Judge allows some claims to go forward in deaf woman’s suit involving access to ASL interpreter

By Sam Knef | Sep 19, 2017

ST. LOUIS — U.S. District Judge Audrey Fleissig has issued a mixed ruling in an elderly, deaf woman's suit against a skilled nursing facility involving allegations that she was denied an interpreter. 

On Sept. 13, Fleissig, of the U.S. District Court for the Eastern District of Missouri, granted in part and denied in part Delmar Gardens North's motion for summary judgment in a case brought by plaintiff Betsy Bates, 81, who is "profoundly deaf," according to the ruling.

Background information in the order states that following hip surgery, Bates was treated for rehabilitative care at Delmar Gardens for 13 days in May 2013. She later sued because she had not been provided an American Sign Language (ASL) interpreter despite numerous written requests.

Her suit alleged violations of the American Disabilities Act, Rehabilitation Act, the Missouri Human Rights Act and Fair Housing Act (FHA).

In response, Delmar Gardens sought summary judgment and to exclude the testimony of plaintiff expert Dr. Judith Shepard-Kegl.

In noting that a court must view facts in the light most favorable to the nonmoving party, Fleissig granted Delmar Gardens' motion on Bates' FHA claim.

Delmar Gardens argued that Bates failed to provide evidence that she "dwells" at its facility or ever has, as required to state an FHA claim.

Fleissig also agreed that Bates lacked standing to pursue injunctive relief.

But on the substantive claim that Delmar Gardens' alleged failure to offer an ASL interpreter impaired Bates' ability to communicate medically relevant information with nursing care staff, Fleissig found that after review of the record that included Delmar Gardens’ medical records, handwritten notes between Bates and staff and Bates' deposition testimony, "there is a genuine dispute of material fact."

"While it is a close question, a reasonable jury could conclude on this record that Defendants acted with reckless or deliberate indifference," Fleissig wrote. "The Court notes in particular the evidence that Defendants had no policy or training in place addressing interpreters for deaf residents, Plaintiff expressed her need for an interpreter throughout her stay, including after other accommodations were provided, and DG North staff noted in their records Plaintiff’s frustration in not having an interpreter."

She also ruled that Shepard-Kegl's testimony would be allowed in terms of Bates' communication abilities and interpretation needs. However, Fleissig ruled that Shepard-Kegl, "who is not a lawyer," would not be able to "opine as to legal conclusions or to invoke legal terms of art."

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