Wave of settlements with deaf patients raises risk for hospitals
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Plaintiffs claimed hospitals did not offer adequate interpreters, other aid
Hospitals and other providers have settled a surprising number of lawsuits recently alleging failure to accommodate patients with hearing disabilities, which puts the spotlight on an obligation and liability risk that can easily slip under the radar. Risk managers should take note and review accommodation programs to makes sure they don't end up with the same financial loss, attorneys warn.
The Department of Justice (DOJ) recently announced the settlement of five more investigations with healthcare providers concerning access to services for persons who are deaf and hard of hearing, bringing the total to seven in the past year.
These recent settlements stem from the DOJ's ongoing partnership between the Civil Rights Division and U.S. Attorneys' offices nationwide. This partnership, announced in July 2012, is designed to target enforcement efforts of healthcare facilities to ensure that people with disabilities, especially those who are deaf or hard of hearing, have equal access to medical services. The five newly announced settlements — one with a hospital, two with rehabilitation centers, and two with private specialty practices — highlight the continuing focus on healthcare providers of all sizes and their policies and practices when providing medical information to deaf and hard-of-hearing patients or companions.
The DOJ representatives have made clear that they are quite interested in pursuing this type of case, says Melissa L. Taylormoore, JD, an associate with the law firm of McGuireWoods in Tysons Corner, VA. The common thread among the recently settled cases is that the plaintiffs alleged the hospitals did not provide adequate accommodation to either the patient or the patient's caregivers and relatives, she says.
Two questions arise from the allegations and settlements, Taylormoore says.
"Who is going to provide for the costs? Providers understand they have some obligation to provide a means of communication, but the sticking point often comes down to who is going to be paying for the services," she says. "These settlement agreements contribute to the case law that clearly shows the cost is going to fall to the provider."
The second question is just what is required to provide effective communication. (See the story on p. 87 for what is required by the Americans with Disabilities Act [ADA].)
"What may be effective in one situation may not be in another, so that means providers have to have a flexible enough system to be able to have that interactive process with patients and their caregivers," Taylormoore says. "Providers have to be willing to engage in that process before the actual care begins. It is a common theme that these problems arose before the patient even began treatment. It was during intake or when the patient was just trying to arrange treatment."
Patients are savvy about the law
Many healthcare providers are not adequately prepared for patients and others with hearing disabilities, says Nathan A. Kottkamp, JD, a partner with McGuireWoods in Richmond, VA.
"The time to figure out what duties you owe to these individuals is not when they show up at the door," he says. "It's long, long before that."
People affected by hearing disabilities tend to be "pretty savvy" about the law and required accommodations because they experience the difficulty of hearing loss every day, Kottkamp says. As a rule, this group of people will be quick to realize when a hospital is not meeting its obligations and will have connections with the right advocacy groups and legal representatives to take action.
"That's one of the general cautions for providers. This is something they should be proactive about because if you get it wrong, it won't be overlooked," Kottkamp says. "If you fail to meet your obligations, the people affected are going to call you on it, and the DOJ is ready to take action."
Healthcare providers tend not to be as well-prepared for accommodating those with hearing disabilities as they are with language translation services, Taylormoore notes. The bottom line is that providers have to make sure people with hearing disabilities have equal access to the services offered, and that definition is interpreted broadly. "That means from the beginning, from intake all the way through discharge," Taylormoore says. "And people must be put on notice of those resources. There will be a reasonableness standard, so for instance, having an interpreter on staff 24 hours a day may not be reasonable."
But even if the facility does not have an interpreter present at all times, there must be plans to make one available quickly, Taylormoore explains. If the provider is in a community known to have a high percentage of people with hearing disabilities — because a school for the deaf is nearby, for example, or you contract with a physician group that treats hearing loss — that facility will have more obligation to keep an interpreter available at all times.
"It's not unusual for large hospital chains to contract with interpreter services to have people on call at all hours, with specifications that they can get an interpreter to an emergency room within a certain time frame," Taylomoore says. "That tends to be the more practical solution."
Document offer and refusal
Kottkamp points out that in addition to offering interpreters, it is crucial to fully and accurately document the process. Records must show that you asked if any communication aid was necessary and must show the patient or caregiver's response — especially if there is a hearing disability and the offer is declined.
Kottkamp points out that in addition to offering interpreters, it is crucial to fully and accurately document the process.
"A lot of times someone will come in with a spouse or child who can interpret and they will say they prefer using that person instead of your translation services," Kottkamp says. "You want to document that so that there is no doubt about it later on. You want to avoid a situation in which the person claims you didn't offer any translation and so they had to use a child or spouse who was not able to properly translate the information."
That scenario is similar to one of the cases recently settled, in which a patient claimed that the hospital refused to provide an interpreter and left her to rely on her 11-year-old daughter. (See the story on p. 88 for additional information about some of the settled cases.)
In addition, the recent settlements make clear that the DOJ expects healthcare providers to offer interpretation to family members as well, whether the patient needs interpretation or not. This would apply in a situation, for example, in which the patient is not hearing-disabled, but a caregiver such as a spouse or parent is.
Failing to adequately accommodate the deaf could result in damages from malpractice cases alleging a lack of informed consent or other harm caused by a lack of communication, Taylormoore explains. If the DOJ becomes involved, civil damages also are possible.
If you are sued for failing to provide accommodations for someone with hearing disabilities, it will not be a case you want to fight to the end, Kottkamp says.
"These tend to be very sympathetic plaintiffs," he explains. "When people say they have been denied adequate healthcare because of a disability, that is not the kind of case you want to take before a jury. The vast majority of these cases settle because of those dynamics."
Nathan A. Kottkamp, JD, Partner, McGuireWoods, Richmond, VA. Telephone: (804) 775-1092. Email: email@example.com.
Melissa L. Taylormoore, JD, Associate, McGuireWoods, Tysons Corner, VA. Telephone: (703) 712-5479. Email: firstname.lastname@example.org.