Cheylla Silva v. Baptist Health South Florida, Inc.

Case: 16-10094 Date Filed: 05/08/2017 Page: 1 of 33

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-10094
________________________

D.C. No. 1:14-cv-21803-KMW

CHEYLLA SILVA,
JOHN PAUL JEBIAN,

Plaintiffs-Appellants,

versus

BAPTIST HEALTH SOUTH FLORIDA, INC.,
BAPTIST HOSPITAL OF MIAMI, INC.,
SOUTH MIAMI HOSPITAL, INC.,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(May 8, 2017)

Before HULL, MARTIN, and EBEL, ∗ Circuit Judges.

∗
The Honorable David M. Ebel, Senior United States Circuit Judge for the United States Court
of Appeals for the Tenth Circuit, sitting by designation.
 Case: 16-10094 Date Filed: 05/08/2017 Page: 2 of 33

EBEL, Circuit Judge:

Plaintiffs Cheylla Silva and John Paul Jebian are profoundly deaf. On

numerous occasions, they presented at Defendants’ hospitals but allegedly could

not communicate effectively with hospital staff because of the absence of certain

auxiliary aids or services. Federal law requires, however, that healthcare providers

offer appropriate auxiliary aids to hearing-impaired patients where necessary to

ensure effective communication. Failure to do so constitutes discrimination

against disabled persons. Plaintiffs bring this lawsuit under Title III of the

Americans with Disability Act (ADA), 42 U.S.C. §§ 12181-12189, and Section

504 of the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, alleging unlawful

discrimination by Defendants Baptist Hospital of Miami, Inc. (Baptist Hospital),

South Miami Hospital, Inc. (SMH), and Baptist Health South Florida, Inc. (Baptist

Health) (collectively, Baptist).

The district court awarded summary judgment to Defendants. It held that

Plaintiffs lacked Article III standing to seek prospective injunctive relief because

they did not show that they were likely to return to the hospitals in the future. In

addition, the district court denied damages on the grounds that Plaintiffs failed to

show any instances where communication difficulties resulted in any actual

adverse medical consequences to them, and otherwise failed to articulate what they

did not understand during their hospital visits. The court concluded that records

2
 Case: 16-10094 Date Filed: 05/08/2017 Page: 3 of 33

showed that Plaintiffs communicated their chief medical complaints and

understood the treatment plan and discharge instructions, which foreclosed an

ineffective-communication claim.

We reverse the district court on these issues. Not only do we conclude that

Plaintiffs have standing to seek injunctive relief, we also reject the district court’s

substantive standard for liability. For an effective-communication claim brought

under the ADA and RA, we do not require a plaintiff to show actual deficient

treatment or to recount exactly what the plaintiff did not understand. Nor is it a

sufficient defense for a defendant merely to show that a plaintiff could participate

in the most basic elements of a doctor-patient exchange. Rather, the relevant

inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid

impaired the patient’s ability to exchange medically relevant information with

hospital staff.

We conclude that Plaintiffs have offered sufficient evidence to survive

summary judgment. The record is rife with evidence that, on particular occasions,

Plaintiffs’ ability to exchange medically relevant information was impaired.

Ultimately, however, to win monetary damages—which Plaintiffs seek in addition

to equitable relief—Plaintiffs still must show that Defendants were deliberately

indifferent in failing to ensure effective communication. The district court did not

address this question. Thus, we REVERSE the district court’s order granting

3
 Case: 16-10094 Date Filed: 05/08/2017 Page: 4 of 33

summary judgment to Defendants, and REMAND for further proceedings,

including consideration of the deliberate-indifference issue.

BACKGROUND

Plaintiffs Silva and Jebian are deaf and communicate primarily in American

Sign Language (ASL). Both of them can read and write in simple English—Jebian

communicates with “very basic” proficiency and Silva reads at a fifth-grade level.

Doc. 78 ¶¶ 60, 81. Defendants are two hospitals, Baptist Hospital and SMH, and

their parent organization, Baptist Health. 1 As places of public accommodation and

recipients of federal Medicaid funds, Defendants are obligated to follow the

mandates of the ADA and RA, which require healthcare facilities to ensure

effective communication between hearing-impaired patients and medical staff. 28

C.F.R. § 36.303(c)(1); 45 C.F.R. § 84.52(d)(1).

Plaintiffs separately visited Defendants’ facilities numerous times. They

allege that, on many of those occasions, Defendants failed to provide appropriate

auxiliary aids necessary to ensure effective communication.2 While Plaintiffs

requested live on-site ASL interpreters for most visits, Defendants relied primarily

on an alternative communication method called Video Remote Interpreting (VRI).

1
Baptist Health does not provide any healthcare services; rather, it owns and operates medical
facilities, including Baptist Hospital and SMH, which provide such services.
2
The ADA defines “auxiliary aids and services” to include “qualified interpreters or other
effective methods of making aurally delivered materials available to individuals with hearing
impairments[.]” 42 U.S.C. § 12103(1)(A).

4
 Case: 16-10094 Date Filed: 05/08/2017 Page: 5 of 33

With this internet-connected machine, a live ASL interpreter is located remotely

and communicates with the doctor and patient through a portable screen located in

the hospital.

During many of Plaintiffs’ hospital visits, Defendants attempted to use this

device. However, the VRI machines routinely suffered from technical difficulties

that either prevented the device from being turned on, or otherwise resulted in

unclear image quality, thereby disrupting the message being communicated

visually on the screen. When the VRI machine was unavailable or malfunctioned,

hospital staff would often rely on family-member companions for interpretive

assistance, or would exchange hand-written notes with Plaintiffs themselves. On

some occasions, after a VRI breakdown, an on-site ASL interpreter would be

called to assist with communication. These instances occurred both when

Plaintiffs presented as patients, and when Jebian accompanied his father to

Defendants’ facilities for treatment.3

Plaintiffs brought this lawsuit under the ADA and RA for unlawful

discrimination. They alleged that Baptist’s facilities failed to provide appropriate

auxiliary aids to ensure effective communication with hospital staff. They sought

injunctive relief and monetary damages. The district court awarded summary

3
Deaf persons are protected by the ADA and RA not only as patients, but also as companions to
patients who are seeking treatment. 28 C.F.R. § 36.303(c)(1).

5
 Case: 16-10094 Date Filed: 05/08/2017 Page: 6 of 33

judgment in Defendants’ favor. It held that Plaintiffs lacked Article III standing

for injunctive relief and, further, that they had not shown a “genuine dispute as to

any material fact” regarding a violation of the ADA and RA. Fed. R. Civ. P. 56(a).

The district court faulted Plaintiffs for failing to show that the denial of requested

auxiliary aids resulted in any adverse medical consequences or inhibited their

communication of the “chief medical complaint” or “instructions under the

treatment plan.” Doc. 133 at 30, 33-34. Moreover, in the district court’s view,

Plaintiffs’ inability to articulate what they could not understand on particular visits

was fatal to their effective-communication claims.

DISCUSSION

ADA and RA claims are governed by the same substantive standard of

liability. See, e.g., Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). To

prevail, a disabled person must prove that he or she was excluded from

participation in or denied the benefits of the hospital’s services, programs, or

activities, or otherwise was discriminated against on account of her disability.

Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001). Such exclusion, denial, or

discrimination occurs when a hospital fails to provide “appropriate auxiliary aids

and services” to a deaf patient, or a patient’s deaf companion, “where necessary to

ensure effective communication.” 28 C.F.R. § 36.303(c)(1) (emphases added).

That is the touchstone of our inquiry.

6
 Case: 16-10094 Date Filed: 05/08/2017 Page: 7 of 33

But proving the failure to provide a means of effective communication, on

its own, permits only injunctive relief. See, e.g., McCullum v. Orlando Reg’l

Healthcare Sys., Inc., 768 F.3d 1135, 1147 n.8 (11th Cir. 2014). To recover

monetary damages, a disabled person must further show that the hospital was

deliberately indifferent to her federally protected rights. See, e.g., Liese v. Indian

River Cty. Hosp. Dist., 701 F.3d 334, 344, 345 (11th Cir. 2012) (stating that, to

recover compensatory damages, a disabled plaintiff must show “that the

[h]ospital’s failure to provide appropriate auxiliary aids was the result of

intentional discrimination” and “deliberate indifference is the appropriate standard

for defining discriminatory intent”) (internal quotation marks omitted). Resolving

the case solely on the ineffective-communication issue, the district court declined

to consider deliberate indifference.

After reviewing the record evidence in the light most favorable to the

Plaintiffs, we hold that summary judgment was improper. 4 First, the district court

erroneously denied prospective injunctive relief on the basis of Article III standing,

concluding in error that Plaintiffs did not show they were likely enough to return to

the hospitals in the future or otherwise to suffer discrimination again at those

4
We review a district court’s grant of summary judgment de novo, viewing the evidence in the
light most favorable to the non-moving party and drawing all reasonable inferences in their
favor. Liese, 701 F.3d at 341-42. Summary judgment is appropriate if “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

7
 Case: 16-10094 Date Filed: 05/08/2017 Page: 8 of 33

facilities. Second, the district court improperly rejected all relief based on its

conclusions that Plaintiffs did not identify any actual adverse medical

consequences resulting from ineffective communication, and did not specify what

they were unable to understand or convey during their visits, such as the inability

to comprehend their treatment plan and discharge instructions or to communicate

their principal symptoms.

The district court’s legal standard was flawed. Instead, the correct standard

examines whether a hospital’s failure to offer an appropriate auxiliary aid impaired

a deaf patient’s ability to exchange medically relevant information with hospital

staff. Applying that standard to this record, construing all facts in Plaintiffs’ favor,

we conclude that their claims are suitable for a finder of fact. We therefore reverse

the district court’s order awarding summary judgment to Defendants and remand.

Because Plaintiffs also must prove deliberate indifference to win monetary relief—

an issue the district court did not decide—we remand for consideration of that

question as well.

I. Plaintiffs Have Standing for Injunctive Relief

In this lawsuit, Plaintiffs seek both injunctive relief and compensatory

damages. Their request for a permanent injunction is predicated on their claim that

Defendants maintain unlawful policies and practices that result in ongoing

discrimination against hearing-impaired persons. The question on appeal is

8
 Case: 16-10094 Date Filed: 05/08/2017 Page: 9 of 33

whether Plaintiffs have Article III standing to proceed with their claims for

injunctive relief. To satisfy the injury-in-fact requirement for constitutional

standing, a plaintiff seeking injunctive relief in relation to future conduct “must

show a sufficient likelihood that he will be affected by the allegedly unlawful

conduct in the future.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328

(11th Cir. 2013) (internal quotation marks omitted). This requires the patients to

establish “a real and immediate—as opposed to a merely conjectural or

hypothetical—threat of future injury.” See id. at 1334 (internal quotation marks

omitted). To establish such a threat, each patient must show that (1) there is a “real

and immediate” likelihood that he or she will return to the facility and (2) he or she

“will likely experience a denial of benefits or discrimination” upon their return.

See McCullum, 768 F.3d at 1145-46.

On this ground, the district court held that Plaintiffs lacked Article III

standing, reasoning that “it is merely speculative that Plaintiffs will return to

Defendants’ hospitals and there is no reliable indication that the VRI technology

will malfunction in the future.” Doc. 133 at 34. We disagree.

In the ADA context, our standing inquiry has focused on the frequency of

the plaintiff’s visits to the defendant’s business and the definitiveness of the

plaintiff’s plan to return. See Houston, 733 F.3d at 1337 n.6. Here, it is evident

that Plaintiffs have offered evidence sufficient to support a finding that (1) they

9
 Case: 16-10094 Date Filed: 05/08/2017 Page: 10 of 33

will return to Defendants’ facilities; and (2) they “will likely experience a denial of

benefits or discrimination” upon their return. See McCullum, 768 F.3d at 1145-46.

For example, Silva testified in a declaration: “Due to many factors, including

the location of my doctors, the fact that Defendants have all of my medical records

and history, the proximity to my home, and history of prior care/treatment, it is

likely I will visit and receive treatment at Defendants’ hospitals.” Doc. 61-13,

¶ 22. Jebian asserted the same in his declaration, and added that he would also go

to that same hospital “as a companion of my father in the near future, due to his

ongoing health concerns and required follow-up,” Doc. 61-14 ¶ 17. See Houston,

733 F.3d at 1337 (concluding that because the plaintiff had been to the defendant’s

store in the past, wanted to return, and took frequent trips past the store, it was

“likely” she would return to the store, and therefore the threat of future injury was

not merely conjectural or hypothetical).

What is more, Plaintiffs collectively have attended Defendants’ facilities

dozens of times in the years preceding this lawsuit, and Silva has attested that she

has recurring health issues. Further, Plaintiffs routinely experienced problems with

the VRI devices not working at all or failing to transmit a clear screen image, so

10
 Case: 16-10094 Date Filed: 05/08/2017 Page: 11 of 33

there is good reason to believe that will continue to happen at Defendants’ facilities

when Plaintiffs do return.5

McCullum v. Orlando Regional Healthcare System, Inc., 768 F.3d 1135

(11th Cir. 2014) does not compel a different conclusion. In that case, there was no

evidence that the deaf patient would return to the hospital after a successful surgery

removed “the organ causing the problem.” Id. at 1146 (internal quotation marks

omitted, alteration omitted). Nor was there evidence that the hospital would deny

his future requests for an in-person interpreter. Id.

Accordingly, given Plaintiffs’ numerous visits to Defendants’ facilities and

the wealth of evidence showing repeated VRI malfunctions, we conclude that

Plaintiffs have Article III standing to proceed with their claims for injunctive

relief. 6

5
Plaintiffs’ individual experiences with the malfunctioning VRI machines are not the only
evidence that such problems will reoccur. An administrator at Baptist Hospital testified that the
VRI, on other occasions, had poor reception.
6
We also conclude there is a factual dispute concerning Plaintiffs’ allegation that Baptist has a
policy in violation of the ADA and RA of using VRI across the board, even when an in-person
interpreter is warranted. A hospital administrator of Defendants’ facilities testified that,
“[b]ecause of [the VRI] technology, we have largely moved away from using in-house
interpreters.” Doc. 61-3 at 55-56. She further stated that “[t]he policy was because we had the
[VRI], that we used as our live interpreter.” Id. at 26.
On the other hand, there is evidence that Defendants at times have relied less exclusively
on VRI and have provided an in-person interpreter when warranted. For example, the record
indicates that Baptist Hospital provided Silva with an in-person interpreter on January 4, 2011
and March 9-10, 2015. And SMH provided Silva with an in-person interpreter on six occasions:
April 29, 2014; July 8-10, 2014; July 18, 2014; August 1, 2014; August 22, 2014; and September
8, 2014. Some of this evidence was later contradicted by Silva.

11
 Case: 16-10094 Date Filed: 05/08/2017 Page: 12 of 33

II. Plaintiffs Have Offered Evidence Sufficient to Defeat Summary
Judgment

The district court awarded Defendants summary judgment because it found

no triable issue of fact regarding the ineffectiveness of the communication aids

offered at Defendants’ hospitals. We first analyze the proper standard for

evaluating effective-communication claims under the ADA and RA, and then we

examine the evidence offered to overcome summary judgment.

A. The Standard for Effective Communication

The district court faulted Plaintiffs for failing to show two things. First,

Plaintiffs could not identify any instances where the means of communication

resulted in actual misdiagnosis, incorrect treatment, or adverse medical

consequences. Second, Plaintiffs could not articulate what information they were

unable to understand or convey during their hospital visits. More specifically,

there was no evidence Plaintiffs could not communicate their chief medical

complaint or understand a treatment plan and discharge instructions. We address

these requirements in turn, ultimately concluding that they are not the appropriate

tests for evaluating effective-communication claims. Instead, the correct standard

examines whether the deaf patient experienced an impairment in his or her ability

to communicate medically relevant information with hospital staff. The focus is on

the effectiveness of the communication, not on the medical success of the outcome.

12
 Case: 16-10094 Date Filed: 05/08/2017 Page: 13 of 33

1. Plaintiffs’ Failure to Show Adverse Medical Consequences

The district court relied, in part, on Plaintiffs’ failure to prove that any

communication difficulties resulted in a misdiagnosis, incorrect treatment, or other

adverse medical consequences. Doc. 133 at 4 (“There is no specific

fact . . . demonstrating that either Plaintiff was misdiagnosed, was given the wrong

treatment, [or] was impeded in complying with medical instructions for follow-up

care . . . .”); id. at 5 (“Plaintiffs are unable to point to any specific fact, incident,

course of treatment, or diagnosis supporting the conclusion that communication at

Defendants’ hospitals was ineffective.”). This is simply not the correct standard

for effective-communication claims.

The ADA and RA focus not on quality of medical care or the ultimate

treatment outcomes, but on the equal opportunity to participate in obtaining and

utilizing services. ADA, 42 U.S.C. § 12182(b)(1)(A)(ii) (“It shall be

discriminatory to afford an individual . . . on the basis of a disability . . . with the

opportunity to participate in or benefit from a good [or] service . . . that is not

equal to that afforded to other individuals.” (emphasis added)); RA, 29

U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination . . . .” (emphasis added));

45 C.F.R. § 84.4(b)(1)–(b)(1)(ii) (“A recipient . . . may not . . . , on the basis of

13
 Case: 16-10094 Date Filed: 05/08/2017 Page: 14 of 33

handicap[,] . . . [a]fford a qualified handicapped person an opportunity to

participate in or benefit from the . . . service that is not equal to that afforded

others.” (emphasis added)); 45 C.F.R § 84.52(d)(1) (“A recipient . . . shall provide

appropriate auxiliary aids . . . where necessary to afford such persons an equal

opportunity to benefit from the service in question.” (emphasis added)); McCullum

v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1147 n. 8 (11th Cir. 2014)

(“[A] showing that the auxiliary aids [a plaintiff] received to assist him in

communicating were not sufficient to provide him with an equal opportunity to

benefit from the healthcare provider’s treatment is enough to establish a violation

of both the RA and ADA.” (emphasis added)); Liese v. Indian River Cty. Hosp.

Dist., 701 F.3d 334, 343 (11th Cir. 2012) (“[T]he proper inquiry is whether the

auxiliary aid that a hospital provided to its hearing-impaired patient gave that

patient an equal opportunity to benefit from the hospital’s treatment.” (emphasis

added)).

There can be no question that the exchange of information between doctor

and patient is part-and-parcel of healthcare services. Thus, regardless of whether a

patient ultimately receives the correct diagnosis or medically acceptable treatment,

that patient has been denied the equal opportunity to participate in healthcare

services whenever he or she cannot communicate medically relevant information

effectively with medical staff. It is not dispositive that the patient got the same

14
 Case: 16-10094 Date Filed: 05/08/2017 Page: 15 of 33

ultimate treatment that would have been obtained even if the patient were not deaf.

See 45 C.F.R. § 84.4(b)(2) (“[A]ids, benefits, and services, to be equally effective,

are not required to produce the identical result or level of achievement for

handicapped and nonhandicapped persons, but must afford handicapped persons

equal opportunity to obtain the same result, to gain the same benefit, or to reach

the same level of achievement, in the most integrated setting appropriate to the

person’s needs.” (emphasis added)).

Instead, what matters is whether the handicapped patient was afforded

auxiliary aids sufficient to ensure a level of communication about medically

relevant information substantially equal to that afforded to non-disabled patients.

In other words, the ADA and RA focus on the communication itself, not on the

downstream consequences of communication difficulties, which could be remote,

attenuated, ambiguous, or fortuitous. For this reason, claims for ineffective

communication are not equivalent to claims for medical malpractice.

2. Plaintiffs’ Failure to Articulate What It Was That They Could Not
Communicate

The district court also faulted Plaintiffs for failing to articulate, with the

benefit of hindsight, what they did not understand or could not communicate.

More specifically, Plaintiffs could not show that hospital staff was “unable to

ascertain [Plaintiffs’] chief medical complaint, unable to create a treatment plan, or

unable to help [Plaintiffs] understand [their] instructions under the treatment plan.”
15
 Case: 16-10094 Date Filed: 05/08/2017 Page: 16 of 33

Doc. 133 at 30 (Silva); id. at 33-34 (Jebian). The district court relied on medical

records indicating that hospital staff were able to ascertain Plaintiffs’ primary

symptoms, and that Plaintiffs verbalized understanding of treatment and discharge

instructions. We reject this standard for two reasons.

First, limiting the required level of communication to that necessary to

convey the primary symptoms, a treatment plan, and discharge instructions may

still result in deaf patients receiving an unequal opportunity to participate in

healthcare services in comparison to non-disabled patients. When a hearing (i.e.,

non-disabled) person goes to the hospital, that person is not limited only to

describing symptoms and receiving the treatment plan and discharge instructions.

The patient’s conversation with the doctor could, and sometimes should, include a

whole host of other topics, such as any prior medical conditions and history,

medications the patient is taking, lifestyle and dietary habits, differential diagnoses,

possible follow-up procedures and tests, informed-consent issues, and side effects

and costs of potential courses of treatment. Because a non-disabled person has the

benefit of this expansive informational exchange, it is error to conclude on

summary judgment that the mere successful communication of the primary

symptoms, treatment plan, and discharge instructions is enough, as a matter of law,

to preclude liability under the ADA and RA.

16
 Case: 16-10094 Date Filed: 05/08/2017 Page: 17 of 33

Second, the district court’s requirement that Plaintiffs articulate exactly what

they failed to understand is overly burdensome. It would be exceedingly difficult

for a deaf patient to recount a conversation he or she could not hear—just as it

would be hard for blind patients to describe the contents of materials they could

not read. Thus, we reject a requirement that a disabled patient explain exactly

what was poorly communicated when that patient could not know that information

precisely because of the disability.

3. The Correct Standard—Impairing the Exchange of Medically
Relevant Information

The proper inquiry under the ADA and RA is simply to examine whether the

hospital provided the kind of auxiliary aid necessary to ensure that a deaf patient

was not impaired in exchanging medically relevant information with hospital staff.

To be ineffective communication, it is sufficient if the patient experiences a real

hindrance, because of her disability, which affects her ability to exchange material

medical information with her health care providers. This standard is consistent

with the requirement that hospitals afford a level of communication to a deaf

17
 Case: 16-10094 Date Filed: 05/08/2017 Page: 18 of 33

patient about medically relevant information that is substantially equal to that

afforded to non-disabled patients.7

That does not mean that deaf patients are entitled to an on-site interpreter

every time they ask for it. See McCullum, 768 F.3d at 1147. “The regulations do

not require healthcare providers to supply any and all auxiliary aids even if they

are desired and demanded.” Id. “[C]onstruing the regulations in this manner

would effectively substitute ‘demanded’ auxiliary aid for ‘necessary’ auxiliary

aid.” Liese, 701 F.3d at 343. If effective communication under the circumstances

is achievable with something less than an on-site interpreter, then the hospital is

well within its ADA and RA obligations to rely on other alternatives. Indeed, the

implementing regulations clarify that “the ultimate decision as to what measures to

take rests with” the hospital. 28 C.F.R. § 36.303(c)(1)(ii). And further, “[t]he type

of auxiliary aid or service necessary to ensure effective communication will vary in

accordance with” several context-specific factors, including the “nature, length,

and complexity of the communication involved; and the context in which the

communication is taking place.” Id. Thus, “the task of determining whether an

7
Admittedly, perfect communication is not required under the ADA and RA. Cf. Bircoll v.
Miami-Dade Cty, 480 F.3d 1072, 1086 (11th Cir. 2007) (holding that, under the ADA and RA,
the quality of communication between a deaf arrestee and a police officer did not have to be
“perfect” in order to put the deaf person “on equal footing” with non-disabled arrestees).
However, the communication must still be effective.

18
 Case: 16-10094 Date Filed: 05/08/2017 Page: 19 of 33

entity subject to the RA has provided appropriate auxiliary aids where necessary is

inherently fact-intensive.” Liese, 701 F.3d at 342.

It is precisely because of this fact-intensive inquiry that an effective-

communication claim often presents questions of fact precluding summary

judgment. See Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 342-43 (11th

Cir. 2012) (citing cases that conclude the effectiveness of the auxiliary aids is a

“question of fact” inappropriate for summary judgment). “Nonetheless, this does

not mean that every request for an auxiliary aid that is not granted precludes

summary judgment or creates liability[.]” Id. at 343.

With this in mind, we proceed to evaluate the record evidence pertaining to

whether there are disputed issues of material fact regarding Plaintiffs’ claimed

impairments in their ability to exchange medically relevant information with

Defendants’ hospital staff.

B. The Evidence Is Sufficient to Overcome Summary Judgment

Examining the facts in the light most favorable to Plaintiffs, we conclude

that Plaintiffs have offered sufficient evidence to defeat summary judgment.

1. Silva’s Claims Survive Summary Judgment

Silva has offered sufficient evidence for a rational jury to find that

Defendants’ failure to offer appropriate auxiliary communication aids impaired her

19
 Case: 16-10094 Date Filed: 05/08/2017 Page: 20 of 33

ability to exchange medically relevant information with hospital staff. In her

sworn declaration, she addressed communication difficulties that arose from her

visits to Baptist’s facilities:

At each such hospitalization or visit, hospital staff would
conduct tests, perform procedures, prescribe medication,
and attempt to communicate with me regarding my
condition and treatment options through my friends and
family (none of who [sic] are fluent in ASL), written
notes and gestures[;] [h]owever, I was unable to
understand most of what they attempted to communicate
through these means.

Doc. 61-13 at ¶ 8 (emphasis added). She further explained that “[h]ospital staff

would also make me sign forms without explaining what I was signing, including

signing forms consenting to treatment and medications that I did not fully

understand or even have the opportunity to ask questions about.” Id. ¶ 9

(emphasis added). And addressing the tendency of the VRI devices to

malfunction, Silva explained that “[o]n some occasions . . . the machine was

inoperable or unusable” and “it appeared that hospital staff could not figure out

how to operate the machine[;] [o]ther times, the picture would be blocked, frozen,

or degraded.” Id. ¶ 10.

Silva also highlighted specific instances of ineffective communication. For

example, on January 4, 2011, Silva went to Baptist Hospital for stomach pain. She

“requested an interpreter many times” and “wait[ed] for so long” before the

interpreter arrived. Doc. 78-5 at 16-17. While waiting for the live interpreter,
20
 Case: 16-10094 Date Filed: 05/08/2017 Page: 21 of 33

Silva communicated back and forth with handwritten notes—“an extremely

frustrating experience” given “the type of terminology that doctors use.” Id. at 17.

On that occasion, until the delayed arrival of the live interpreter, Silva stated she

“was not able to communicate at all.” Id. This evidence of an impaired

informational exchange is difficult to ignore. 8

Further, on March 9, 2015, Silva went to Baptist Hospital for chest pains.

The nurse turned on the VRI device but could not get it to function. As a result of

the VRI machine’s malfunction, Silva recounted:

During this time, I could not communicate with the
hospital staff. The nurses kept coming in and out of the
room, they communicated with my dad and I had no idea
what they were saying. I wanted to know what they were
saying, I couldn’t explain how I felt and I saw the nurses
talking and I didn’t know if they were talking about me
and it was something bad.

Doc. 78-9 ¶ 16 (emphasis added). After more than an hour, the VRI did eventually

become operational, and Silva used it to communicate until her live interpreter

arrived. Nonetheless, a rational jury could find, after hearing about this incident,

8
The Department of Justice (DOJ) published interpretive guidelines on its regulations
implementing the ADA. See 28 C.F.R. pt. 36 App’x A. In those guidelines, the DOJ explained
that the exchange of written notes is not appropriate “when the matter involves more complexity,
such as in communication of medical history or diagnoses, in conversations about medical
procedures and treatment decisions, or in communication of instructions for care at home or
elsewhere.” Id.

21
 Case: 16-10094 Date Filed: 05/08/2017 Page: 22 of 33

that Silva’s ability to exchange medically relevant information with hospital staff

was impaired. 9

In addition to specific instances where Silva was unable to communicate

effectively, there are other occasions where the malfunctioning of Defendants’ VRI

machines could generate a reasonable inference of an impaired informational

exchange. For instance, on April 29, 2014, Silva went to SMH because of

pregnancy complications—she was unable to detect fetal movement during her

pregnancy. The staff attempted to set up the VRI, “[b]ut it wasn’t working at

all.”10 Doc. 78-5 at 32. More generally, Silva explained her frequent experience

that “the [VRI] connection is not smooth[,] [i]t’s not strong enough.” Doc. 78-4 at

44. In a supplemental declaration, she stated:

[E]ach time that I would go to both hospitals, the
hospitals may bring in a VRI, but it would rarely work,
and it would fail. Even some times when it would work
at Baptist Hospital, it would freeze on me and there
would be a huge lag time where it would seem like the
interpreter was in slow motion.

9
It is no answer to say that hospital staff relied on Silva’s father to communicate effectively with
Silva. ADA regulations expressly provide that a covered entity “shall not rely on an adult
accompanying an individual with a disability to interpret or facilitate communication” except in
narrow circumstances not applicable here. 28 C.F.R. § 36.303(c)(3). Thus, with some
exceptions, reliance on a family member for interpretive assistance is not an adequate substitute
for an appropriate auxiliary aid—in this case, the VRI machine—when it malfunctions.
10
Consequently, Silva “demanded a live interpreter as soon as possible, because of the health of
[her] baby and the crisis [she] felt [she] was in.” Doc. 78-5 at 32-33. Hospital staff initially
declined, asking for more time to set up the VRI. Eventually, after the delay of attempting to
work the VRI device, the hospital team brought in a live interpreter for the visit.

22
 Case: 16-10094 Date Filed: 05/08/2017 Page: 23 of 33

Doc. 78-9 ¶ 38.

This is just one example and there are others: On May 9, 2011, Silva had an

appendectomy at Baptist Hospital, but there is a fact issue as to whether the VRI

worked then or worked only for 46 minutes for post-operation teaching and

discharge. On May 20, 2011, Silva was admitted to Baptist Hospital for abdominal

pain. Although the hospital’s notes state that it fixed a “[n]etwork glitch” with the

VRI and the machine was then “in working order,” Doc. 59-1 at 232, Silva stated

in her deposition that her boyfriend assisted her in communicating with staff and,

further, the hospital’s records of VRI usage do not show any usage by Silva on this

date. On December 6, 2012, Silva went to Baptist Hospital for chest pains and

testified that staff used the VRI “briefly,” but VRI records again do not show any

usage by Silva on this date. On March 4, 2013, Silva went to Baptist Hospital for

shoulder pain, and she claims that the VRI worked for only a portion of that visit.

On June 11-12, 2013, Silva went to Baptist Hospital for nausea and abdominal

pain, but she claims that hospital staff only used the VRI machine for 10 minutes

across a two-day visit. And in a July 2014 visit to SMH for abdominal pain and

contractions, Silva stated in a declaration that she was provided with a VRI

machine and “the VRI would not work.” Doc. 61-13 ¶¶ 17-18.

A deaf person must rely on the slight and sophisticated hand movements of

the interpreter depicted on the screen, so when the screen image is unclear or
23
 Case: 16-10094 Date Filed: 05/08/2017 Page: 24 of 33

becomes choppy, the message is disrupted.11 Thus, we view the instances of

technological failures as corroborative evidence of Silva’s assertions that she could

not communicate effectively with hospital staff. 12

In light of the above evidence, Silva’s effective communication claims

survive summary judgment.

2. Jebian’s Claims Survive Summary Judgment

Jebian submitted a sworn declaration stating that, during his hospital visits,

he was “unable to understand most of what [medical staff] attempted to

communicate” based on the failure to provide an in-person interpreter. Doc. 61-14

¶ 8. Jebian also similarly recounted, in general terms, the unavailability of the VRI

machines, either because the “hospital staff could not figure out how to operate the

machine” or because the “video picture would freeze or break down.” Id. ¶ 10.

However, in addition to claiming that he was denied needed auxiliary aids as a

patient, Jebian also alleged that Defendants denied him required auxiliary aids

while accompanying his father to Baptist Hospital for treatment. See 28 C.F.R.

11
ADA regulations expressly provide that, when a covered entity “chooses to provide qualified
interpreters via VRI service,” it “shall ensure that it . . . delivers high-quality video images that
do not produce lags, choppy, blurry or grainy images, or irregular pauses in communication.” 28
C.F.R. § 36.303(f), (f)(1). The VRI must also have “[a] sharply delineated image.” Id.
§ 36.303(f)(2).
12
However, we recognize that there is also evidence that the VRI functioned properly and
allowed Silva to effectively communicate with hospital staff during these visits to a Baptist
facility: (1) November 29, 2010 visit to Baptist Hospital for stomach pain; (2) January 3, 2011
visit to Baptist Hospital for stomach pain; (3) May 19-20, 2014 visit to SMH for vomiting and
fever; and a (4) July 6, 2014 visit to SMH for heartburn.

24
 Case: 16-10094 Date Filed: 05/08/2017 Page: 25 of 33

§ 36.303(c)(1) (extending the effective-communication obligation to “companions

who are individuals with disabilities”). We conclude that Jebian offered sufficient

evidence to overcome summary judgment for both his claims as a patient and as a

companion.

Most of Jebian’s problematic hospital visits occurred in his capacity as a

patient. On July 11, 2012, Jebian presented at Baptist Hospital for pain in his

chest. That visit generated a clinical report which contains a notation that Jebian’s

deafness “limited” the medical evaluation. Doc. 59-3 at 11. The district court

dismissed this indicator of ineffective communication because the doctors were

still able to document the “chief complaint,” “onset of symptoms,” “severity of

condition,” and other “information available in the outpatient context only through

patient reporting” (such as insomnia and urinary output). Doc. 133 at 16-17.

Moreover, Jebian “verbalized understanding” of his discharge instructions. Id. at

17 (internal quotation marks omitted). That, however, at most shows that Jebian’s

contention of ineffective communication is disputed by Defendants—but a

disputed material fact goes to a jury. Further, as we have explained, evidence that

the medical staff could ascertain a patient’s basic symptoms and convey treatment

instructions is not enough for us to conclude, as a matter of law, that a disabled

patient’s level of informational exchange was equal to that of non-disabled patients

as required by the ADA and RA.

25
 Case: 16-10094 Date Filed: 05/08/2017 Page: 26 of 33

On July 15, 2012, Jebian presented at Baptist Hospital reporting symptoms

of kidney stones. The pain was “excruciating.” Doc. 78-7 at 25. The hospital

staff attempted to set up the VRI device, but could not figure it out—they could not

even figure out “how to plug it in.”13 Id. at 26. When that did not work, the

hospital relied on Jebian’s father, who had accompanied him to the hospital, for

interpretive assistance. But as we have already stated, absent certain narrow

exceptions not applicable here, reliance on companions for communication

assistance is not an “appropriate” auxiliary aid. 28 C.F.R. § 36.303(c)(2). A jury

could thus infer that, with VRI unavailable and the hospital’s unsanctioned reliance

on Jebian’s father for interpreting help, Jebian may have been impaired in

communicating medically relevant information regarding his excruciating

symptoms.

Similar problems occurred during Jebian’s visit to one of Baptist’s

outpatient centers on March 11, 2014. On that occasion, Jebian arrived reporting

sports-related injuries. Because Baptist does not have VRI machines at its

outpatient facilities, the medical team there relied on Jebian’s accompanying wife

for interpretive assistance. (Again, ordinarily, reliance on a companion is improper

under ADA regulations). When they discovered Jebian had a broken rib, they
13
The ADA regulations expressly require covered entities that choose to use VRI machines to
“ensure that [they] provide[] . . . [a]dequate training to users of the technology and other
involved individuals so that they may quickly and efficiently set up and operate the VRI.” 28
C.F.R. § 36.303(f), (f)(4).

26
 Case: 16-10094 Date Filed: 05/08/2017 Page: 27 of 33

transferred him to Baptist Hospital for emergency treatment where a VRI was

used. But, yet again, the VRI malfunctioned. Jebian testified that the image

quality was unclear, and “[t]he screen would black out.” Doc. 78-7 at 35. Like

with Silva, a jury could rationally infer that a deaf person—who must discern

slight and sophisticated hand movements in order to understand a message on the

screen—would be hindered in comprehending the message when the screen image

is corrupted or unclear.

And on August 10, 2014, Jebian went to a Baptist outpatient center and then

to Baptist Hospital for a muscle spasm. Hospital staff told him an interpreter was

coming and he “was so excited.” Doc. 59-2 at 109 Instead, hospital staff “brought

the VRI in for the last five minutes” before he was discharged. Id.

In addition, Jebian also offered at least one occasion where he could not

communicate effectively as a companion to his father who was suffering a heart

attack. On November 5, 2010, the medical staff performed a surgical heart

procedure on Jebian’s father. Despite the complexity and emotionality of those

circumstances, hospital staff relied on Jebian’s niece to communicate with Jebian.

Putting aside the fact that reliance on companions for interpretive assistance

(absent some narrow exceptions) violates the command of ADA regulations, 28

C.F.R. § 36.303(c)(2), Jebian’s niece—a family member of the heart-attack

victim—was emotionally compromised, which may have interfered with her ability

27
 Case: 16-10094 Date Filed: 05/08/2017 Page: 28 of 33

to act as a translator between Jebian and hospital staff. According to Jebian, “she

wasn’t even in the right mind to be able to do that,” and she was “crying and

grieving for her family member, so she was there to assist me as much as she

possibly could.” Doc. 78-7 at 11. A jury could hear this story and reasonably find

that Jebian’s ability to relate medically relevant information to and from hospital

staff was impaired.

The district court correctly noted that Jebian was more consistent than Silva

in refusing to accept the VRI even before hospital staff attempted to set up the

device. But he refused the VRI only after experiencing difficulties with the

machine in the past. As he recounts in his deposition: “It was all day long I had a

bad experience with that VRI[;] [e]very staff member tried to get it going and

nobody could.” Doc. 59-2 at 86. For that reason, Jebian thereafter declined the

VRI because he did not “even want to waste all that time” with a device that

could—and as we know from others’ testimony—often did malfunction. Id. We

are thus unwilling to hold against Jebian his tendency to decline the VRI because a

jury could conclude he acted reasonably in anticipating that the VRI would not

facilitate effective communication.14

14
We stress again that a patient is not entitled to an in-person interpreter in every situation, even
if he or she asks for it. See McCullum, 768 F.3d at 1147. The hospital ultimately gets to decide,
after consulting with the patient, what auxiliary aid to provide. 28 C.F.R. § 36.303(c)(1)(ii). But
whatever communication aid the hospital chooses to offer, the hospital must ensure effective
communication with the patient.

28
 Case: 16-10094 Date Filed: 05/08/2017 Page: 29 of 33

In sum, both Silva and Jebian have demonstrated a genuine dispute of

material fact on whether they could communicate effectively with medical staff at

Defendants’ facilities. Summary judgment was thus improper. 15

III. Defendants’ Alternative Grounds for Affirmance

Defendants offer several alternative grounds to affirm the award of summary

judgment. First, Defendants ask us to affirm summary judgment as to the claims

for compensatory damages on the ground that Plaintiffs failed to offer evidence of

deliberate indifference. To win monetary relief, Plaintiffs must prove that

Defendants exhibited deliberate indifference. See Liese, 701 F.3d at 345. Under

that standard, “a plaintiff must show that the defendant ‘knew that harm to a

federally protected right was substantially likely’ and ‘failed to act on that

likelihood.’” McCullum, 768 F.3d at 1147 (emphasis omitted) (quoting Liese, 701

F.3d at 344).

15
The parties focused substantial attention on whether the VRI machines complied with certain
technical requirements set forth in the ADA regulations. For instance, Plaintiffs claim that
Defendants failed to maintain a “dedicated” internet connection for its VRI machines. 28 C.F.R.
§ 303(f)(1) (requiring VRI devices to have a “dedicated high-speed, wide-bandwidth connection
or wireless connection that delivers high-quality video images” (emphasis added)). It is not
necessary for us to delve into the intricacies of these technical arguments. The touchstone of our
inquiry is whether effective communication actually occurred. See 42 U.S.C.
§ 12182(b)(1)(A)(i) (discrimination occurs when a disabled person suffers the “denial of the
opportunity . . . to participate in or benefit from the” services); id. § 12182(b)(2)(A)(iii)
(discrimination includes the denial of services “because of the absence of auxiliary aids and
services” (emphasis added)). Noncompliance with the technical performance standards for VRI
machines is, by itself, not necessarily enough to make out an effective-communication claim.
What matters is the actual quality of the communication between the patient and hospital staff.

29
 Case: 16-10094 Date Filed: 05/08/2017 Page: 30 of 33

The district court did not address deliberate indifference—it resolved the

case solely on the question whether the hospitals’ auxiliary aids precluded effective

communication. While we have the power to affirm a judgment on any basis

supported by the record, the absence of any analysis by the district court on this

issue makes it particularly difficult to make an informed decision on review. We

therefore remand to the district court for an independent consideration of whether

there exists a triable issue of fact on the deliberate-indifference issue.

Second, Defendants contend that some of Plaintiffs’ hospital visits are time-

barred because they occurred outside the limitations period for this lawsuit.

Neither the ADA nor RA provides a statute of limitations, so we apply the most

analogous state statute of limitations. See Everett v. Cobb Cty. Sch. Dist., 138

F.3d 1407, 1409 (11th Cir. 1998). The most analogous state limitations period

comes from personal injury actions, id., which in Florida is a four-year period, Fla.

Stat. § 95.11(3); see also City of Hialeah v. Rojas, 311 F.3d 1096, 1103 n.2 (11th

Cir. 2002). Plaintiffs filed this lawsuit on May 16, 2014, so according to the

district court and Defendants, any events occurring before May 16, 2010, are time-

barred.

In opposing summary judgment below, Plaintiffs acknowledged that they

“may not receive damages for [their] claims” arising out of hospital visits

preceding the limitations period, but that these earlier visits are “relevant and

30
 Case: 16-10094 Date Filed: 05/08/2017 Page: 31 of 33

admissible” to show deliberate indifference. Doc. 79 at 11. We agree. Hospital

visits occurring before the limitations period are not to be relied upon themselves

as discrete claims of discrimination, but evidence of discrimination during those

visits is relevant to whether the hospitals had the requisite knowledge to establish

deliberate indifference during Plaintiffs’ subsequent hospital visits, which did

occur during the limitations period.16 Thus, on remand, the district court should

consider these earlier visits in deciding whether a genuine dispute of material fact

exists with respect to Defendants’ claimed deliberate indifference.

Third, Defendants argue that all claims against Baptist Health are improper

because it is the parent organization to Baptist Hospital and SMH; it is not itself a

medical facility at which Plaintiffs presented with medical needs. We reject this

contention. There is no rule that a covered entity under the ADA or RA must be

the direct service-provider—in fact the ADA addresses itself to those who own,

lease, or operate a place of public accommodation. 42 U.S.C. § 12182(a). Baptist

16
That evidence is also relevant to Plaintiffs’ claim for a permanent injunction against
Defendants’ allegedly discriminatory policies. Unlike each hospital visit that involved an
impaired informational exchange, which are discrete acts of alleged discrimination, Defendants’
challenged policies may be part of an ongoing alleged violation. Under the “continuing violation
doctrine,” Plaintiffs may rely on hospital visits preceding the limitations period to support their
theory that Baptist’s policies and practices—which continued through the limitations period—
were unlawful. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)
(differentiating discrete acts of discrimination from ongoing, continuing violations); Havens
Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982) (holding that, when a plaintiff challenges
not just discrete acts as unlawful discrimination, but “an unlawful practice that continues into the
limitations period,” the continuing violation doctrine applies (emphasis added) (footnote
omitted)).

31
 Case: 16-10094 Date Filed: 05/08/2017 Page: 32 of 33

Health owns and operates the hospitals at which Plaintiffs presented, it houses the

network to which the VRI machines are connected, and applies its various policies

and procedures to Baptist Hospital, SMH, and affiliated outpatient facilities. We

thus decline to excuse Baptist Health from the lawsuit on this basis.

Fourth, Defendants contend that Silva, in particular, cannot rely on evidence

of discrimination during hospital visits when she presented as a companion, rather

than a patient. In her complaint, Silva (unlike Jebian) alleged discrimination only

in her capacity as a patient, so the district court did not err in declining to consider

evidence of discrimination while Silva was accompanying her daughter to the

hospital for treatment. On appeal, Defendants ask us to ignore that evidence, and

Plaintiffs offer no dispute in their reply brief. For that reason, our analysis has not

relied on any hospital visits during which Silva claims she suffered discrimination

as a companion.

CONCLUSION

We REVERSE the district court’s order granting summary judgments to

Defendants and REMAND for further proceedings consistent with this opinion.

Plaintiffs have Article III standing to proceed with their claims for injunctive relief.

Plaintiffs have also offered sufficient evidence for a rational jury to conclude they

could not communicate effectively with hospital staff due to their hearing

32
 Case: 16-10094 Date Filed: 05/08/2017 Page: 33 of 33

disabilities. So, it was error to grant summary judgment to the hospitals on

Plaintiffs’ claims under the ADA and RA. However, because the award of

monetary damages requires a finding of deliberate indifference, we REMAND the

claims for damages to the district court to consider whether summary judgment is

proper in light of that question.

33