BY Beth Anne Jackson And Allison Shelton, Brown & Fortunato
An August opinion by the U.S. Fifth Circuit Court of Appeals (Fifth Circuit), Francois v. Our Lady of the Lake Hospital, Inc., affirmed the dismissal of a claim of discrimination by plaintiff Damian Francois, a patient who was deaf and communicated mainly in American Sign Language (ASL). Our Lady of the Lake Hospital in Louisiana did not provide him with an on-site interpreter until the sixth day of his hospitalization for a gunshot wound to the back.
Although the plaintiff’s grandmother advised both front desk personnel and a doctor in the ED that Francois was deaf and “needed an interpreter,” the Hospital did not initially supply one. Francois was seen the day after admission by a Care Coordinator who communicated with him in ASL. Francois was advised to contact the Care Coordinator in the event that he 
needed any additional services. Francois never asked for additional services. For the first five days of his admission, the Hospital utilized various methods of communication with Francois, including a dry erase board, nonverbal cues, a board with pictures, family members as ASL interpreters, and a video remote interpreter. The nurses who attended the patient testified that he seemed to understand them and that he nonverbally indicated his understanding. However, when a friend of the patient visited the hospital, he requested an on-site interpreter because he realized that Francois did not comprehend that he was permanently paralyzed. An on-site interpreter was provided by the Hospital the next day. During this meeting, it was documented in the medical record that the patient’s family was concerned that Francois had not understood previous communications. The patient was in the hospital for another 31 days, during which time the Hospital provided an on-site interpreter 61 times.
Francois sued the Hospital under multiple provisions of federal law. However, the appeal to the Fifth Circuit dealt solely with Section 504 of the Rehabilitation Act of 1974 (RA) and Section 1557 of the Patient Protection and Affordable Care Act (ACA), both of which provide for a private cause of action for discrimination based on disability and other factors. These statutes have similar requirements for hospitals and other health care providers to provide appropriate auxiliary aids where necessary to afford patients equal opportunity to benefit from services. For individuals who are deaf, auxiliary aids can include, inter alia, interpreters on-site or through video remote interpreting (VRI) services, note-takers, written materials, the exchange of written notes, and other effective methods of making spoken information available to them.
To establish a case for compensatory damages under these federal statutes, and to survive summary judgment, Francois was required to show “evidence of intentional discrimination,” which means that he had to show that the Hospital knew that it was not communicating effectively with him. Moreover, to succeed, Francois needed to provide evidence that the Hospital had “actual notice that its failure to provide an on-site interpreter until April 16 denied Francois an equal opportunity to participate in the medical process.” Accordingly, in the Fifth Circuit, intentional discrimination cases turn on “the defendant’s subjective awareness of the need for further accommodation.”
In analyzing the summary judgment evidence, the Fifth Circuit reached some notable conclusions. First, although expert testimony demonstrated that the Hospital had “constructive notice” of the inefficacy of its communications with Francois, actual notice is required for compensatory damages cases to survive summary judgment. The Fifth Circuit next noted that the record was “devoid of evidence that the Hospital knew that its efforts to communicate with Francois were ineffective.” The Fifth Circuit also addressed the grandmother’s initial request for an interpreter: “A patient is not entitled to an on-site interpreter merely because he or someone on his behalf requests one. . . . Rather, a patient is entitled to an on-site interpreter when necessary.” Francois was directly asked if he needed additional services by a Care Coordinator using ASL. He did not ask for such services. When an on-site interpreter was later requested, the Hospital provided it for the remainder of his extended stay.
While the Hospital was ultimately not held liable for violations of the RA and ACA, it nevertheless endured more than four years of litigation. It should be noted that, in violation of regulations, the Hospital used family members for ASL interpretation. This cannot be recommended as a practice. However, it also used other auxiliary aids that are acceptable in many cases. Health care providers should review established guidance, create a policy that assists employees in determining when an on-site interpreter is necessary, and be prepared to provide on-site interpreters for significant health events in which the patient’s understanding may be crucial or in question.