from the United States District Court No. 1:14-cv-21803-KMW
for the Southern District of Florida.
HULL, MARTIN, and EBEL, [*] Circuit Judges.
Cheylla Silva and John Paul Jebian are profoundly deaf. On
numerous occasions, they presented at Defendants'
hospitals but allegedly could not communicate effectively
with hospital staff because of the absence of certain
auxiliary aids or services. Federal law requires, however,
that healthcare providers offer appropriate auxiliary aids to
hearing-impaired patients where necessary to ensure effective
communication. Failure to do so constitutes discrimination
against disabled persons. Plaintiffs bring this lawsuit under
Title III of the Americans with Disability Act (ADA), 42
U.S.C. §§ 12181-12189, and Section 504 of the
Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794,
alleging unlawful discrimination by Defendants Baptist
Hospital of Miami, Inc. (Baptist Hospital), South Miami
Hospital, Inc. (SMH), and Baptist Health South Florida, Inc.
(Baptist Health) (collectively, Baptist).
district court awarded summary judgment to Defendants. It
held that Plaintiffs lacked Article III standing to seek
prospective injunctive relief because they did not show that
they were likely to return to the hospitals in the future. In
addition, the district court denied damages on the grounds
that Plaintiffs failed to show any instances where
communication difficulties resulted in any actual adverse
medical consequences to them, and otherwise failed to
articulate what they did not understand during their hospital
visits. The court concluded that records showed that
Plaintiffs communicated their chief medical complaints and
understood the treatment plan and discharge instructions,
which foreclosed an ineffective-communication claim.
reverse the district court on these issues. Not only do we
conclude that Plaintiffs have standing to seek injunctive
relief, we also reject the district court's substantive
standard for liability. For an effective-communication claim
brought under the ADA and RA, we do not require a plaintiff
to show actual deficient treatment or to recount exactly what
the plaintiff did not understand. Nor is it a sufficient
defense for a defendant merely to show that a plaintiff could
participate in the most basic elements of a doctor-patient
exchange. Rather, the relevant inquiry is whether the
hospitals' failure to offer an appropriate auxiliary aid
impaired the patient's ability to exchange medically
relevant information with hospital staff.
conclude that Plaintiffs have offered sufficient evidence to
survive summary judgment. The record is rife with evidence
that, on particular occasions, Plaintiffs' ability to
exchange medically relevant information was impaired.
Ultimately, however, to win monetary damages-which Plaintiffs
seek in addition to equitable relief-Plaintiffs still must
show that Defendants were deliberately indifferent in failing
to ensure effective communication. The district court did not
address this question. Thus, we REVERSE the district
court's order granting summary judgment to Defendants,
and REMAND for further proceedings, including consideration
of the deliberate-indifference issue.
Silva and Jebian are deaf and communicate primarily in
American Sign Language (ASL). Both of them can read and write
in simple English-Jebian communicates with "very
basic" proficiency and Silva reads at a fifth-grade
level. Doc. 78 ¶¶ 60, 81. Defendants are two
hospitals, Baptist Hospital and SMH, and their parent
organization, Baptist Health. As places of public accommodation and
recipients of federal Medicaid funds, Defendants are
obligated to follow the mandates of the ADA and RA, which
require healthcare facilities to ensure effective
communication between hearing-impaired patients and medical
staff. 28 C.F.R. § 36.303(c)(1); 45 C.F.R. §
separately visited Defendants' facilities numerous times.
They allege that, on many of those occasions, Defendants
failed to provide appropriate auxiliary aids necessary to
ensure effective communication. While Plaintiffs requested live on-site
ASL interpreters for most visits, Defendants relied primarily
on an alternative communication method called Video Remote
Interpreting (VRI). With this internet-connected machine, a
live ASL interpreter is located remotely and communicates
with the doctor and patient through a portable screen located
in the hospital.
many of Plaintiffs' hospital visits, Defendants attempted
to use this device. However, the VRI machines routinely
suffered from technical difficulties that either prevented
the device from being turned on, or otherwise resulted in
unclear image quality, thereby disrupting the message being
communicated visually on the screen. When the VRI machine was
unavailable or malfunctioned, hospital staff would often rely
on family-member companions for interpretive assistance, or
would exchange hand-written notes with Plaintiffs themselves.
On some occasions, after a VRI breakdown, an on-site ASL
interpreter would be called to assist with communication.
These instances occurred both when Plaintiffs presented as
patients, and when Jebian accompanied his father to
Defendants' facilities for treatment.
brought this lawsuit under the ADA and RA for unlawful
discrimination. They alleged that Baptist's facilities
failed to provide appropriate auxiliary aids to ensure
effective communication with hospital staff. They sought
injunctive relief and monetary damages. The district court
awarded summary judgment in Defendants' favor. It held
that Plaintiffs lacked Article III standing for injunctive
relief and, further, that they had not shown a "genuine
dispute as to any material fact" regarding a violation
of the ADA and RA. Fed.R.Civ.P. 56(a). The district court
faulted Plaintiffs for failing to show that the denial of
requested auxiliary aids resulted in any adverse medical
consequences or inhibited their communication of the
"chief medical complaint" or "instructions
under the treatment plan." Doc. 133 at 30, 33-34.
Moreover, in the district court's view, Plaintiffs'
inability to articulate what they could not understand on
particular visits was fatal to their effective-communication
RA claims are governed by the same substantive standard of
liability. See, e.g., Cash v. Smith, 231
F.3d 1301, 1305 (11th Cir. 2000). To prevail, a disabled
person must prove that he or she was excluded from
participation in or denied the benefits of the hospital's
services, programs, or activities, or otherwise was
discriminated against on account of her disability. Shotz
v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001). Such
exclusion, denial, or discrimination occurs when a hospital
fails to provide "appropriate auxiliary aids and
services" to a deaf patient, or a patient's deaf
companion, "where necessary to ensure
effective communication." 28 C.F.R. §
36.303(c)(1) (emphases added). That is the touchstone of our
proving the failure to provide a means of effective
communication, on its own, permits only injunctive relief.
See, e.g., McCullum v. Orlando Reg'l
Healthcare Sys., Inc., 768 F.3d 1135, 1147 n.8 (11th
Cir. 2014). To recover monetary damages, a disabled person
must further show that the hospital was deliberately
indifferent to her federally protected rights. See,
e.g., Liese v. Indian River Cty. Hosp. Dist.,
701 F.3d 334, 344, 345 (11th Cir. 2012) (stating that, to
recover compensatory damages, a disabled plaintiff must show
"that the [h]ospital's failure to provide
appropriate auxiliary aids was the result of
intentional discrimination" and
"deliberate indifference is the appropriate standard for
defining discriminatory intent") (internal quotation
marks omitted). Resolving the case solely on the
ineffective-communication issue, the district court declined
to consider deliberate indifference.
reviewing the record evidence in the light most favorable to
the Plaintiffs, we hold that summary judgment was
improper. First, the district court
erroneously denied prospective injunctive relief on the basis
of Article III standing, concluding in error that Plaintiffs
did not show they were likely enough to return to the
hospitals in the future or otherwise to suffer discrimination
again at those facilities. Second, the district court
improperly rejected all relief based on its conclusions that
Plaintiffs did not identify any actual adverse medical
consequences resulting from ineffective communication, and
did not specify what they were unable to understand or convey
during their visits, such as the inability to comprehend
their treatment plan and discharge instructions or to
communicate their principal symptoms.
district court's legal standard was flawed. Instead, the
correct standard examines whether a hospital's failure to
offer an appropriate auxiliary aid impaired a deaf
patient's ability to exchange medically relevant
information with hospital staff. Applying that standard
to this record, construing all facts in Plaintiffs'
favor, we conclude that their claims are suitable for a
finder of fact. We therefore reverse the district court's
order awarding summary judgment to Defendants and remand.
Because Plaintiffs also must prove deliberate indifference to
win monetary relief- an issue the district court did not
decide-we remand for consideration of that question as well.
Plaintiffs Have Standing for Injunctive Relief
lawsuit, Plaintiffs seek both injunctive relief and
compensatory damages. Their request for a permanent
injunction is predicated on their claim that Defendants
maintain unlawful policies and practices that result in
ongoing discrimination against hearing-impaired persons. The
question on appeal is whether Plaintiffs have Article III
standing to proceed with their claims for injunctive relief.
To satisfy the injury-in-fact requirement for constitutional
standing, a plaintiff seeking injunctive relief in relation
to future conduct "must show a sufficient likelihood
that he will be affected by the allegedly unlawful conduct in
the future." Houston v. Marod Supermarkets,
Inc., 733 F.3d 1323, 1328 (11th Cir. 2013) (internal
quotation marks omitted). This requires the patients to
establish "a real and immediate-as opposed to a merely
conjectural or hypothetical-threat of future injury."
See id. at 1334 (internal quotation marks omitted).
To establish such a threat, each patient must show that (1)
there is a "real and immediate" likelihood that he
or she will return to the facility and (2) he or she
"will likely experience a denial of benefits or
discrimination" upon their return. See
McCullum, 768 F.3d at 1145-46.
ground, the district court held that Plaintiffs lacked
Article III standing, reasoning that "it is merely
speculative that Plaintiffs will return to Defendants'
hospitals and there is no reliable indication that the VRI
technology will malfunction in the future." Doc. 133 at
34. We disagree.
ADA context, our standing inquiry has focused on the
frequency of the plaintiff's visits to the
defendant's business and the definitiveness of the
plaintiff's plan to return. See Houston, 733
F.3d at 1337 n.6. Here, it is evident that Plaintiffs have
offered evidence sufficient to support a finding that (1)
they will return to Defendants' facilities; and (2) they
"will likely experience a denial of benefits or
discrimination" upon their return. See
McCullum, 768 F.3d at 1145-46.
example, Silva testified in a declaration: "Due to many
factors, including the location of my doctors, the fact that
Defendants have all of my medical records and history, the
proximity to my home, and history of prior care/treatment, it
is likely I will visit and receive treatment at
Defendants' hospitals." Doc. 61-13, ¶ 22.
Jebian asserted the same in his declaration, and added that
he would also go to that same hospital "as a companion
of my father in the near future, due to his ongoing health
concerns and required follow-up, " Doc. 61-14 ¶ 17.
See Houston, 733 F.3d at 1337 (concluding that
because the plaintiff had been to the defendant's store
in the past, wanted to return, and took frequent trips past
the store, it was "likely" she would return to the
store, and therefore the threat of future injury was not
merely conjectural or hypothetical).
more, Plaintiffs collectively have attended Defendants'
facilities dozens of times in the years preceding this
lawsuit, and Silva has attested that she has recurring health
issues. Further, Plaintiffs routinely experienced problems
with the VRI devices not working at all or failing to
transmit a clear screen image, so there is good reason to
believe that will continue to happen at Defendants'
facilities when Plaintiffs do return.
v. Orlando Regional Healthcare System, Inc., 768 F.3d
1135 (11th Cir. 2014) does not compel a different conclusion.
In that case, there was no evidence that the deaf patient
would return to the hospital after a successful surgery
removed "the organ causing the problem."
Id. at 1146 (internal quotation marks omitted,
alteration omitted). Nor was there evidence that the hospital
would deny his future requests for an in-person interpreter.
given Plaintiffs' numerous visits to Defendants'
facilities and the wealth of evidence showing repeated VRI
malfunctions, we conclude that Plaintiffs have Article III
standing to proceed with their claims for injunctive
Plaintiffs Have Offered Evidence Sufficient to Defeat
district court awarded Defendants summary judgment because it
found no triable issue of fact regarding the ineffectiveness
of the communication aids offered at Defendants'
hospitals. We first analyze the proper standard for
evaluating effective-communication claims under the ADA and
RA, and then we examine the evidence offered to overcome
The Standard for Effective Communication
district court faulted Plaintiffs for failing to show two
things. First, Plaintiffs could not identify any instances
where the means of communication resulted in actual
misdiagnosis, incorrect treatment, or adverse medical
consequences. Second, Plaintiffs could not articulate what
information they were unable to understand or convey during
their hospital visits. More specifically, there was no
evidence Plaintiffs could not communicate their chief medical
complaint or understand a treatment plan and discharge
instructions. We address these requirements in turn,
ultimately concluding that they are not the appropriate tests
for evaluating effective-communication claims. Instead, the
correct standard examines whether the deaf patient