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Case of the Month: February 2010

North Memorial Medical Center/Health Care to pay $105,000 to settle two charges of disability discrimination against deaf individuals

CASE # 49805, Closed 1-15-10

Charging Party

Mark Epstein
Brooklyn Park, MN

Respondent

North Memorial Medical Center
3300 Oakdale Ave N
Robbinsdale, MN 55422

The following information is a summary of the department's findings and contains excerpts from other public documents relevant to this case.

Factual Basis of the Allegations—What the Charging Party Alleged

In March 2007 Mark Epstein, a deaf male, was hospitalized for five days at North Memorial Medical Center for treatment of a digestive disease. On the day he was admitted, he asked during the admission process for an ASL (American Sign Language) interpreter, and was told that one would be provided. But none was, and Epstein underwent a CT scan without an interpreter, using written notes for communication among himself, medical personnel, and his wife (who is also deaf).

He continued to ask for an ASL interpreter each day during the four days of his hospitalization, and despite assurances that one would be provided, the hospital never made one available. During hospitalization he received a medication, but could not understand what it was or why it had been provided, because he does not understand written notes in the same way as ASL. Because no interpreter was provided when he was discharged from the hospital, he was uncertain about the reasons for his discharge or his doctor's assessment of his health.

Nelson filed a charged of discrimination on June 7, 2007, alleging that North Memorial Medical Center had discriminated against him in the area of public accommodations, based on his disability.

Summary of the Commissioner's Memorandum—What the Department's Investigation Found

In answering the charge, the hospital maintained that Mr. Epstein had not requested third-party interpreters, but had asked that his wife interpret for him. However, evidence showed that the hospital had recorded Mr. Epstein's need for an interpreter when he has first admitted, but that no medical personnel had acted upon his request. Evidence further showed that at least one doctor was aware of the wife's discomfort with interpreting in such a situation, but the doctor took no action.

The hospital's system places the burden on the patient or a companion to request one every time an interpreter is needed, the department notes. But because patients and their families do not always know when a physician or other specialist will be coming, the burden properly rests on the hospital to arrange an interpreter for discussion of medical history and treatment options, obtaining informed consent for treatments, and similar instances. The hospital's system places a further burden on patients in that the time between a request for an interpreter and the actual appearance of an interpreter may delay care to the extent that a patient may be willing to settle for communication by some less effective alternative, such as writing or allowing a family member to interpret.

"Apart from concern about privacy issues, interpretation by family members present a risk because family members have an emotional stake in the patient's condition and most likely do not have the expertise to understand complicated medical information. They may therefore interpret inaccurately or incompletely," the department concluded.

The hospital asserted that it had provided Mr. Epstein with effective communication and that he understood necessary information. But Mr. Epstein rebutted that he and his wife were often confused about the treatment he received. The department noted that "the respondent is not in a position to make an on-the-spot assessment of whether an individual whose primary language is ASL has an adequate grasp of written or spoken English, including medical terminology, such that the patient and/or companion will gain the same level of understanding of care instruction and expectations about the patient's condition as a person who is fully literate in written and spoken English."

The department found probable cause to believe that North Memorial Health Care had discriminated against Mark Epstein, in violation of the Minnesota Human Rights Act.

Terms of Settlement

In a negotiated settlement, North Memorial Health Care agreed:

  • To pay Mark Epstein $21,000
  • To pay Martha Epstein $21,000
  • To pay $8,000 to the Minnesota Disability Law Center, which represented Nelson;
  • To a series of provisions and policies designed to ensure that North Memorial Health Center will provide deaf or hard of hearing patients and companions with the full and equal enjoyment of its services, as required by the American with Disabilities Act (ADA), the Minnesota Human Rights Act, Section 504 of the Federal Rehabilitation Act, and the terms of the settlement. The terms include language that:
    1. Provides examples of the circumstances under which an interpreter will be provided;
    2. Requires North Memorial to hire or contract for qualified sign language interpreters who will be available 24 hours per day and/or at the request of North Memorial Health Care.
    3. Requires North Memorial to provide training for a Deaf and Hard of Hearing Coordinator and other key personnel in the requirements of federal and Minnesota law to ensure effective communication with deaf or hard of hearing patients
    4. Requires North Memorial to submit reports on its compliance with the agreement, at regular, specified intervals, to the Minnesota Department of Human Rights.

The Department of Human Rights publishes information about selected cases and settlement agreements, including its "Case of the Month," as part of its mandate under the Human Rights Act to "educate to eliminate" discrimination. Settlement agreements do not constitute an admission of any liability, an admission of a violation of the Minnesota Human Rights Act or any other law, or an admission of wrongdoing by the respondents.

Case # 49101, Closed 8-31-09

patient with medications

Charging Party
David Nelson
Plymouth, MN

Respondent
North Memorial Health Care
3300 Oakdale Ave N
Robbinsdale, MN 55422

Factual Basis of the Allegations—What the Charging Party Alleged

David Nelson's wife had cancer, and was hospitalized several times between January 23, 2006 and March 27, 2006 for treatment. Each time Mr. Nelson, who is deaf, would accompany his wife, who was also deaf, and was actively involved in her treatment. But effective communication was difficult. Among other things, the hospital failed to provide the Nelsons with qualified ASL interpreters for many meetings with doctors and medical staff.

Mr. Nelson's wife died later in 2006. In January 2007, Nelson filed a charge of discrimination with the Minnesota Department of Human Rights, alleging that the hospital had failed to make reasonable accommodations for him and his wife by failing to provide auxiliary aids and services necessary to ensure effective communication.

Summary of the Commissioner's Memorandum—What the Department's Investigation Found

In answering the charge, the hospital argued that it had provided interpreters every time one was requested, except once when the referral agency it uses was unable to fill the request. The Department of Human Rights noted that the hospital's system places the burden on the patient or a companion to request one every time an interpreter is needed. However, because patients and their families do not always know when a physician or other specialist will be coming, the burden properly rests on the hospital to arrange an interpreter for discussion of medical history and treatment options, obtaining informed consent for treatments, and similar instances. The evidence showed that although interpreters were provided for some important meetings between Mr. Nelson and his wife's care team, interpreters were not requested for other important meetings.

Evidence also showed that when interpreters were requested and were not available, the fault lay at least partly with the hospital's procedures for providing interpreters. In one instance, an interpreter was not told which physician had requested the service, and left after interpreting for a nurse who arrived fortuitously before the requesting physician. In a second instance, the unit coordinator reported that interpreting services had been "set up" when in fact they had only been requested from a referral agency. Because referral agencies circulate requests to a network of free-lance interpreters, a request for services is not the same as confirmation that the service can actually be provided.

The department's investigation further showed that during his wife's routine care, such as setting up an intravenous drip, the respondent failed to communicate with the charging party by writing or other effective means. The evidence showed that the respondent consistently over-estimated Mr. Nelson's ability to understand spoken English. The department noted that "the respondent is not in a position to make an on-the-spot assessment of whether an individual whose primary language is ASL has an adequate grasp of written or spoken English, including medical terminology, such that the patient and/or companion will gain the same level of understanding of care instructions and expectations about the patient's condition as a person who is fully literate in written and spoken English."

"The assumption that a deaf person understands medication information presents the risk that critical instructions will not be understood," the department's investigation concluded, citing studies that had found that hearing people are likely in to misinterpret other gestures used by the deaf and hard of hearing. The department found probable cause to believe that North Memorial Health Care had discriminated against David Nelson, in violation of the Minnesota Human Rights Act.

Terms of Settlement

In a negotiated settlement, North Memorial Health Care agreed:

  • To pay David Nelson $44,000 (in two payments of $22,000);
  • To pay $6,000 to the Minnesota Disability Law Center, which represented Nelson;
  • To pay a $5,000 civil penalty to the State of Minnesota;
  • To a series of provisions and policies designed to ensure that North Memorial Health Center will provide deaf or hard of hearing patients and companions with the full and equal enjoyment of its services, as required by the American with Disabilities Act (ADA), the Minnesota Human Rights Act, Section 504 of the Federal Rehabilitation Act, and the terms of the settlement. The terms include language that:
    1. Provides examples of the circumstances under which an interpreter will be provided;
    2. Requires North Memorial to hire or contract for qualified sign language interpreters who will be available 24 hours per day and/or at the request of North Memorial Health Care.
    3. Requires North Memorial to provide training for a Deaf and Hard of Hearing Coordinator and other key personnel in the requirements of federal and Minnesota law to ensure effective communication with deaf or hard of hearing patients
    4. Requires North Memorial to submit reports on its compliance with the agreement, at regular, specified intervals, to David Nelson and to the Minnesota Department of Human Rights.

This settlement agreement does not constitute an admission of any liability, an admission of a violation of the Minnesota Human Rights Act or any other law, or an admission of wrongdoing by the respondent.