Health Care

Deaf patients win right to sue Baptist Health for discrimination

Cheylla Silva, (center) her partner for 12 years Byron Mena, (left) and their daughter Lily Mena, (right) won the right to sue Baptist Health South Florida for discrimination this week after a federal appeals court reversed a lower court’s dismissal of her case, which alleges that Baptist Health discriminated against her by failing to provide an in-person interpreter during visits to its hospitals. Silva’s case was remanded for further proceedings, which could lead to a trial or a settlement.
Cheylla Silva, (center) her partner for 12 years Byron Mena, (left) and their daughter Lily Mena, (right) won the right to sue Baptist Health South Florida for discrimination this week after a federal appeals court reversed a lower court’s dismissal of her case, which alleges that Baptist Health discriminated against her by failing to provide an in-person interpreter during visits to its hospitals. Silva’s case was remanded for further proceedings, which could lead to a trial or a settlement. Miami Herald staff

Two deaf patients from Miami won the right to sue Baptist Health South Florida for discrimination after a federal appeals court on Monday reversed a lower court’s dismissal of their case — and published a detailed opinion that advocates say spells out the responsibility for all hospitals to ensure “effective communication” with patients who cannot hear.

The patients, Cheylla Silva and John Paul Jebian, filed a lawsuit in 2014 under the Americans with Disabilities Act after they said Baptist Hospital Miami and South Miami Hospital — both owned by Baptist Health — had refused to provide in-person interpreters of American Sign Language.

  

The hospitals used handwritten notes, family members as interpreters, and a video system to communicate with Silva and Jebian on repeated visits, according to the suit. But the video system frequently did not work, Silva and Jebian said, and for speakers of American sign, which is structurally different from English, family interpreters and handwritten notes were inadequate.

The hospitals provided in-person interpreters on some visits. But until the 11th Circuit Court of Appeals issued its opinion this week, there was little clarity on a hospital’s legal requirement under the ADA to ensure that deaf patients have the same opportunity as those who are not deaf to participate in their medical care, said Matthew Dietz, an attorney with the Disability Independence Group, a nonprofit advocate for the disabled that represented Silva and Jebian.

“No court has ever gone into such detail about a hospital’s need to provide effective communication” for deaf patients, Dietz said. “It basically said a person who is deaf is entitled to equal participation through effective communication, which is the most that we could ever expect.”

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

Dori Alvarez, marketing director for Baptist Health, issued a written statement saying that the hospital system is committed to ensuring its deaf patients have the tools they need to communicate with doctors and nurses.

“We meet or exceed all requirements in terms of providing accommodations to patients with special needs, including those who are deaf or hard of hearing, and we continuously work with patients and families to make improvements,” Alvarez said in the statement.

The ruling sends the case back to federal district court in Miami for further proceedings, which could mean a jury trial or a settlement.

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In this April 2016 photo, John Paul Jebian (left) teaches students to use American Sign Language as part of his group, Waving Hands, at Highland Oaks Park in Miami. Jebian won the right to sue Baptist Health South Florida for discrimination this week after an appeals court reversed a lower court’s earlier dismissal of his case. The appeals court’s opinion stated that hospitals have a legal requirement under the Americans with Disabilities Act to ensure that deaf patients have the same opportunity as patients who are not deaf to participate effectively in their medical care. MARSHA HALPER mhalper@miamiherald.com

The opinion does not state that a deaf patient is entitled to an in-person interpreter on every visit, even if they ask for it. Rather, the hospital gets to decide, after consulting with the patient, what type of communication method or device to use.

But whatever communication aid the hospital chooses to offer, the court found, the hospital must ensure it is effective — a standard that can change depending on the context of the patient’s care and the available tools.

Dietz said a video interpreting system like the one Baptist Health uses could be effective in an outpatient center where a patient is meeting face to face with a single provider. But, he added, “it has to work, and it has to be the appropriate circumstance for it to provide effective communication. A person would not have an equal opportunity to participate using a video system in, let’s say, a birth.”

In the lawsuit, Silva stated that she frequently was forced to communicate with doctors and nurses through notes and family members even though she often did not understand or could not read the doctor’s handwriting. Silva also was asked to sign documents that she said she did not understand.

Alvarez said in the statement that Baptist Health has upgraded its technology to improve the internet connectivity that the video systems rely on for interpreting, and she stressed that the court has not made a final judgment in the case.

Daniel Chang: 305-376-2012, @dchangmiami

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