english which was recognized by the court on motion for reconsideration when it wrongly held that he could read and write he has a right to have medically redell relevant communications available to him to be as effective as hearing people patients do there were a number of consent forms he primarily communicates in american sign language that's his language and  use family yes i and yes he had he was a strange from his family for a long time i mean when he was communicating with his family right when they were communicating it was not in american sign language correct your honor and that was through basic gesturing very very basic concepts i love you how are you things of that sort but for medically relevant communications  extensive communications about risks complications consent forms medical discharge against advice and then dying two days later when i'm having trouble getting my head around here in many instances he did with a sign language interpreter correct corrector indeed for the whole first almost year there's always an interpreter on other occasions there are interpreters sort of sporadically while he's hospitalized are we to look at this somehow globally or are we to look at individual instances you have to treat each medical communication as an instance you cannot look at this as a broad manner because it but i mean but ok so at least one occasion the record seems to indicate that he had a an interpreter the night before a procedure but not on the morning of the procedure and it's not heard percent clear to me but it seems that the procedure was explained to him the night before so i mean in that circumstance do we group those two or are you contending that he has because of course a hearing person the next morning might have a question or might have some reason to inquire and he might not have had that so we're to look at each interaction yes your honor and as the second circuit is held in rights that these and that there should not be non trivial temporal delays of providing these accommodations and so while it's provided the night before you're  there is no communication happening is that a violation or is there some kind of met are there some kinds of medical interactions that don't require communication well the technical assistance manuals of the department of justice talks about things that are more substantial of such as consent treatment discussing diagnoses things of that sort that are clearly communications that distribute them back to many of the forms that are here that do not have an interpreter's signature are not consents to surgery or to some specific procedure at all they don't give any facts on them about what's going to happen it's just you came here to be treated and you agree that we can treat you and these happen repetitively every time he comes for dialysis for example which he does on a regular basis is the absence of an interpreter to interpret that document which he has seen before presented with the consent form to have it ask questions with the doctor have it explained to him is this the same form as before or which he would not necessary mr berry would not necessarily know because he can't read or at least a dream could so fine well that was not all the forms some of the some of the forms were things that he experienced in the past and but other forms were not so could you identify your best one there are literally dozens of interactions that take place documented in the medical records some of which say we were able to communicate to him adequately even though there was no interpreter present others there were interpreters present some there were not the ones that there were and were not very across the spectrum from apparently routine to more complicated give me your best one of an example of a proceeding where quite clearly no question a reasonable jury could say he did not have an adequate communication or other to have one where he had the few moral sheely implanted into him and which  doctor notes that he went through all this discussion about risks and complications and and all these things where an interpreter was not present for that proceeding and there's no way that all these things could have been communicated to him without the benefit of a sign language interpreter another one when he was discharged against medical advice an interpreter was not present for that and he later died a few days later and those were those the two critical forms and times in which and a sign language interpreter definitely should have been provided so that he could effectively communicate and also it's they are entitled to  and the regs say this their communications must be as effective as it is with people without the disability and so just cherry picking and say well they could've explained it here or there or well that should have been sufficient that's not on the same equal footing as as hearing people have one there when they have medical treatment and so also at this point your burden is that there are issues of fact that a reasonable jury could find that he did not have adequate equivalent to a hearing person ability to be informed yes you are that's absolutely correct and the judge here makes favorable infant evans's in favor of the movement here by making these assumptions  that it must have been explained sixteen hours later or it must have been explained fourteen hours before with an interpreter how can it get back to the left this is on march the twenty seventh of  twenty thirteen and i believe that there is a an informed consent for surgical procedure and consent to anesthesia which forms were signed with an interpreter that's  appendix seven thirty eight and seven thirty  contending that it is a requirement of the rehabilitation act that on each occasion that he interacts with medical personnel he must have if as a matter of fact in mr barry's case he is a jury could find that he can't communicate in writing and he can't speak in a way that is intelligible then at least for him it sounds like a jury could find that he needs to have an interpreter every time well yes the jury could find that but for every single i mean look there are simple things where he's been taken to the bathroom he's is that we have a record that when he gave consent for that procedure he had an interpreter now the fact that he didn't have an interpreter the next day i  mean we recognize he might have kind of question mark but you have no evidence that he had a question or that he's consent would have been rescinded or anything so i'm not sure how having been given an interpreter at the critical time when he gave his consent the question of whether he had an interpreter the next day or whenever the surgery occurred is is something that caused him any damage here  i mean it's pretty immune there are other instances of this when he had the vascular surgery i mean he had a number of interpret services the night before and the day after it's sadder it's just didn't happen on the day of the surgery but i'm not sure i have any record basis for thinking that this caused him any injury you know this is not a case in which this gentleman was treated without ever having an interpreter he had an interpreter at and about these critical events so what is it you're you're saying is the denial here the deprivation  here is that he was not provided an equal part to participate in his medical care and any reasonable jury could understand that when you can't communicate during junctures during a critical  and at that point the doctor just got so frustrated and then he walked out of the room because he couldn't communicate with mr berry and she was present for that and she she saw mr berry's frustration with the communication there has to  a video remote interpreter system available to them twenty four seven they can bring in this machine at any point in time so any time that they need to have any sort of medical communications with them they know that they can bring this device and there are many medical and in the record is  with times where they write down that having trouble with communication need sign language help and they post that he is having trouble trouble with vocalizing or reading lips things of that sort so these are things that they know in the record that there is frustration or that there is problems with communication but they don't get an interpreter for that very instance and then you don't see well i've come back with an interpreter to explain what i pre interactions that mr berry had with hospital staff the hospital records indicate that the hospital staff was extremely attentive to his needs and to communication efforts with the certainly there is not a single instance where the staff was not aware that mr barry was deaf or hard of hearing and in fact documented that fact and also documented carefully all the efforts that were made to communicate and to make sure that there was affective communication with the patient those efforts include not only the v r i video remote interpretation machine at lincoln hospital and also in person interpreters virtually every day of his stay at jacoby hospital they also include lip reading which clearly plaintiff admits that mr perry couldn't read lips in fact that's how he communicated with his family the hospital staff also able to communicate through speech well that hospital staff were making the efforts it was whether or not there was a violation of the eighty in the rehabilitation act and the hospital here clearly documented their effort to make sure that he understood and each and every interaction as the district court found it each and every interaction the staff documented what efforts were made to ensure that but the district court also correctly found that he was in fact supplied with sign language interpretation at critical junctures of his medical treatment so here you have a person who's been undergoing dialysis haemodialysis for months suggesting we should  be looking at the totality of the treatment in assessing this question because the medical care is an ongoing it was ongoing and i would say yes you do need to look at the totality of the treatment you need to look at the context of each contact each medical intervention somewhere more invasive than others were some significant event which he would not he was not given an adequate opportunity to communicate that could be a stand alone violation if in fact there were individual instances where he was not supplied perhaps for example the video remote interpretation machine the testimony there is evidence that the staff at that moment did not know how to use it however that's a single violation which does not amount to perhaps it's a single violation maybe but it does not necessarily he checked himself if he checked him south self out against medical advice i believe that was in october twenty ninth if i'm not mistaken on the date and the third there's this  is lincoln hospital yes this staffer attempting to explain the seriousness of the situation the need for admission and treatment the potential dangers of his condition including morbidity and  one doctor went so far as to arrange a psych evaluation for his decision capacity because he had very poor insight about his condition and hearing that period there was no interpreter there was no interpreter at that time however very for him a dialysis treatment on october third at lincoln hospital is that what you're referring to so his treatment was limited to the most dialysis at that point about the treatment per se of the modelling but it sounds like what's going on is they're trying to impress on him the seriousness of his situation and they're not getting through to the point where you know they're worried that he can't understand anything now i don't know whether that is because he has limited intellectual capacity and there's nothing much they could ever have done whether that's because he can't hear and understand what they're saying or ask questions but that would the fact that i can't figure that out doesn't that suggest a jury question as to whether he needed an interpreter in that interaction no your honor because the notes indicate that he was able to understand the voice the staff were they were trying to explain to him but i believe that basically they he was verbal he had statements and there was no interpreter present but there were interpreters present at other times in conjunction with that particular visit interpreters for most of his for most many of the visits and the critical visits at lincoln hospital and including every day at a hospital and yes the fact is that it's on that particular time let's assume even though the staff did document what was happening and that he had interpreters for other critics for his medical care or other critical times certainly the staff was able to effectively communicate with him even on that date because if they hadn't been able to communicate with him on that point they would have they would have done something differently and even assuming for the sake of argument that that one day there was a technical violation and there should have been at that very moment an interpreter again on the record does not reflect that there is deliberate indifference here i also want to just get back to the our i machine there the supervisor who are on duty were very upset that in fact the staff didn't know how to use the r i machine on that particular date and she ordered them to go back and read the manual that is just the opposite of deliberate indifference so even assuming that's a violation which we would say one inst  barring that yes the court should affirm that right summary judgment and we are not conceding that there were any violations here but even assuming for the sake of argument that individual interventions they are not entitled to compensatory damages and certainly they haven't shown any injury certainly mr barry never himself requested its own language interpreter or no nor were any complaints or grievances filed with on language interpreter was provided and explained to him the dangers of leaving against medical advice that some language interpreter was brought in by the social worker even though mr berry had previously declined so on language interpretation so yes there is evidence of deliberate indifference we had to pose thirty six witnesses from the hospitals and the lincoln hostel thirty six when this indicated that they were the hospital's not aware of any policy regarding the evaluation of a deaf patient's communication abilities they have never provided any training on how to identify communications to a deaf patient and were not aware of how the nursing department at lincoln trained medical staff on how to communicate and accommodate death death patients exact number it's seems hard given that it is you know scores of times how we can say that it was deliberate indifference well i mean whether or not it was a training program they routinely bourse flying in with a sign language interpreter how you can argue deliberate indifference so giving the third incident as an example they were trying to explain all these things to him indicated that he had port insight into his condition and and and decided to go forward with without the benefit of a sign language interpreter again with that day with the treatment that he had received on very sick asians when he didn't understand was the scope of the need for other treatment and before other treatment was pursued and he was pursued he was given a sign language interpreter but the standard is not whether he broadly understood what was going at rights and all of those say that this is a fact specific and you cannot look at broadly that just because a similar procedure might have been given later on with an interpreter that's that that's sufficient for them to meet their burden but the problem here it seems really with the case is that unfortunately mr barry is deceased and he's not here to tell us what he understood or did not answer except in the couple of instances where there is testimony from denise very about specific instances what we mostly are trying to draw on is the hospital record which contains the representations of medical personnel on some occasions that we were able to make ourselves understood no one might have some ground for skepticism about that but it's difficult to oppose something with nothing we have no other account of those communications other than the communicate the account of the doctors who said we did what we couldn't we thought it was good enough so what i'm saying is that this should go in front of a jury this is these are disputed issues if there's enough evidence in the medical record you have to have evidence from which the jury could conclude that the man didn't understand despite what the doctors and if you look at the briefing in the appendix there are instances where there's clearly records in the medical records that he didn't understand what was going on in that in that particular instance or that there were issues communicating in that particular instance just as busy whatever state is you know it's fine to say each individual instance stands on its own but so you have an instance where doctors trying to communicate something and can't get through i'm not not getting anywhere then he goes away and then somebody comes back later with an interpreter i'm not sure i understand what the problem is in that instance i the attempt to communicate and then later an interpreter is provided and how are we to infer that just the fact that there was no interpreter at the first attempt is a violation but in most instances there was no evidence that they actually came back to re explain with an interpreter what had happened that was an inference that you have to draw in favor of the move of the movement here that's a lot of use to me mean the man's many problems are reflected in the various course of treatments that he got and before they were conducted there seems to have been at least one session with an interpreter so you know when they tried globally to explain all his myriad problems on october third if that's how we read that he didn't understand them but then there is a course of treatment over an extended period of time during which before particular procedures he speaks with the doctors with an interpreter well i mean you're not suggesting that they should have held in the air till a got an interpreter on october third well they had access to immediately get a video remote interpreter machine which they have readily available and they can get within minutes if and they didn't do that they didn't conduct any procedures and and you're not saying that he suffered any adverse consequences from the fact that he didn't understand that date but was then had it explained to him with an interpreter a week later or a month later whenever the procedures place there's there's no evidence that what was discussed on that particular day was really explained time and again that's you're treating someone with a disability differently and that's discrimination that here and yet nominal damages would be available light i just try to case in the eastern district of louisiana where we had a dead plaintiff and the corps only awarded a nominal damages it's available and yes your honor th