Whether deliberate indifference constitutes intentional discrimination under Section 504 of the Rehabilitation Act?
On November 28, 2007, Susan Liese, accompanied by her husband, went to the emergency room at Indian River Memorial Hospital (“Hospital”) due to dizziness and chest pains. Both Mr. and Mrs. Liese have hearing impairments and communicate primarily through sign language.
Mrs. Liese claimed that she did not understand the nature of her condition and that hospital staff refused her repeated requests for a sign language interpreter. For example, hospital staff conducted a battery of tests on Mrs. Liese but did not tell her why they were necessary. After the tests, a doctor informed her that she needed emergency gall bladder surgery and explained the surgery “through a combination of speaking, pantomime, and note-writing.” Mrs. Liese testified that at this point she requested an interpreter but the doctor gave no response.
After this meeting, Mrs. Liese sent a text message to her daughter Nancy explaining that she was to undergo emergency surgery and that no interpreter had been provided. Nancy then called the hospital to request an interpreter for her mother. A nurse responded that “they were working on it” and that a “video box” that was as good as an interpreter would be provided.
The next day, Mrs. Liese underwent successful surgery to remove her gallbladder. Mrs. Liese testified that after the surgery, the same doctor visited her, looked at her chart, and told her she could go home. She added that she could not understand the rest of what he had said.
In November of 2009, Mrs. and Mr. Liese brought a suit against the hospital alleging it had failed to provide a sign language interpreter necessary to ensure effective communication in violation of § 504 of the Rehabilitation Act of 1973. The Lieses requested compensatory damages, which are only available under § 504 if the hospital committed intentional discrimination. The District Court for the Southern District of Florida granted the hospital’s motion for summary judgment, holding that while the hospital may have been negligent, negligent conduct was not sufficient to show a violation of § 504. The Lieses appealed the District Court’s ruling to the Eleventh Circuit Court of Appeals.
The Lieses argued that the hospital violated § 504 by failing to provide the appropriate auxiliary aids necessary to afford them an equal opportunity to benefit from the hospital’s services. According to the court, whether an auxiliary aid is effective in affording a patient an equal opportunity to benefit from medical treatment depends on “the nature, significance, and complexity of the treatment.” For example, because of the importance of understanding the necessity, risks, and procedures surrounding emergency surgery, auxiliary aids limited to written notes, body gestures, and lip-reading may be ineffective in ensuring that a patient with a hearing impairment receives equal opportunity to benefit from the treatment.
Focusing on the emergency nature of Mrs. Liese’s surgery, the court held that the hospital’s failure to provide an interpreter did in fact violate § 504. Mrs. Liese testified that she did not understand her condition, prognosis, or proposed treatment and that the hospital staff did not explain the battery of tests conducted on her. While the doctor did tell Mrs. Liese the kind of surgery she would undergo, the court held that the nature and severity of the surgery required more than this to ensure effective communication under § 504.
The next question posed to the court was whether the actions of the medical staff can be attributed to the hospital. By analogy, the Eleventh Circuit relied on the rule set by the Supreme Court in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). In deciding the question of organizational liability under Title IX of the Civil Rights Act, the Supreme Court in Gebser held that such liability requires the action of an “official”—meaning one who at a minimum has authority to address the alleged discrimination and who has actual knowledge of discrimination in the organization's programs and fails to respond.
The Lieses argued that every hospital employee who knew of the Lieses’ impairment and had the authority to provide an interpreter is an “official” within the meaning of Gebser. The hospital on the other hand argued that Gebser requires the action of a hospital “policy maker”—someone capable of making an official decision. The Eleventh Circuit disagreed with both interpretations, holding that an “official” under Gebser is someone who has “substantial supervisory authority within an organization's chain of command so that, when dealing with the complainant, the official had complete discretion at a ‘key decision point’ in the administrative process.” Here, the court concluded that the doctor who treated Mrs. Liese had complete discretion over whether to provide the Lieses with an interpreter. This finding was supported by the hospital’s written communication policy as well as the treating doctor’s seniority at the hospital. Therefore the court concluded that the hospital could be found liable for the doctor’s failure to provide a sign language interpreter to Mrs. Liese.
To recover compensatory damages under § 504, the Lieses had to show that (1) the hospital violated their rights under § 504, and (2) that the hospital did so with discriminatory intent. As noted above, the Eleventh Circuit held that hospital staff violated the Lieses rights under § 504 and that their actions can be attributed to the hospital. The only question that remained was whether the hospital personnel acted with the necessary discriminatory intent.
Before this case, the Eleventh Circuit had yet to determine the standard for discriminatory intent under § 504. The Lieses argued that the standard should be “deliberate indifference,” which means that the hospital knew that harm to a right protected by § 504 was substantially likely and failed to act on that likelihood. The alternative standard is “discriminatory animus” which requires a showing of prejudice, spite, or ill will. Citing the decisions of other federal circuit courts, the Eleventh Circuit held that the Lieses may demonstrate discriminatory intent through a showing of deliberate indifference. The court reasoned that a discriminatory animus standard would inhibit the law’s ability to remedy known discrimination that lacks ill will.
The court then applied the “deliberate inference” standard to the facts of the case. Relying on Mrs. Liese’s allegations of repeated refusals for an interpreter and the fact she did not understand the nature and need for her surgery, the court held that there was “ample evidence” to support a finding that the doctor acted with deliberate indifference.
The Eleventh Circuit reversed the district court’s grant of summary judgment on the Lieses’ § 504 claim, finding that the facts support a finding that the hospital failed to provide a sign language interpreter in violation of § 504 and did so with discriminatory intent.
This case represented the first time the Eleventh Circuit took up the issue of whether a defendant’s deliberate indifference was sufficient to establish a claim for compensatory damages under § 504. The outcome was not unexpected as the court noted that all but one of the federal Circuit Courts have similarly adopted the deliberate indifference standard. This standard is important for plaintiffs because places of public accommodation rarely intentionally discriminate against people with disabilities. Most disability discrimination by these entities is the result of their ignorance of § 504 requirements. If the court had adopted the stricter “discriminatory animus” standard, it would be incredibly difficult for plaintiffs to prevail in § 504 claims for compensatory damages.
The Eleventh Circuit’s ruling is also important to hospitals and other places of public accommodation operating within the jurisdiction. These entities should take note of the court’s adoption of the deliberate indifference stand and review their respective communication policies to ensure compliance with § 504. They should also keep in mind the new § 504 organizational liability standard put forth by the court. These entities can now be held liable § 504 for the discriminatory actions of employees that hold “substantial supervisory authority.”