Judgment underscores hospitals’ need to help deaf patients, families
Court says hospital wrong to deny interpreter in Lamaze class, birth
Health care facilities risk serious legal penalties if they do not provide effective means of communication to deaf patients or family members, and a recent court case suggests that hospital risk managers may underestimate the need to provide accommodation. Using interpreters only in the emergency room does not solve the problem; it may be necessary to develop a comprehensive policy on how and when the hospital will provide interpreters or other means of communication.
The need for effective communication with deaf patients comes as no surprise to risk managers, but the practical solutions to that problem may be more difficult than imagined. Mount Sinai Medical Center in New York City recently learned the hard way about legally required accommodations for the deaf. The medical center lost a lawsuit after refusing to provide an interpreter for a deaf father-to-be during Lamaze classes and the birth of his child.
Alan Rich, JD, the New York attorney who represented the plaintiff in that successful suit, handles many complaints against health care providers accused of discriminating against the hearing-impaired. He says he is amazed at how often the providers refuse to make accommodation. In every case, he says, the health care provider does not understand how clearly the law requires such accommodation or does not understand how to work with deaf people.
"It always shocks me to see how risk managers don’t look at this as a serious problem," Rich says. "It’s a deadly serious problem. There’s a certain arrogance that says, We’re the hospital, so don’t tell us how to run the hospital.’"
Rich became involved with the discrimination against deaf people in health care partly because he has three deaf family members. He has represented deaf plaintiffs in several cases against hospitals, but his most recent victory highlights the way hospitals run into trouble where accommodations are concerned. The problem is that the hospitals may see them as gray, but the court sees them as black or white.
Deaf husband’s request denied
The Mount Sinai lawsuit was brought by Jeffrey Bravin, a teacher at the Lexington School for the Deaf in New York, whose wife, Naomi, was pregnant in 1997. Naomi Bravin is not deaf. When Jeffrey Bravin attempted to take part in his wife’s Lamaze class at Mount Sinai, the hospital would not provide an interpreter so he could understand the instructions. His wife could communicate with him, of course, but Rich explains that she was unable to translate in sign language while participating in the class.
The Bravins requested an interpreter for the Lamaze class but the hospital refused, saying Naomi Bravin, not her husband, was the patient. Because Naomi Bravin could hear the Lamaze instructions, the hospital claimed it had no obligation to provide an interpreter. The Bravins involved their attorney, who sent the hospital a policy letter from the U.S. Department of Health and Human Services explaining the need for accommodation. That letter states that "if prenatal classes are offered as a service to both husbands and wives, a hearing impaired husband must be provided with auxiliary aids so as to afford him the same opportunity to benefit from the services as non-handicapped husbands."
Despite that seemingly clear interpretation of the law, the Bravins never received an interpreter for the Lamaze class. The hospital continued to deny the aid, according to court documents, by saying Lamaze classes were not offered to both parents. The classes were officially "offered" only to expectant mothers, though fathers were allowed to attend, so accommodation was necessary only for the mother, the hospital contended.
When the child was born Sept. 13, 1997, the Bravins were unable to use Lamaze methods properly because the husband was unable to do his part. In addition, there was no interpreter in the birthing room because the hospital again refused to provide one, Rich says. Naomi Bravin tried to explain the Lamaze procedures to her husband and to interpret what the doctors and nurses were saying, all while she was having the baby. The result, Rich says, was an absurd scene that left the husband bewildered and both parents frustrated to the point of tears.
To make matters worse, the newborn boy remained in the neonatal intensive care unit for a week after the birth, and the hospital still would not provide an interpreter, Rich says.
"My wife is hearing, but she has been so upset at what has been happening to our baby that she can not interpret," Jeffrey Bravin wrote in a Sept. 19, 1997, court affidavit in an effort to obtain an interpreter. "She has been crying. I want to speak directly with those in charge of my baby’s case."
In New York, a sign language interpreter charges about $70 for a two-hour session.
Throughout the pregnancy and after the childbirth, the hospital maintained that it had no obligation to provide an interpreter because the patient was hearing, Rich says. The implication was that the hospital would have provided an interpreter if the mother had been deaf.
Judge Robert Sweet of the U.S. District Court in New York disagreed, ruling April 16 the hospital violated state and federal laws requiring accommodations for the disabled. The lawsuit focused on the Lamaze classes, though Rich contends the hospital also was obligated to provide an interpreter during the birth. Sweet granted summary judgment after reviewing the case, saying the hospital had violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. He will conduct another hearing to award damages.
The attorney handling the case for the hospital, Ricki Roer, JD, says hospital officials were gratified that the judge denied the efforts of a group representing the deaf community to join the case. The hospital has filed an appeal of the summary judgment, she says. Roer declined to comment further on the case.
While some risk managers may see the Lamaze demand as an unnecessary accommodation, those who work closely with the deaf say the need is clear. At Southwest Washington Medical Center in Vancouver, WA, Marcia Maynard, interpreter and accessibility coordinator for the hospital, says, "Absolutely we would provide an interpreter in that situation. We wouldn’t even question it."
Accommodating loved ones
At her facility, Maynard says, staff provide necessary accommodation to any family member or significant friend. "That’s pretty much anyone who is close enough to the patient that they are a significant part of the patient’s support system," she says. "In a Lamaze class, the husband certainly is a significant person. We don’t provide interpreters for just someone visiting the patient, but you are not providing good care if you leave the patient unable to communicate with the important people in her life."
The plaintiff’s attorney says the case is a good illustration of how hospitals and other providers can suffer legal liability by not adequately understanding the needs of the hearing impaired. Mount Sinai administrators tried to minimize the needs of the deaf husband, Rich says, taking an oversimplified view of what it means to accommodate the deaf. Many administrators would say it is necessary to provide interpreters or other aids for the direct communication between patient and physician, but Rich says the Mount Sinai case illustrates that the law requires much more.
Risk managers may balk at the idea of providing an interpreter for family members, and the Bravins’ attorney notes that such an accommodation would not be necessary in all cases. In this particular case, the father was seen as an integral participant in the Lamaze class and childbirth rather than, for instance, just a relative who stopped by to see how the patient was recovering.
Another question is why the parents did not provide their own interpreter. Surely they had access to one because the father teaches at a school for the deaf, and some would argue that it was their responsibility to provide the interpreter in a non-emergency. The ADA says otherwise.
"The ADA says people with disabilities are not second-class citizens," Rich says. "It makes [a person] a second-class citizen to say [he or she] can’t participate in the same activities you and I do. They should be able to participate, and you have to make reasonable accommodations."
Southwest Washington Medical Center decided to improve its accommodations for the deaf nearly 10 years ago, and now the administrator in charge of the program says any health care provider would be well advised to do the same. When the hospital wanted to address the problem, it began by meeting with representatives of the local deaf community, Maynard says. The hospital and the community representatives decided a consultant should be hired to help the hospital improve its services, and the deaf representatives selected the consultant.
"The committee also determined that it would be best to have someone full time on staff whose sole focus is accessibility and nondiscrimination for the patients and families we served, as well as in our own workplace," she says. "They wanted to have a full-time interpreter on staff, also, so they hired me to fulfill both needs."
Maynard is available for interpreting as a main function of her job, but she also contracts with several interpreters in the community. The committee helped the hospital set up an overall set of policies and procedures regarding accommodation for the deaf, and then the committee disbanded. Maynard still works with the consultant occasionally when she encounters difficult cases.
One recent example involved a 16-year-old deaf girl delivering a baby at the hospital. The hospital offered interpreting services to the girl at no cost, but the girl’s mother refused, saying she would interpret instead. "Her language and interpreting skills were not at a level we were comfortable with, plus there were some anger issues, so we felt there would not be effective communication," she says. "The patient herself was too frightened to insist on the assistance she needed."
After consulting with some experts in civil rights and disabilities, Maynard determined that the clinicians needed an interpreter as much as the patient so that they could properly do their jobs. She was ready to insist that the mother allow a professional interpreter, but the situation was resolved without a confrontation.
"A nurse with deaf children took the mom aside and, mother to mother, convinced her that it was best to have a qualified interpreter come in," she says. "Even with an extensive program in place, there still are these moments when we don’t quite know what to do and have to work hard to find the right solution."
The program apparently works so well at Southwest Washington Medical Center that deaf patients treated there at one time occasionally call Maynard from their hospital beds in another facility, in another state, seeking her help when they can’t get help where they are admitted.
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