Verdicts

Circuit Revives Suit over Failure to Find Interpreter for Deaf Patient

The U.S. Court of Appeals for the Second Circuit has revived a lawsuit alleging that a New York hospital's failure to provide an interpreter for a deaf patient constituted discrimination under the Rehabilitation Act of 1973. Loeffler v. Staten Island Univ. Hospital, — F.3d —-, 2009 WL 3172687 (2d Cir. (N.Y.) 10/6/09).

Robert Loeffler underwent heart surgery at Staten Island University Hospital in October 1995. Loeffler and his wife, who are both deaf, alleged that they made several attempts prior to the operation to get the hospital to secure the services of an interpreter to help them in communicating with the hospital's staff. These efforts were unsuccessful. The couple's hearing minor children ' at the time 13 and 17 years old ' also claimed they unsuccessfully asked for such help. There were factual disputes between the parties concerning whether the hospital tried to get an interpreter or arrange for a device through which the Loefflers could communicate; whether and when the family pressed for such services; and whether they objected when their requests were denied.

In the absence of adult interpreters, the Loefflers' children were drafted to help their parents communicate with the medical staff. The 13-year-old boy claimed that he tried to get assurances from a doctor following his father's surgery, but the doctor patted him on the back, laughed off the boy's concerns and told him his father was “doing just fine.” A nurse also allegedly told the boy that his father was writhing around and grabbing his ankle because “that was how deaf people communicate.” She purportedly dismissed his concerns, saying, “What do you know, you're a kid.” In fact, Loeffler had suffered a stroke and had to undergo another operation. The family brought suit, seeking both injunctive relief and money damages.

Section ' 504 of the Rehabilitation Act of 1973 states that no one, on account of their disability, can be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The trial court granted summary judgment to the hospital, determining it could not be found liable for money damages under ' 504 because its failure to provide a sign interpreter was not the result of deliberate indifference. The appellate court reversed, finding that there was inadequate evidence that the lower court, in considering summary judgment, construed all the facts in a light most favorable to the Loefflers. In support of this position, the Second Circuit noted that the trial court made no reference to the family's attempts to secure an interpreter before surgery or afterward; did not mention that the family made several requests for a mechanical device to help them communicate; and did not mention the Loefflers' son's testimony about the doctor who “laughed off” his requests. “Considering this evidence, we conclude that a reasonable jury could conclude that persons at the hospital had actual knowledge of discrimination against the Loefflers, had authority to correct the discrimination, and failed to respond adequately,” concluded the court.

GA Supreme Court Limits Application of Extension of Limitations Period

Georgia's Supreme Court has ruled that the state's “new injury” rule, which provides an exception to the normal two-year limitations period for medical malpractice misdiagnosis cases, did not apply to extend the limitations period in this case involving the misplacement of radioactive “seeds” to treat a plaintiff's prostate cancer. McCord v. Lee, — S.E.2d —-, 2009 WL 3334492 (Ga. 10/19/09).

The patient, diagnosed with prostate cancer, underwent prostate brachytherapy surgery during which the radiation oncologist implanted radioactive “seeds.” The patient brought a medical malpractice action against the oncologist, the oncologist's practice group, and the hospital, alleging the seeds were implanted in the healthy lower half of his prostate instead of in the cancerous upper half. The trial court granted the defendants' motion for summary judgment, which the Court of Appeals reversed, in part, finding that although this was not a misdiagnosis case, it should nonetheless be treated as a “new injury” case. The Court of Appeals reasoned that “[t]he misdiagnosis cases are useful in that, while they discuss an 'exception' to the two-year statute, they are simply applying the basic rule that the statute begins to run when the injury occurs, which is not necessarily the same time the malpractice is committed.” The intermediate court used a “date of discovery” standard for determining compliance with the limitations period.

Georgia's Supreme Court reversed, holding that the new injury rule does not apply to extend the limitations period in a case such as this, where there was no misdiagnosis. “A patient suffers a 'new injury' if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition,” said the court. A new injury does not exist if the patient's subsequent symptoms were symptoms of the same injury that existed at the time of the alleged misdiagnosis. In such cases, the normal
two-year limitations period of OCGA ' 9-3-71(a) applies.

Chief Justice Carol Hunstein dissented. She pointed out that the new injury exception was developed in misdiagnosis cases to accommodate situations in which a misdiagnosis resulted in the failure to treat a benign condition, which then remains latent and later develops into a more serious, less treatable condition. In such situations, the limitations period is extended by the new injury rule because, as stated in Cleaveland v. Gannon, 284 Ga. 376 (2008), “the deleterious result of [the misdiagnosis] is not pain or economic loss that the patient suffers beginning immediately and continuing until the original medical condition is properly diagnosed and treated. Rather, the injury is the subsequent development of the other condition.” (Citations and punctuation omitted.)

Concluded Justice Hunstein, “Just as in a misdiagnosis case, this case presents the situation in which the act of alleged medical negligence yielded no immediate manifestations of injury or other adverse consequence. Thus, the rationale underlying the use of the new injury exception in misdiagnosis cases would apply equally in this scenario. In utilizing the new injury exception here, the Court of Appeals simply extended its reasoning to a situation entirely analogous to that for which it was originally conceived. Rather than embrace the simple logic in the Court of Appeals' analysis, the majority rejects this approach in the apparent belief that misdiagnosis cases constitute a category so distinct from other malpractice cases that the rules applicable thereto are by definition ill-suited to other contexts. Because I fail to discern this distinction, I disagree with the majority's categorical refusal to consider applying the new injury exception herein.”

Circuit Revives Suit over Failure to Find Interpreter for Deaf Patient

The U.S. Court of Appeals for the Second Circuit has revived a lawsuit alleging that a New York hospital's failure to provide an interpreter for a deaf patient constituted discrimination under the Rehabilitation Act of 1973. Loeffler v. Staten Island Univ. Hospital, — F.3d —-, 2009 WL 3172687 (2d Cir. (N.Y.) 10/6/09).

Robert Loeffler underwent heart surgery at Staten Island University Hospital in October 1995. Loeffler and his wife, who are both deaf, alleged that they made several attempts prior to the operation to get the hospital to secure the services of an interpreter to help them in communicating with the hospital's staff. These efforts were unsuccessful. The couple's hearing minor children ' at the time 13 and 17 years old ' also claimed they unsuccessfully asked for such help. There were factual disputes between the parties concerning whether the hospital tried to get an interpreter or arrange for a device through which the Loefflers could communicate; whether and when the family pressed for such services; and whether they objected when their requests were denied.

In the absence of adult interpreters, the Loefflers' children were drafted to help their parents communicate with the medical staff. The 13-year-old boy claimed that he tried to get assurances from a doctor following his father's surgery, but the doctor patted him on the back, laughed off the boy's concerns and told him his father was “doing just fine.” A nurse also allegedly told the boy that his father was writhing around and grabbing his ankle because “that was how deaf people communicate.” She purportedly dismissed his concerns, saying, “What do you know, you're a kid.” In fact, Loeffler had suffered a stroke and had to undergo another operation. The family brought suit, seeking both injunctive relief and money damages.

Section ' 504 of the Rehabilitation Act of 1973 states that no one, on account of their disability, can be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The trial court granted summary judgment to the hospital, determining it could not be found liable for money damages under ' 504 because its failure to provide a sign interpreter was not the result of deliberate indifference. The appellate court reversed, finding that there was inadequate evidence that the lower court, in considering summary judgment, construed all the facts in a light most favorable to the Loefflers. In support of this position, the Second Circuit noted that the trial court made no reference to the family's attempts to secure an interpreter before surgery or afterward; did not mention that the family made several requests for a mechanical device to help them communicate; and did not mention the Loefflers' son's testimony about the doctor who “laughed off” his requests. “Considering this evidence, we conclude that a reasonable jury could conclude that persons at the hospital had actual knowledge of discrimination against the Loefflers, had authority to correct the discrimination, and failed to respond adequately,” concluded the court.

GA Supreme Court Limits Application of Extension of Limitations Period

Georgia's Supreme Court has ruled that the state's “new injury” rule, which provides an exception to the normal two-year limitations period for medical malpractice misdiagnosis cases, did not apply to extend the limitations period in this case involving the misplacement of radioactive “seeds” to treat a plaintiff's prostate cancer. McCord v. Lee, — S.E.2d —-, 2009 WL 3334492 (Ga. 10/19/09).

The patient, diagnosed with prostate cancer, underwent prostate brachytherapy surgery during which the radiation oncologist implanted radioactive “seeds.” The patient brought a medical malpractice action against the oncologist, the oncologist's practice group, and the hospital, alleging the seeds were implanted in the healthy lower half of his prostate instead of in the cancerous upper half. The trial court granted the defendants' motion for summary judgment, which the Court of Appeals reversed, in part, finding that although this was not a misdiagnosis case, it should nonetheless be treated as a “new injury” case. The Court of Appeals reasoned that “[t]he misdiagnosis cases are useful in that, while they discuss an 'exception' to the two-year statute, they are simply applying the basic rule that the statute begins to run when the injury occurs, which is not necessarily the same time the malpractice is committed.” The intermediate court used a “date of discovery” standard for determining compliance with the limitations period.

Georgia's Supreme Court reversed, holding that the new injury rule does not apply to extend the limitations period in a case such as this, where there was no misdiagnosis. “A patient suffers a 'new injury' if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition,” said the court. A new injury does not exist if the patient's subsequent symptoms were symptoms of the same injury that existed at the time of the alleged misdiagnosis. In such cases, the normal
two-year limitations period of OCGA ' 9-3-71(a) applies.

Chief Justice Carol Hunstein dissented. She pointed out that the new injury exception was developed in misdiagnosis cases to accommodate situations in which a misdiagnosis resulted in the failure to treat a benign condition, which then remains latent and later develops into a more serious, less treatable condition. In such situations, the limitations period is extended by the new injury rule because, as stated in Cleaveland v. Gannon , 284 Ga. 376 (2008), “the deleterious result of [the misdiagnosis] is not pain or economic loss that the patient suffers beginning immediately and continuing until the original medical condition is properly diagnosed and treated. Rather, the injury is the subsequent development of the other condition.” (Citations and punctuation omitted.)

Concluded Justice Hunstein, “Just as in a misdiagnosis case, this case presents the situation in which the act of alleged medical negligence yielded no immediate manifestations of injury or other adverse consequence. Thus, the rationale underlying the use of the new injury exception in misdiagnosis cases would apply equally in this scenario. In utilizing the new injury exception here, the Court of Appeals simply extended its reasoning to a situation entirely analogous to that for which it was originally conceived. Rather than embrace the simple logic in the Court of Appeals' analysis, the majority rejects this approach in the apparent belief that misdiagnosis cases constitute a category so distinct from other malpractice cases that the rules applicable thereto are by definition ill-suited to other contexts. Because I fail to discern this distinction, I disagree with the majority's categorical refusal to consider applying the new injury exception herein.”