The Americans with Disabilities Act’s threshold requirement for effective communications between deaf patient and healthcare provider continues to generate much misunderstanding, disagreement, and eventually litigation.
Effective communication, the courts have decided, depends upon what happens case by case. But in the end, the key question is whether the patient can participate meaningfully concerning his healthcare, whether the patient has an equal opportunity, through an appropriate auxiliary aid such as an interpreter, to communicate medically relevant information effectively. By definition, there is a subjective, patient by patient, element to what is or is not effective communication.
But what if the patient suffers from chronic depression and anxiety? What if the patient is alleged to be suicidal and is being evaluated for involuntary commitment for treatment of mental illness? What is or is not effective communication?
Defining Effective Communication
These were the issues decided in a recent case by the U.S. Court of Appeals for the 11th Circuit, a court at the forefront of ADA effective communication law with several big decisions since just 2017.
In 2018, the 11th Circuit decided that Harold Crane, a deaf patient who was being evaluated by Palmetto General Hospital in Florida for involuntary commitment, had rights to effective communication and a sign language interpreter, rights that were violated by his being unable to communicate about his health care.
The appeals court reversed the lower court’s dismissal of Crane’s ADA discrimination case.
As Crane testified in his case:
“I was never able to thoroughly express my feelings [about] the traumads I have experienced in my life . . . during any of the doctor’s evaluations and daily interactions with the Hospital’s nurses. For example[,] besides writing down that I was depressed, I was never provided the opportunity during my hospitalization to go into detail with the Hospital’s staff, nurses, and doctors about why I was depressed. I was only ever able to write down that those were the issues that bothered me but was never able to go into detail and thoroughly explain my feelings with regard to each of the traumas I have experienced…”
The appeals court decided:
“At a bare minimum, this provides evidence that Crane could not understand and suffered a real hindrance due to his disability to provide material medical information with his health care provider. Thus, a genuine issue of material fact exists as to the question of whether there was effective communication…
Therefore, we conclude that Crane’s claims are suitable… We reverse the district court’s order [of dismissal]… on the issue of effective communication.”
The Baker Act
In 2011, “the Miami-Dade Police Department responded to a call that Crane was suicidal and transported Crane to Palmetto General Hospital [PGH] for an involuntary commitment examination” under a Florida law known as the Baker Act.
“The Baker Act allows an authorized person, such as a police officer, to initiate an involuntary examination of an individual whom the officer believes may have a mental illness, is substantially likely to cause serious bodily harm to himself or others, and refuses a voluntary examination or is unable to understand the need for an examination. Fla. Stat. § 394.463. The Baker Act receiving facility, where the involuntary examination takes place, has 72 hours within which to determine whether to release the individual into the community, admit him voluntarily for psychiatric care, or petition a court to commit him involuntarily for psychiatric care.”
According to the appeals court:
“During a Baker Act evaluation, a health care provider merely determines whether the patient is a danger to himself or others and does not engage in complex mental health treatment or diagnosis.
Upon arrival at PGH, Crane was treated for alcohol related issues, including suspected consumption of rubbing alcohol. The next day, July 18, 2011, Crane was admitted to the hospital for medical reasons stemming from his alcohol intoxication.
Dr. Marjorie Caro evaluated Crane on July 18, 2011… and she determined Crane was not a threat to himself or others. During this Baker Act evaluation, Dr. Caro communicated with Crane through written notes and through her basic sign language skills.
On July 19, 2011, Crane remained in the hospital. On July 20, 2011, an ASL interpreter was present for the first time during Crane’s hospital stay to assist Dr. Caro in communicating with Crane. Dr. Caro discharged Crane from PGH later that day. Crane contends he repeatedly asked for a sign language interpreter throughout his entire hospital stay.”
Dr. Caro testified that she had basic sign language skills, which she learned to communicate with her daughter who has a developmental disability, according to the appeals court.
Concerning her examination of Crane, Caro further testified:
“[w]e have been spending time trying to explain to him first by writing and communication going back and forth explaining the situation of the Baker Act. Since he was not able to understand the whole process, we were able to get an interpreter with [the] name of Stacy. [She] was very helpful to communicate with him.”
The appeals court decided that the lower court applied the wrong legal reasoning and did not go far enough in evaluating whether Caro’s communication methods were effective for Crane.
The key is what Crane understood and could communicate with Caro and the hospital, not whether the health care providers believed they had followed the Baker Act requirements for determining “whether the patient is a danger to himself or others” and if so, must then be involuntary committed to the hospital.
Indeed, as Crane himself testified: “I was never provided the opportunity during my hospitalization to go into detail with the Hospital’s staff, nurses, and doctors about why I was depressed.” Crane himself felt he could not communicate effectively with hospital staff about his medical care.
That opinion, according to the federal appeals court, is the bottom line.
The court ruled:
“However, the focus of the Court’s inquiry … is not whether the medical personnel met the basic requirements of the Baker Act or the medical personnel’s ultimate decisions, but instead, is on Crane’s equal opportunity to communicate medically relevant information to hospital staff. “[T]he task of determining whether an entity … has provided appropriate auxiliary aids where necessary is inherently [case by case] …”
Dr. Caro effectively provided the key testimony herself, when she stated under oath that Crane would have benefited from additional explanation through an interpreter:
“Dr. Caro also stated that after her initial assessment she believed Crane “would benefit if somebody [came] and explain[ed] a little bit better the discharge, the medication, the treatment choices” and that an interpreter would have helped with that explanation and helped Crane, “if he ha[d] any other questions[,] to express himself.”
This admission, the court decided, may also indicate intent to discriminate against Crane because of his disability. Whether or not such intent exists, the 11th Circuit ruled, must be explored further by the lower court.
This case proves the axiom that sometimes, the answer is right there for all to see, as Dr. Caro testified – “ [This patient] would benefit if somebody [came] and explain[ed] a little bit better the discharge, the medication, the treatment choices” and that an interpreter would have helped with that explanation and helped Crane.”
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law. Also, check out the blog “Communication Equals Understanding: The Effects of Increased Language Access for Patients” for more information about this subject.
© Bruce L. Adelson 2018, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson is an Instructor of Family Medicine, Department of Family Medicine, at Georgetown University School of Medicine in Washington, D.C.
He has also taught at Cornell University, Auburn University, and the University of Baltimore School of Law.