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Silva v. Baptist Health South Florida Inc.

United States Court of Appeals, Eleventh Circuit

May 8, 2017


         Appeal from the United States District Court No. 1:14-cv-21803-KMW for the Southern District of Florida.

          Before HULL, MARTIN, and EBEL, [*] Circuit Judges.

          EBEL, Circuit Judge.

         Plaintiffs 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).

         The 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.

         We 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.

         We 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.


         Plaintiffs 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.[1] 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. § 84.52(d)(1).

         Plaintiffs 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.[2] 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.

         During 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.[3]

         Plaintiffs 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 claims.


         ADA and 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 inquiry.

         But 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.

         After reviewing the record evidence in the light most favorable to the Plaintiffs, we hold that summary judgment was improper.[4] 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.

         The 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.

         I. Plaintiffs Have Standing for Injunctive Relief

         In this 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.

         On this 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.

         In the 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.

         For 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).

         What is 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.[5]

         McCullum 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. Id.

         Accordingly, 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 relief.[6]

         II. Plaintiffs Have Offered Evidence Sufficient to Defeat Summary Judgment

         The 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 summary judgment.

         A. The Standard for Effective Communication

         The 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 ...

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