IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

COMPLAINT IN INTERVENTION

The United States of America (“United States”), for its Complaint, states and alleges upon information and belief as follows:

INTRODUCTION

1. This is a civil action brought by the United States to redress discrimination on the basis of disability in violation of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., and that statute’s implementing regulation, 28 C.F.R. Part 36.
2. The United States alleges that defendants Trinity Regional Medical Center (“TRMC” or “Hospital”) and Trinity Health Systems (collectively, “Trinity” or “defendants”) failed to ensure that individuals who are deaf or hard of hearing are afforded opportunities to participate in or benefit from its services and facilities equal to the opportunities afforded others. 42 U.S.C. § 12182(a).
3. The United States further alleges that defendants excluded or denied equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to individuals because of the known disability of someone with whom such individuals have a relationship or association. 42 U.S.C. § 12182(b)(1)(E).
4. The United States Attorney General has reasonable cause to believe that defendants have engaged in a pattern or practice of discrimination under title III of the ADA, 42 U.S.C. § 12188(b)(1)(B)(i), and its implementing regulation at 28 C.F.R. § 36.503(a). The United States also has reasonable cause to believe that the allegations of this Complaint raise issues of general public importance related to ensuring effective communication for people who are deaf or hard of hearing under 42 U.S.C. § 12188(b)(1)(B)(ii) and 28 C.F.R. § 36.503(b).
5. The United States seeks declaratory and injunctive relief, damages, and civil penalties against defendants.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 12188(b)(1)(B) and 28 U.S.C. §§ 1331 and 1345. The Court may grant declaratory and other relief pursuant to 42 U.S.C. § 12188(b)(2) and 28 U.S.C. §§ 2201 and 2202.
7. Venue lies in this District pursuant to 28 U.S.C. § 1391, because the claims arose in the Northern District of Iowa.
8. This Court has personal jurisdiction over defendants because defendants own and/or operate the Hospital in the District and provide primary and secondary care services to persons residing in the District.

THE PARTIES

9. Plaintiff is the United States of America.
10. Defendant TRMC is a private, not-for-profit hospital, and defendant Trinity Health Systems is the parent corporation of TRMC and oversees its operations.
11. Defendants are a public accommodation within the meaning of title III of the ADA, 42 U.S.C. § 12181(7)(F), and its implementing regulation at 28 C.F.R. § 36.104.

FACTUAL ALLEGATIONS

Jessie Fox’s January 2009 Visit

12. Jessie Fox is an individual who is deaf, and a person with a disability under the meaning of the ADA, 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
13. Janice Fox is Jessie Fox’s mother. Janice Fox can hear. She is not fluent in American Sign Language (ASL) and does not know how to interpret medical terminology in ASL.
14. On January 23, 2009, Jessie Fox was admitted to the Hospital and diagnosed with an inflammation of the kidney caused by a bacterial infection, which required her to stay in the Hospital several days. The Hospital did not initially offer a sign language interpreter for Jessie Fox and instead required Jessie Fox’s mother, Janice Fox, to serve as a sign language interpreter, even though Janice did not want to interpret nor feel qualified to do so.
15. At one point during Jessie Fox’s hospitalization in January 2009, Janice Fox had to leave the Hospital for several hours. During this time, the Hospital did not secure a sign language interpreter for Jessie Fox. Instead, staff wrote on notepads and used hand gestures to communicate medical information to Jessie Fox regarding her temperature, blood pressure, and other medical issues.
16. In the absence of a sign language interpreter, Jessie Fox was confused by the efforts of medical staff to communicate with her and did not understand what they were trying to communicate. Moreover, Jessie Fox was not able to ask questions or express herself as she would have had a sign language interpreter been provided.

Jessie Fox’s March 2009 Visit

17. On March 9, 2009, Jessie Fox took her daughter Addison for a blood work appointment at the Hospital in anticipation of Addison’s surgery to remove her tonsils and adenoids, which was scheduled for March 16, 2009. Addison was then seven years old and was neither fluent in ASL nor qualified to interpret medical terminology.
18. Despite Jessie Fox’s request for a sign language interpreter at this appointment, the Hospital did not provide one. Instead, the nurse asked Addison to serve as the sign language interpreter for her mother.
19. The nurse attempted to communicate information regarding Addison’s blood work, medication, and other topics related to the upcoming surgery to Jessie Fox through Addison. Jessie Fox was confused about what the nurse was trying to communicate, especially because Addison was having a difficult time interpreting medical terminology and could not finger spell the words the nurse was using. Confused and frustrated by the demands of interpreting, Addison began to cry.
20. During the appointment, the nurse gave instructions regarding Addison’s medications. The nurse was attempting to tell the family that Addison should continue taking her prescribed antibiotic until the date of surgery; however, because of the lack of effective communication, Addison thought that the nurse was telling her to stop taking the prescribed antibiotic. Addison interpreted her understanding to her mother. Following what they thought were the nurse’s instructions, Addison stopped taking the antibiotic that day.
21. After Addison’s surgery, on March 16, 2009, her doctor found out that Addison had stopped taking the antibiotic prior to surgery. Addison’s doctor stated that had he known that Addison was not taking the antibiotics prior to surgery, he would never have performed the surgery, given the increased risk of infection.

Jessie Fox’s November 2009 Visit

22. On November 27, 2009, Jessie Fox went to the hospital because she was experiencing dizziness and fatigue; she brought her mother to the Hospital to accompany her. Despite Janice Fox’s request for an interpreter, the Hospital did not provide one because, as noted in the medical records, the video remote interpreting (VRI) laptop1 was “not functioning.” No attempts were made to secure an on-site interpreter, and Hospital records indicate that Janice Fox became “very upset that ‘no one knows how to operate the [VRI] equipment.’”
23. Janice Fox was again forced to serve as sign language interpreter for her daughter. Janice Fox was restricted in her ability to assist and provide emotional support for her daughter by the need to serve as her interpreter. Moreover, Janice Fox is not a qualified interpreter and does not know how to sign medical terminology, which makes it harder for Jessie Fox to understand what is being said.

Jessie Fox’s September 2010 Visit

24. On September 8, 2010, Jessie Fox went to the Hospital after twisting her ankle and falling on her knee. Staff attempted to connect to VRI but the “[c]omputer would not connect.” While the Hospital attempted to fix the connection for VRI, Addison was again forced to act as interpreter for more than an hour while Jessie was seen by physicians and underwent radiological procedures. Jessie Fox was very confused and had difficulty understanding the doctor and radiologist due to Addison’s limited ASL knowledge and unfamiliarity with medical terminology.

Jessie Fox’s December 2010 Visit

25. On December 17, 2010, Jessie Fox brought Addison to the Hospital because Addison was coughing uncontrollably. No interpreter or VRI service was offered or provided; as a result, medical staff communicated entirely with Addison, who was then nine years old, to help identify her symptoms, diagnose her condition, and prescribe her medications, all the while Jessie Fox was kept in the dark and could not meaningfully communicate with medical staff.

Renae Gailey’s Visits

26. Renae Gailey is an individual who is deaf, and a person with a disability under the meaning of the ADA, 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
27. On July 23, 2009, Renae Gailey was taken to the Hospital because she was in a car accident and suffered abrasions to her head and arms. Upon arrival, the Hospital neither offered to secure an on-site interpreter nor provide VRI for her. Instead, as the medical records attest, staff took her medical history “using written and non-verbal communications.” Ms. Gailey did not understand what staff was trying to tell her and she felt like she could not communicate her medical history or pain in any meaningful way. Frustrated, she left the Hospital and did not stay overnight.
28. On November 8, 2009, Ms. Gailey, who has a history of Type 1 diabetes, went to the Hospital because she was feeling very weak. Upon arrival, no effort was made by Hospital staff to secure an interpreter for her or to provide her with VRI. Staff relied instead on an exchange of handwritten notes to ascertain her symptoms and medical history, notwithstanding that Ms. Gailey was very weak and visibly tired and that she had “a complicated medical history.” Ms. Gailey was diagnosed with severe hyperglycemia and metabolic acidosis, and she was admitted to the Hospital. VRI was not provided for Ms. Gailey until approximately six hours after her arrival to the Hospital.
29. During the rest of her stay at the Hospital, staff attempted to communicate with her via handwritten notes and VRI. Nevertheless, the staff encountered difficulty with VRI. For instance, medical records note that Ms. Gailey complained that “the nurses were unable to connect with interpreter services in ICU.”
30. Ms. Gailey grew frustrated with VRI because the screen would freeze and become unclear, which made it very difficult to communicate using VRI.
31. If she would have had an effective means of communicating, Ms. Gailey would have asked more questions about her tests, her medications, and her organ functions, and would have been better able to understand what Hospital staff was trying to communicate to her.

Leonard Schnetter’s Visits

32. Leonard Schnetter is an individual who is deaf, and a person with a disability under the meaning of the ADA, 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
33. In December 2008, Leonard Schnetter went to the Hospital due to chest pain. The Hospital did not offer to provide an on-site interpreter or VRI for Mr. Schnetter, even though, as Hospital records attest, staff had difficulty obtaining Leonard’s medical history since “the patient is deaf and all communication had to be done with writing and answering questions on a piece of paper.” Staff wrote questions such as, “What makes the pain worse?” “Do you get chest pain when you walk?” and “Does this pain feel similar to what you had before the stents?” Staff also wrote notes such as, “For now, I’ll have you stay here and we’ll do some blood tests,” and, “If I had to guess I don’t think your pain is from blocked arteries.”
34. Throughout the course of his stay, which lasted several days, Hospital staff attempted to have numerous communications with Mr. Schnetter on issues related to coronary disease, pain management, prescriptions, and electrocardiograms – all of which he struggled to understand. Mr. Schnetter was forced to rely on friends and family members who are not fluent in ASL to sign for him, and when they were not available, he used written notes to exchange basic information. The lack of effective communication rendered him confused and scared.
35. At one point during Mr. Schnetter’s discharge, the nurse used Addison Fox, who was then approximately seven years old, to interpret for him on issues relating to medications and discharge instructions. Not surprisingly, Mr. Schnetter was confused and did not understand what was being said.
36. Mr. Schnetter has been to the Hospital on several other occasions accompanied by his sister, who does not know much sign language. Despite his sister’s repeated requests for an interpreter, staff did not provide one for him or offer VRI. The result has been that, without a sign language interpreter, Mr. Schnetter has been effectively shut out of his own medical treatment; he is not consulted by medical staff, he cannot share his views or communicate his medical history, and someone else must make medical decisions for him, even though he is competent to make them on his own.

CAUSES OF ACTION

COUNT I: Failure to Provide Effective Communication

Title III of the Americans with Disabilities Act

37. The allegations of Paragraphs 1 through 36 of this Complaint are hereby re-alleged and incorporated by reference as if fully stated herein.
38. By failing to provide Jessie Fox, Renae Gailey, and Leonard Schnetter (“complainants”) with needed sign language interpreters, defendants denied them the full and equal benefit of communicating with health care professionals, understanding the medical treatment at issue, and participating in their own medical care. Despite the complainants’ repeated requests for interpreters, Hospital personnel attempted to have lengthy, complex, and important medical communications with them when no qualified interpreter was present, which resulted in a lack of effective communication.
39. Even when Hospital staff attempted to provide VRI for the complainants, the service was unreliable. Hospital staff regularly failed to provide VRI for long periods of time when the complainants were at the Hospital, did not know how to set it up properly, and had no alternative for deaf individuals when the VRI connection failed or was fuzzy.
40. Defendants discriminated against the complainants on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered by defendants, in violation of title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation at 29 C.F.R. Part 36. Defendants’ violations of title III include, but are not necessarily limited to:

a)    Failing to take such steps as necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than any other individuals because of the absence of auxiliary aids and services (including, but not limited to, qualified sign language interpreters) in violation of 42 U.S.C. § 12182(b)(2)(A)(iii), and its implementing regulation at 28 C.F.R. § 36.303; and

b)    Failing to afford an individual, on the basis of disability, with the opportunity to participate in or benefit from the services, facilities, privileges, advantages, or accommodations of Trinity that is equal to that afforded to other individuals, in violation of 42 U.S.C. § 12182(b)(1)(A)(ii), and its implementing regulation at 28 C.F.R. §36.202.

COUNT II: Association Discrimination

Title III of the Americans with Disabilities Act

41. The allegations of Paragraphs 1 through 36 of this Complaint are hereby re-alleged and incorporated by reference as if fully stated herein.
42. Hospital staff repeatedly required Janice Fox and Addison Fox to serve as sign language interpreters for the complainants, even though they were neither qualified nor willing to do so. The Hospital placed them in stressful environments where they were required to translate complex, lengthy, and important medical information for loved ones. In so doing, defendants denied Janice and Addison Fox the full and equal opportunity to provide emotional support for the complainants and to have Hospital personnel communicate difficult or complex issues directly to the patient.
43. On several occasions, Hospital staff required Addison Fox to be the primary communicator between the Hospital and Addison Fox’s family. In this role, Addison Fox gave medical information to staff on behalf of her family; received medical information from Hospital staff on behalf of her family; and processed such medical information. Unlike the children of hearing parents, then, Addison Fox was forced to assume the role of parent and decisionmaker because the Hospital could not effectively communicate with her mother.
44. Defendants’ actions violated 42 U.S.C. § 12182(b)(1)(E), by denying equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual because of the known disability of someone with whom the individual is known to have a relationship or association.

WHEREFORE, Plaintiff United States of America prays that this Court:

a)    Grant judgment in favor of the United States and declare that the defendants have violated title III of the ADA, 42 U.S.C. §§ 12181 et seq., and its implementing regulation, 28 C.F.R. Part 36;

b)    Enjoin the defendants, their officers, agents, and employees, and all other persons in active concert or participation with the defendants, from discriminating against individuals who are deaf or hard of hearing;

c)     Order the defendants to furnish appropriate auxiliary aids and services, including qualified sign language interpreters, to patients who are deaf or heard of hearing, and to patients’ family members and/or companions who are deaf or hard of hearing, where such aids and services are necessary for effective communication;

d)    Order the defendants to develop and implement policies and procedures to provide all appropriate auxiliary aids and services, including qualified sign language interpreters, when required for effective communication with (i) patients who are deaf or hard of hearing and/or (ii) patients’ family members and/or companions who are deaf or hard of hearing;

e)    Order defendants to design and implement appropriate staff training programs to ensure that all personnel affiliated with defendants who have contact with members of the public (whether employees or independent contractors) are knowledgeable about the policies related to the provision of goods and services to persons with disabilities, including that each such person knows how to secure appropriate auxiliary aids and services for persons who are deaf or hard of hearing;

f)     Award monetary damages in an appropriate amount to all individuals affected by defendants’ discriminatory policies, practices, or procedures;

g)     Assess a civil penalty against defendants as authorized by 42 U.S.C. 12188(b)(2)(C), to vindicate the public interest; and

h)    Order such additional and further relief as the interests of justice may require.

JURY DEMAND

The United States demands a trial by jury of all issues so triable pursuant to Federal Rule of Civil Procedure 38.

Respectfully submitted this ____ day of ___________, 2012

FOR THE UNITED STATES OF AMERICA

STEPHANIE M. ROSE
United States Attorney
Northern District of Iowa

 

 

 

 

 

 

 

_____________________
STEPHANIE WRIGHT
Assistant United States Attorney
United States Attorney’s Office
Northern District of Iowa
Hach Bldg, Suite 400
401 1st Street, S.E.
Cedar Rapids, Iowa 52401-1825
Telephone: 319-731-4058 Stephaineanie.wright@usdoj.gov