New Hospital Technology Is Target of Lawsuit

From: New York Law Journal - New York,NY,USA - Feb 15, 2005

Bethany Broida
Legal Times
02-15-2005

Elizabeth Gillespie had been suffering from intense stomach pain, nausea and vomiting for days. Finally, the 46-year-old former Gallaudet University professor, at the urging of her doctor and her husband, went to the emergency room.

She was admitted immediately. But that turned out to be the simplest part of the evening.

Gillespie, who is deaf, couldn't tell anyone her symptoms. No one at the emergency room at Laurel Regional Hospital, she says, could communicate with her. She tried lip reading with hospital staff members for hours before giving up. Her husband, who accompanied her to the hospital, is also deaf.

"We weren't able to communicate for the first four hours in the ER," she says in an e-mail interview. "We didn't know what was going on. Not only was I in severe pain, I was scared and frustrated. Nobody would write [anything] down to tell us what was going on."

The hospital, she says, had no sign language interpreter available. Instead, she says, the hospital relied on a video conferencing system to eventually put Gillespie in touch with an interpreter at a remote location. But ultimately, she says, she ended up confused about her condition.

"I was treated like an animal devoid of intelligence," she says. "All because I couldn't hear."

With health care costs soaring, hospitals across the country are turning to new technologies, such as video remote interpreting technology, which connect deaf patients with off-site interpreters. But some say deaf patients' rights to fully participate in and be informed about their medical treatment are being compromised in the name of cost-cutting.

Gillespie and her husband, David Irvine, are two of seven deaf people suing Laurel Regional Hospital. In what the suit's lawyers say is potentially a test case with national implications, the plaintiffs claim that use of the new video remote interpreting technology is an inadequate alternative to hospitals providing live on-site interpreters for critical medical situations.

The use of this new technology, they claim in a suit to be heard by Judge Deborah Chasanow in the U.S. District Court in Greenbelt, Md., violates provisions of the Americans With Disabilities Act. The plaintiffs seek an unspecified amount of damages and an injunction requiring the hospital to provide deaf patients with auxiliary aids and services for more effective communication.

Disability experts say it's unclear under the law when hospitals must use on-site interpreters.

VRI works in a similar way to video conferencing. The hospitals are equipped with video cameras, monitors and microphones, which allow the patient, the doctor and the off-site interpreter to see and communicate with each other.

For Gillespie, being given access to the VRI machine didn't end her woes that day in November 2003. While she says the conferencing helped tremendously -- finally, she was able to understand what the doctors were telling her -- the session lasted only 15 minutes.

Hours later, without use of the machine or an interpreter, doctors unsuccessfully tried to communicate with Gillespie about her condition. The diagnosis, she says, wasn't written down, and after 10 hours in the ER, she grew frustrated and left. Two days later, a physician at another emergency room told her she had congestive heart failure.

"All I kept thinking," she says, "[is] what if I had died after I got home because we didn't understand the severity of the medical condition? What if I had remained clueless and didn't seek further treatment?"

INDIVIDUAL NEEDS

There are an estimated 28 million deaf people across the country and the Washington region attracts large numbers of the deaf because of the presence of Gallaudet University and the government printing industry, which often employs deaf workers.

The ADA mandates equal access to health care for the disabled, and requires that hospitals provide "effective means of communication for patients, family members, and hospital visitors who are deaf or hard of hearing."

But disability experts say the act doesn't necessarily require hospitals to fully accommodate the needs of deaf patients by offering interpreters on site.

"You have to make a reasonable accommodation," says John Banzhaf III, a professor at George Washington University Law School, "but that includes balancing of costs and other factors. It doesn't mean you necessarily have to use the best way."

Banzhaf says an in-person interpreter is probably ideal, but, he says, it's expensive and time-consuming. "Anyone would be happier and more comfortable having someone in the room with them," he says, "but it does seem to me you can get through reasonably well with a video device."

Robert Dinerstein, associate dean and professor of ADA law at American University Washington College of Law, agrees that the ADA does not require that hospitals provide the best possible solution.

"You are not entitled to the best modification or the one you prefer, but one that is adequate," he says.

However, Dinerstein says that required accommodations under the act are tailored to the individual. What will work for one person, he says, may not be legally adequate for someone else.

Pamela White, a partner at Ober, Kaler, Grimes & Shriver in Baltimore, who represents Laurel Regional Hospital, declines to comment on the suit or the allegations directly. But she says, "The unique personal and medical circumstances will drive what interpreter services are available to individual patients."

"The needs of each patient are addressed on an individual basis," White says, adding, "hospital policies and procedures are absolutely in compliance with the ADA."

Steven Smith, an Ober Kaler partner in D.C. also involved in the suit, says the hospital expects to file its answer this week.

MIXED MESSAGES

The lawsuit charges that the methods employed by Laurel to serve its deaf patients, however, are inadequate. "In specific instances facing these plaintiffs," the suit says, "VRI was an insufficient mode of communication."

Lewis Weiner, a partner at D.C.'s Sutherland Asbill & Brennan who is handling the case pro bono for the plaintiffs, says the suit "is not an indictment of this type of communication. ... We understand its value in certain situations."

But Weiner says his clients visited the emergency room at Laurel with serious ailments, ranging from heart and lung problems to meningitis, and they required the assistance of a live on-site interpreter in order to fully participate in and make informed decisions about their treatment.

"Basically, it doesn't work well for people who are really sick, can't focus well enough, or can't get positioned correctly," says Elaine Gardner, director of the disability rights project at the Washington Lawyers' Committee for Civil Rights and Urban Affairs and co-counsel on the suit. "We don't want to paint this as a bad thing. The technology is great for less serious ailments, but it has problems."

The other plaintiffs in the suit list a litany of complaints with the VRI equipment at Laurel, citing problems with its mobility, with seeing the monitor, and with the hospital staff, which, the suit charges, repeatedly had trouble making the equipment work.

One of the most serious complaints involves plaintiff Erin Whitney. When Whitney, who was a College Park, Md., resident at the time, arrived at the Laurel ER, the suit alleges, she was vomiting and fainting. Eventually, she was placed in a room that contained VRI equipment, but because she was unable to sit up and the video transmission was of such poor quality, she was unable to fully communicate with the interpreter, the suit says. Whitney claims in the suit that she didn't fully appreciate it when the doctor said she could have meningitis, a potentially life-threatening illness.

Whitney left the hospital the next day. Her discharge papers made no mention of the meningitis, instead diagnosing her with the flu, the suit says, but her condition worsened and she returned to the emergency room later the same day.

This time the pain was so severe that she could not see the VRI monitor at all, the suit says, and so the hospital asked Whitney's friend, who was also deaf, to relay the interpreter's messages. Again, the doctor told her she may have meningitis and this time recommended a spinal tap.

The hospital performed the spinal tap without Whitney's written consent, the suit charges, and provided no information about the procedure or the follow-up care.

Whitney's spinal tap revealed that she did indeed have meningitis and she was admitted to the hospital. For the rest of her stay, a VRI device was not available, the suit claims.

Tracie Veihmeyer, a hospital spokeswoman, also declines to discuss any specifics of the suit, but disputes the assertion that the hospital staff was poorly trained on the equipment, saying staff members receive VRI instruction on multiple occasions.

IMMEDIATE ACCESS

Veihmeyer says the hospital turned to VRI because it provides immediate communication for patients. The hospital, she says, had problems finding in-person interpreters.

The company that provides Laurel Regional with its VRI device says that with the technology, patients are able to get immediate care, usually waiting less than 15 minutes for a remote interpreter instead of one to three hours for a live interpreter.

"We are the patient's voice in the doctors ear and the voice of the doctor or nurse in the patient's ear," says Robert Fisher, president of Deaf-Talk, which provides the video interpreting service to hospitals nationwide.

Fisher says his company began installing VRI units in hospitals in 2000. By 2002, Deaf-Talk had 30 hospital clients, and today it has more than 200, including many hospitals in the D.C. metropolitan area, such as Washington Hospital Center, Howard University Hospital, Shady Grove Adventist Hospital, and Frederick Memorial Hospital.

And hospitals save money. According to statistics provided by Deaf-Talk, hospitals on average spend over $30,000 a year to use on-site sign language interpreters, while video remote interpreting can cost half that amount. Typically, hospitals must pay a two-hour minimum and travel time for an on-site interpreter service, while average consultations usually last only 15 minutes. In addition, hospitals incur another fee for unscheduled sessions with on-site interpreters -- which would include all emergency room visits.

In contrast, VRI customers usually pay a monthly fee for the equipment and pay for the translation service by the minute.

However, even Fisher concedes that VRI is best when used as part of a package of interpretation services offered by a hospital.

"We provide immediate communication to get people started," he says. "VRI is meant to be used as a supplement to other types of interpretation."

That's the right approach, says plaintiff Gillespie.

"In some situations, VRI may be good enough," she says. "But it is not a cookie-cutter answer to the interpreting dilemma."

On Feb. 10, Laurel Regional Hospital filed its answer to the plaintiffs' complaint. In the answer, the hospital admits the plaintiffs sought and received medical treatment at the hospital, but denies that it violated any of the patients' rights or federal law in treating the patients.

The hospital also denies allegations in the complaint that a live sign language interpreter "is the sole means of effective communication in an emergency room setting."

The answer was signed by White and Neil Duke, also of Ober Kaler.

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