting how most hospitals meet the ADA’s requirements.

“The court can make clear what effective communication is in a medical setting, and when they can use VRI or a live interpreter,” he said after the hearing.

Isicoff, Baptist’s lawyer, said the hospital made extra efforts to help Silva when complications arose with her care. They made arrangements to provide a live interpreter for her — a point noted by one of the judges, who said Silva had received a live interpreter more often than she had not during more than a dozen visits.

Dietz said Baptist only provided the interpreters after VRI had failed, showing the system is ineffective.

Baptist Health South Florida, which owns and operates Baptist Hospital Miami, issued a statement in response to the Herald’s questions about the case. Marketing Director Dori Alvarez said, “We provide accommodations for our patients and visitors with special needs.”

The original judge in the case, Williams, in the district court, found that VRI was adequate to meet federal regulations, and that Silva and Jebian were never misdiagnosed because of it. She also wrote in her order that Silva and Jebian didn’t specify what information they did not understand or failed to receive, and that there was no guarantee they would return to Baptist Hospital.

But the Justice Department’s brief argued that Silva and Jebian did not need to show that their medical care suffered as a result of VRI in order to establish that Baptist had denied them “effective communication” under the law. The Justice Department also argued against the district court’s conclusion that Silva and Jebian were not entitled to sue because they could not guarantee that they would return.

During Wednesday’s hearing, though, the appeals court judges focused mainly on the VRI system and whether its use met federal requirements for effective communication.

Dietz said the appeals court judges could take several months to render an opinion.

“Whether we win or lose,” he said, “there’s going to be some clarification in what a hospital can do.”