good morning you're on there's a place the court opposing counsel the question that's present in in this case is can a hospital insulate itself from liability when they create a policy in which they give complete discretion to it in this case the district court found that there was ineffective communication that was provided to these twelve deaf plaintiffs in this case there were nine that were remaining at the time of the decision the judge found that there were comprehension failures which were clearly known to the staff in this case the staff was the nurses these nurses had complete discretion to decide whether communicating aids and whether communicating aids would be provided to the plaintiffs in these cases just as the doctors did in the lisa case which is where this judge made his decision from so your argument as i understand it is that a nurse can or constitute a hospital official correct on who can be deliberately and their front to the needs of the patient as long as the nurse has t discretion to determine whether or not this video remote interpreter device will be used for well in this case the nurses are the gate keepers here they are the ones of the first responders and the only responders for all of these patients is are deaf patients they're sick they're coming into the hospital they're lying on a bed we don't we don't have that none of the nurses were deposed we don't have any depositions of the nurses they record the records are quite clear you that there was in effect a communication which is why the district court was able to find that there was an effective communication so and in this case there were also things that were i found there was a jury question as to whether there was in effect of communication yes the judge found that there was you're correct ra he found that there was sufficient evidence to show that there were comprehension failures which caused a corresponding impediment to these plaintiffs understanding while they were in the court in the medical treatment said i'm sorry we work but but but as i mean the real issue is deliberate indifference right correct correct and so the position of bethesda is that well let me ask you this is there anything in the consent decree that but there's no had with the  with the with the department of justice that required live interpreters sign language interpreter at all hospitals can use these devices if they work right absolutely if they work and record in order to get to the jury that the patient's didn't just prefer asaad language interpreter absolutely and there is right there is evidence in this record as the district court found there was in  few cation so there's records there is a record that there were there is evidence that shows that there was ineffective communication so it's not just that they ask for a v r i and that's not what happened here what happened this this case happened against this policy was created against the backdrop of prior lawsuits against bethesda hospital in two thousand and five death couple sued but that's the hospital who failed to provide accommodations to them while they were in treatment in that consent judgment they agreed putting them on notice to certain situations which would require an interpreter live harvey or i it does not matter because it is the same your honor i agree with this court we have no issue with the fact that a hospital can provide rewrite the issue is when they provide for your eye for every single situation that occurs when they provide it when it doesn't work and then sporadic use of the rewrite as is clear from the records of all these patients there were days that went by that they had nothing that these nurses used family members used writing back and forth rather than using interpreters so in that two thousand and five consent judgment there are specific situations in which it is outlined that you should use an interpreter from admission to medical medication risk and benefits of procedures diagnosis prognosis discharge so that at this hospital new those situations when it creates new policy in two thousand and eleven after the regs were changed to say that you could provide interpreters through a remote remote means this hospital failed to provide any guidance to its nurses the policy merely says you will use for iraq and if you're right this is where i'm getting you know i want to go to the issue that is of concern and that is whether there was deliberate indifference by a hospital official she said the nurses were hospital officials and they were deliberately in different but now you're saying there was no guidance provided now you're notified when the president of the f a g came in met with him and explained to him that there is deaf people in the communities in and gave them in a dose of different patients who had been to the hospital during the prior year and the president responded that providing on site interpreters was too expensive and therefore they would use to rewrite only what the f a d president was trying to explain to him was that's fine but then you have to train your staff you have to know which situations you can use the r i n and which is to asians you can't and what is the evidence that hill was deliberately indifferent i mean when the our eyes weren't working at all they would call an interpreter correct now i thought that happened you know the evidence record is replete with times when the  i was not working and i mean it's ok there's working and there is working effectively i mean when the b r i like you can turn it on and not working they never called interpreters that's in there there's only one time was having a problem providing accommodations to deaf patients effectively so in the joe case what's up with that what's the evidence on the record of that that he was on notice that these we are as were working there are there is a deposition testimony from the president of contacted mr hill that it was not working none of these plaintiffs could contact mr hill they were death the issue in this case is that there was ineffective feel occasion they had difficulty communicating and then judge starr is question as i understand it was well was anyone else compliant and you didn't answer that question listen here you answer that question then judge wilson's question was well who was complained to and then i said well was mr hill complying too and so i think the answer is no mr hill does not complain to by these particular jeff individuals he was complained to about other deaf individuals who had problems under the joe case which was decided by this case this court in the two thousand and ten complaints of lesser forms of discrimination or other forms of discrimination against other is sufficient notice to give this hospital these administrators notice of the fact that they have a problem with their policy so they are so so your argument is that there are other plaintiffs who are not plaintiffs in this case who complained about the fact that the official absolutely within the meaning of our case law i think release the case if they have the discretion to determine whether or not the b r r is affective in each individual case is that right yes they have complete discretion from the time testified that six or seven deaf people called him and let him know that there were problems with not six or seven deaf people excuse me six or seven nurses calls him about complaints about death patients because they were not they were saying that we're i wasn't working he said to them is the fear i working and they said yes and he said ok he never came down never checked it never did anything there's no way for a deaf patients even have contact this stuff and she's lying on a bed has to have contact with his wrist manager because it goes through the nurse well then it's issuing it's about what happened ok i thought they have a policy that if you're denied by the nurse and you can make a complaint up the line that their policy there's no policy that the death person has of that there's no there's no grievance procedure there maybe but the deaf person you on your sleeve the deaf person has having a problem with communication deaf people have an inability to often read english which is very limited they're sick they're lying in a hospital bed there's nothing posted on the wall that says call this number if you're having a problem and they couldn't call they would have a problem doing that unless there was a v p in the hospital which there was not a linear function in addition i do want to stress that the most blatant evidence of the liberty and difference in this case is the sign i was actually effective communication when if you are five i was functioning and was effective then it would make perfectly good sense saying hey we're not getting new an interpreter accepted your own cost if this thing is working if it's working and it's effective for that situation you're absolutely correct you're either but that's the problem there's no qualification on that side and this is the message that's been given to the nurses this is what the nurses see a sign that says don't call  patient is going to have to pay for the interpreter so this is the message the nurse is getting all the way through her phone nurses who have all this discretion and all this judgment can't understand that that kind of sign is qualified these saying they have all of their in the opposition with all this discretion and all this judgement but yet they're not the kind of person in a kind of position where you would have the judgment to know that if the thing isn't working you don't make the patient pay for the interpreter you're saying i mean they say it sounds inconsistent to me it does but the fact that this hospital even put out upside like that is of that violation of the a ga i mean you can't surcharge a patient for the cost of a live interpreter you can't you know if the r i is working if the fear ice working effective in that particular situation but you understand that's why we have consistent consultation with the deaf patient there is no consultation not only did  they they create this sign they stopped using the form in the consensus when there were specific situations which they knew they had to provide interpreters for there was a new mission for deaf people have a difficulty reading english so there was an admission for him that we had created that the hospital was to use we've been talking about the rehabilitation the claims and it's all about their images right whether or not they're entitled to compensatory damages because the district court said they've been denied equal access but they don't get compensatory damages unless they can establish there's enough evidence in the record to establish and different and different hospital official that's where we are right correct and we've got testimony in the record by our own these patients that these be our eyes don't work correct and would you agree with me that a nurse official a nurse can be an official if they have the discretion to decide whether or not know that the the nurse as the health care provider has to be entrusted with the discretion to put whatever she needs or he needs to treat their patient to be able to communicate with them what an outlet if the patient says they're getting ready for surgery and there know you're communicating with your doctor when there is a video recording device with the sign language interpreter on the other side and the patient does it's not work and i don't i can't understand i can't understand it it's fuzzy it's blurry which is what all of these patients said in their depositions there's the nurse then have the discretion to bring in a sign language interpreter allowed sign language interpreter know what the nurse is required to do and what was described in detail in mr rich's deposition and dadi kurz deposition who is a nursing supervisor and is the person who is kind of in charge of the video remote interpret in machine is it the nurse has a problem she will tell her charge nurse usually which is the senior nurse on the floor or will directly call the nursing supervisor and there is always a nursing supervisor available to the nursing supervisor then will determine what the problem is and if it's a technical issue but as the has an i t department who will come and try to remedy the problem and often can do that and there are records of that occurring in this case in this record so there is evidence of that in this record this is dorothy kirk is it car who is the nursing supervisor  was deposed but she she did not she actually was involved with one of the plaintiffs in this case carol and donna fria who the video device didn't work the nurse followed the protocol that they always followed and talked to her charge nurse who then called the nursing supervisor who then came had a look at it they couldn't get it to work the nursing supervisor then made the call to the interpreter also in the record long long ago in the record in this case there was a plan of name or steiner who had a couple visits outpatient ambulatory care visits at the hospital and on site interpreter was acquired for him he is no longer a plaintiff he passed away and they did not at his estate as a plaintiff and subsequently amended  include him they filed a motion for a political era injunction in this case for someone who was not a plaintiff in this case and that ultimately was denied but it's part of the record and that woman who was pregnant had  come to the hospital unrelated to her pregnancy to the emergency room for prior child and an onsite interpreter was provided for her when the v o r i wasn't able to provide effective communication so so it's not the case that we've only ever done at one time and that we are hiding behind our nurses we rely on our nurses to determine what is needed to communicate with this patient and to to make the argument that the sunder or should we look at it seems like the district court looked at it and each individual player did and so we should do this thing right and we and we should and that so just because it worked for miss does not necessarily mean that it worked from a sunday or right correct for miss sunderland miss sunderland was preparing for surgery yes and and and it was she says it was blurry and it for o's and she couldn't see the sign language interpreter on the other side at the beginning of the surgery and her son was there and he said it didn't work and he was preparing for she'd come in at the middle of night into the hospital to the emergency room they stabilized her for apparent heart attack they stabilized her in the e r they took blood  gases every few hours and communicated with her personal cardiologist what those readings were her personal cardiologist not in the hospital at his office or at home at six o'clock in the morning invasive cardiologist he came to the hospital and met with miss underlain and her son and discussed what he was going to do with her and was able to communicate without using an on site interpreter or the v r i i he did not ask for it i took his deposition and he said he was able to effectively communicate with his patient he knew that if he needed anything else to communicate sunderland all he had to do was ask a nurse and they would follow it up and get him what he needed but he didn't need it she then went into surgery the catheterization he repaired a blockage in her heart she was in the recovery room when she had a bleed from her growing where they put the catheter and she had to be rushed into emergency surgery now there was no time to get an interpreter for that and there was no decision frankly to be made although they did talk to her son who was there and told him what was going on because she either needed to go in for emergency repair or she would have died and she went in for emergency repair now the one complaint that is in the record about ms sunderland complaining about the p r i is she and her son told a nurse or through the son told the nurse sunderland doesn't like the v r i she wants someone in the room with her the nurse didn't ignore it didn't insulate bethesda for all this bad behavior she called her charge nurse and the charg nurse called the nursing supervisor the nursing supervisor came down to the room turned on the v r i and talked to miss sunderland for half an hour with that b r i and explained this is what we used and it's noted in the record that the v r i worked properly and it was in a room and that the patient understood what they were telling her that's what's in the record they cite to that record notice in the present and i and i apologize in my is son that mrs underlain says it never worked out basic well then why isn't that an issue for the jury to decide whether or not they're going to believe the hospital officials or they're going to believe miss sunderland owner son because well as i as i  argued with in front of judge hurley in the district court we had this that i would concede for the purposes of this summary judgment hearing there is a disputed issue of fact whether there was effect of communication we have doctors we have better call records that all say they were able to communicate the history is correct what they're you know everything in their points to that there was  effective communication and then we have nine plaintiffs who say it never worked ok but you know if there's a dispute about if there's a disputed issue of fact as defective communication that same evidence also goes to deliberate indifference doesn't it i mean if if if there's a decision that there is an effect of communication and then nobody does anything about it that is kind of the same it becomes the same issue doesn't it but there is no evidence that there was a complaint or a problem with the writing going and did anything about it and i just ask the nurse issue confuses me some and i think the point isn't so much of the allegations of hiding behind the nurses if the nurse decides there's no problem and therefore doesn't go higher then is the pain patient out of luck it is the only means of communication basically through that nurse that's essentially what your opposing counsel is saying that there's no effective grievance procedure complaint procedure that can be used for these patients and the nurse really is the end point when you're talking about a denial that that's what i think the argument as well i would say that the record disproves that allegation concoction because with missed sunderland the charge nurse was called the nursing supervisor where this nurse didn't decide to do a denial she decided that there was an issue here and she had to go higher but she couldn't just a nurse could it just like read the sign and said we got to be our right you don't like it too bad you you have to pay for a private interpreter if that's what you want there is no evidence in the record that any of these plaintiffs saw this alleged this the sign and it wasn't posted for the world to say it was the evidence as it was taped to the desk next to the keyboard of this so that the nurses would have it consistent response to the patient when the patient refused to use the song to use the v or i not that he didn't like it or it's not work and said if this is how we provide it if you refuse to use this and you want to get something else you can pay for it and there is no evidence that any plaintiff was ever told that by a nurse there's no evidence that a nurse needed a v r i here's the problem that comes up and what we're dealing with here is that because the p r i is so easy to use they use it when they don't need to use it and if they don't need to use it if they come in and they turn it on and they're going to tell the patient we're going to you know get up and give you a you know you don't bath or take in the bathroom and will get your food and for some reason the nurse can't use it or they can't connect to an interpreter anything is with the v r a i they and we have we had evidence in the record for every single one of these plaintiffs that they read newspapers they watch t v with closed captioning they use text messaging they're not as illiterate as ms smith would argue that they are but one of the things in the d o j she mentions my time's running short she mentions the d o j and consent judgments they do not require us to use an interpreter for particular instances neither one of those documents do and the d o j regulations concerning the use of iraq i and onsite interpreters do not require it it's there is never the word in these instances an interpreter shall be used it's in these instances an interpreter may be used but ultimately the hospital under article or under title three is that it's got to work and be a factor for correct but the the other thing we don't have in this case is a question about how do they communicate i take it when it's just a short direction either a sign or two two or three words on a piece of paper me do the  communication it's like you're going to get up now and walk but i think it's those kinds of things can be it's not what you need the archive for is this is the procedure we're going to do this is the kind of medicine you're going to do maybe it's not specifically in the papers this is this is what you need to do upon your discharge complicated stuff you know you're going to get up and walk now i would think that be easy to communicate the department of justice does  advise that the more complex the more stressful the situation mill be the more likelihood it is that you're going to have to escalate what exhilarate age you choose but they don't mandate it and what we don't have in this record is for all the i mean there's ten this essentially ten lawsuits with ten patients who were in the hospital thousands of medical records and to go cherry pick it one little thing where it didn't work but well it's not in the record is what was trying to be communicated at that time when the nurse made the decision to call the charge nurse or not call the chargers we don't know because they didn't depose a single health care provider other than dr di each who was a hospitalist for many of those so they kind of killed you know two birds or nine birds with one stone in this case and he testified that he always ensures that  communicate with his patients and he does that by whatever means he needs and he can tell as a health professional their responses are correct and he's getting what he needs from this patient number two he knows what they use it but as the number three he's used the v r i system it but that and he's never had a problem with it he's never been denied any request by the hospital and he's never had an instance where he felt he couldn't communicate with his patient that's the only health care provider who has testified in this case other than dr carr danus who is not a hospital employee but missed sunderland's cardiologist who testified the same way mr heflin are you counsel for about with regard to this case i did not follow that peel particularly but i know that judge williams because i had mentioned that her her her ruling to judge hurley and that she had kind of looked at the outcome to find and i buy said there's this case and he's even looked at a judge fairly rejected that i think he probably was correct rejecting that but but any of that i know there was two plaintiffs involved in sylva and they are the i believe the court the allegation was that he or i did not work at times at baptist and at baptist and that there was more evidence because it doesn't work or because it's so difficult and turn on and this is the pattern that we see often in these medical records is that these patients will sit for days without any kind of accommodation sansar sunderland came in the night before she had major cardiac catheterization a heart procedure she had a heart attack this hospital made no efforts to get of even the v r i in which defense counsel says is so easy to turn on they didn't even bother to bring in the virago there was no form of communication with this woman they came in and they did a cardiac catheterization she was in the procedure she testified to waking up later on after she was in recovery seeing blood all over her defense counsel says they explained to the sun because it was emergency procedure that they had to do surgery or she was awake they should have explained to her she thought she was dying there was no one that they are to explain anything to or not even the very air i system and this is the problem and this is recurrent in all of these in two thousand and fourteen she was there for a week the record show the arrive machine does not work the nurses put that in the record but yet they did nothing they did not bother to notify anybody and their decision was not subject to any kind of lisa case that we should have doctors there are employees of the hospital here we have no doctors there is no there is no barrier between the nurse and the administration they have made their policy so difficult that it is almost impossible for them to be sued for this kind of behavior and this behavior will continue to happen because they've insulated themselves by saying the nurses are the officials besides all of that your honor it is not clear that capture is the correct standards even apply in this kind of a case in gaps or there was no policy in this case there is a policy and the supreme court specifically held that their ruling was limited cases with policy without policies further created as a result of a sexual harassment case where a student was sexually harassed what they said and in that case under title nine you have to give notice to file administrative hearing what exactly is the policy the policy here is you will use rewrite for communications with deaf patients if it does not accommodate patient needs without any kind of explanation you will contact administration basically that is the policy so there is no guidance and this is the same problem that was in leasing the only difference here is that it's the nurses because there are no doctors in between those two levels so that