# Bax v. Doctors Medical Center of Modesto > District Court, E.D. California · August 24, 2021 URL: https://www.frixlaw.com/law-library/cases/10029690 ## Case - **Court:** District Court, E.D. California - **Decided:** August 24, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10029690 ## How later opinions describe it (automated extraction) - noting that “emotional damages, 10 like other forms of compensatory damages, are designed to make the plaintiff whole” - affirming the district court’s award of compensatory damages “in its entirety,” which included an award of compensatory damages for 25 emotional pain and suffering under Title II of the ADA ## Opinion text Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 1 of 71 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK BAX, et al., No. 1:17-cv-01348-DAD-SAB 12 Plaintiffs, 13 v. FINDINGS OF FACT AND CONCLUSIONS OF LAW 14 DOCTORS MEDICAL CENTER OF MODESTO, INC., 15 Defendant. 16 17 18 This case concerns claims of disability discrimination. Plaintiffs Mark Bax and Lucia 19 Pershe Bax (collectively “plaintiffs”) are deaf and communicate primarily in American Sign 20 Language (“ASL”).1 They contend that defendant Doctors Medical Center of Modesto, Inc. 21 (“DMC”) discriminated against them during their separate hospital visits by not facilitating 22 effective communication in violation of Title III of the Americans with Disabilities Act (“ADA”), 23 Section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”), Section 1557 of the 24 ///// 25 26 1 “ASL is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages. In many cases, there is no 27 one-to-one correspondence between signs in ASL and words in the English language.” U.S. EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1105 (9th Cir. 2010) (internal citations 28 omitted). 1 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 2 of 71 1 Patient Protection and Affordable Care Act (“ACA”), and the California Unruh Civil Rights Act 2 (“the Unruh Act”).2 3 A three-day bench trial in this case commenced on February 4, 2020. At trial, the court 4 heard from nine witnesses and admitted 132 exhibits into evidence. (Doc. No. 63.) The 5 witnesses who were sworn and testified at trial included: plaintiff Mark Bax, plaintiff Lucia Bax, 6 Andrea Riemersma (a nurse at DMC), Janice Halloran (the nursing support services manager and 7 ADA coordinator at DMC), Dr. Michael Wolterbeek (a foot surgeon with privileges at DMC), 8 LaDonna Martinez (the director of patient care services at DMC), Janelle Moland (a licensed 9 clinical social worker at DMC), Lonnie Vaughn (a diabetes education and care specialist at 10 DMC), and Anna Chalko (a former nurse at DMC). (Id.; Doc. Nos. 68–70.) In addition, the court 11 admitted the deposition of Blaine Rourke (a nurse practitioner at DMC) in lieu of live testimony. 12 (Doc. No. 70 at 48.) Following trial, the court directed the parties to submit proposed findings of 13 fact and conclusions of law, which the parties separately filed on March 23, 2020. (Doc. Nos. 71, 14 72.) 15 Having considered the testimonial evidence and exhibits, the parties’ arguments, and the 16 applicable law, the court sets forth the following findings of fact and conclusions of law pursuant 17 to Federal Rule of Civil Procedure 52(a).3 18 ///// 19 ///// 20 ///// 21 2 22 A third plaintiff, Mary Birmingham, resolved her claims against DMC in this case by accepting an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure in late 2018. 23 (See Doc. Nos. 20, 28.) 24 3 The undersigned apologizes for the excessive delay in the issuance of these findings of fact and conclusions of law. This court’s overwhelming caseload has been well publicized and the long- 25 standing lack of judicial resources in this district long-ago reached crisis proportion. That 26 situation, which has continued unabated for over eighteen months now, has left the undersigned presiding over 1,300 civil cases and criminal matters involving 735 defendants at last count. 27 Unfortunately, that situation sometimes results in the court not being able to issue orders in submitted civil matters within an acceptable period of time. This situation is frustrating to the 28 court, which fully realizes how incredibly frustrating it is to the parties and their counsel. 2 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 3 of 71 1 FINDINGS OF FACT 2 A. The Parties 3 Plaintiff Mark Bax has been deaf since he was four years old. (Trial Tr. Vol. 1, 25:3–5.)4 4 Mr. Bax considers ASL to be his first language and English to be his second language. (Vol. 1, 5 25:6–8). He uses English when texting, and reads English to practice the language. (Vol. 1, 6 25:16–23.) Mr. Bax occasionally wears hearing aids to hear ambient sound. (Vol. 1, 25:9–15.) 7 To communicate with someone over the phone while he is at home, Mr. Bax uses a video relay 8 service, in which a sign language interpreter and Mr. Bax can see each other on a screen, and the 9 interpreter interprets what is being said over the phone. (Vol. 1, 26:10–20.) Mr. Bax is married 10 to Lucia Bax. (Vol. 1, 26:21–23.) 11 Plaintiff Lucia Bax has been deaf since she was three years old. (Vol. 1, 77:7–10.) Mrs. 12 Bax grew up in El Salvador and was educated in the Spanish language until she moved to the 13 United States at the age of thirteen and started learning ASL at a day school for the deaf. (Vol. 1, 14 75:21–77:4.) Mrs. Bax considers her first language to be Spanish, her second language to be 15 ASL, and her third language to be English. (Vol. 1, 77:15–17.) She can lip read in Spanish a 16 little bit, as that is one of the ways she communicated with her parents who are not deaf. (Vol. 1, 17 77:24–78:1, 78:20–79:2.) Mrs. Bax communicates using ASL, though she feels that her skill 18 level with ASL is average. (Vol. 1, 77:11–14.) Mrs. Bax also feels that she is not very skilled at 19 writing and reading English because she is still learning and practicing. (Vol. 1, 77:18–23.) 20 Defendant DMC is an acute care hospital in Modesto, California, that provides a wide 21 range of medical services for acutely sick patients. (Vol. 2, 266:9–20.) DMC is one of three 22 acute care facilities in the central valley region. (Vol. 2, 266:21–267:3.) 23 Mr. Bax was a patient at DMC in October and November 2015, with Mrs. Bax as his 24 companion. Mrs. Bax was a patient at DMC in January 2017, with Mr. Bax as her companion. 25 ///// 26 4 There are three volumes of the reporter’s transcript of the trial proceedings in this case that 27 correspond with the three days of trial: Vol. 1 (Doc. No. 68); Vol. 2 (Doc. No. 69); and Vol. 3 (Doc. No. 70.) Subsequent citations to the trial transcript herein will use the volume number 28 rather than the docket number. 3 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 4 of 71 1 B. DMC’s Policies and Procedures for Deaf Patients and Companions 2 With the stated purpose of accommodating sensory impaired individuals and complying 3 with Section 504 of the Rehabilitation Act and the ADA, DMC initiated a formal Auxiliary Aids 4 and Services Policy in November 2015, which was reviewed in April 2016 and approved on May 5 25, 2016 (“the AAS Policy”). (DX-A at 2898, 2912.)5 DMC rolled out the AAS Policy in June 6 2016 in a training to all existing DMC employees. (DX-B; DX-C; Vol. 2, 270:17–272:24.) Also 7 in June 2016, Janice Halloran, a nursing support services manager at DMC, was assigned by 8 DMC’s CEO to be the hospital’s ADA coordinator. (Vol. 2, 267:4–12.) As ADA coordinator, 9 Ms. Halloran was tasked with reviewing the AAS Policy and ensuring that it was followed. (Vol. 10 2, 268:4–11.) In taking on this role, Ms. Halloran participated in conference calls with ADA 11 coordinators at other facilities to discuss what those other facilities were doing and how their 12 process was working for them. (Vol. 2, 268:12–21.) There was no evidence presented at trial in 13 this case to show that there had been an ADA coordinator at DMC before Ms. Halloran took on 14 that role. At trial, Janelle Moland, a social worker for DMC for over seven years, was asked if 15 she knew who the ADA coordinator was in October 2015 (when Mr. Bax first visited DMC), and 16 she testified that her understanding was that the position had been Ms. Halloran, but that she did 17 not remember when Ms. Halloran was given that position. (Vol. 2, 317:20–318:3; 326:5–8.) 18 Presumably, Ms. Halloran would have known whether she had a predecessor, especially since she 19 had been working for DMC for thirty years. Yet Ms. Halloran testified that she did not know 20 who she replaced when she became the ADA coordinator in June 2016, and she did not know 21 ///// 22 ///// 23 24 5 The parties did not agree upon any joint exhibits at trial. Plaintiffs’ exhibits are identified numerically and are cited herein as PX-1, PX-2, etc. Defendant’s exhibits are identified 25 alphabetically and are cited herein as DX-A, DX-B, etc. The court notes, however, that because 26 plaintiffs’ first exhibit was unfortunately divided by counsel into more than sixty subparts, with each subpart identified alphabetically, the subpart exhibits are cited accordingly herein as PX-1A, 27 PX-1B, . . . PX-1AA, PX-1AB, . . . PX-1BA, PX-1BB, . . . PX-1CA, PX-1CB, etc. Specific page numbers are cited using the last digits of the Bates number, omitting the party’s identifier and 28 leading zeros. 4 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 5 of 71 1 who the ADA coordinator at DMC was in October 2015.6 (Vol. 2, 300:2–6.) This testimony 2 suggests to the undersigned that there in fact was no ADA coordinator at DMC before Ms. 3 Halloran assumed that role in June 2016. 4 1. DMC’s Practices in Late 2015 5 There was no evidence presented at trial that any formal policy or corresponding formal 6 trainings for staff on auxiliary aids and services existed at DMC before implementation of the 7 AAS Policy in June 2016. Neither side presented any written policy or documentation of 8 trainings provided to staff prior to June 2016. The only evidence presented at trial that any such 9 policy existed in 2015 came from Ms. Halloran’s testimony that the old policy had the same “sum 10 and substance” as the AAS Policy but the forms used under the AAS Policy, such as an auxiliary 11 aids and services assessment tool, did not exist in 2015. (Vol. 2, 304:14–24; 306:18–21.) Several 12 witnesses also testified regarding their experience providing services to deaf patients and 13 companions at DMC before June 2016, in which they assessed the patient’s ability to 14 communicate and then used various methods to communicate, including exchanging written 15 notes, using a live interpreter through video remote interpreting (“VRI”) services,7 and using an 16 in-person ASL interpreter provided by an outside vendor that contracted with DMC. (Vol. 1, 17 113:19–20; 125:7–9; 126:1–12; Vol. 2, 289:16–290:8.) 18 To provide remote ASL interpreters through VRI, DMC contracted with Cyracom, an 19 interpreting service that also provided interpretation over the phone in other languages, such as 20 Spanish. (Vol. 1, 146:16–23; DX-AO.) To provide live in-person ASL interpreters, DMC 21 6 Although not particularly significant to resolution of any of the issues before the court in this 22 case, the court does observe that it found Ms. Halloran’s testimony in this regard to be incredible. In short, it is difficult, if not impossible, to believe that Ms. Halloran had worked at DMC for 23 thirty years but did not know who she had replaced when she became the ADA coordinator in June 2016. 24 7 A VRI system is an interpreting service that uses “[r]eal-time, full-motion video and audio over 25 a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers 26 high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication,” and that “display the interpreter’s face, arms, hands, and fingers, and 27 the participating individual’s face, arms, hands, and fingers, regardless of his or her body position.” 28 C.F.R. § 36.303(f). Using VRI, a live ASL interpreter is located remotely and 28 communicates with the doctor and patient through a portable screen located in the hospital. 5 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 6 of 71 1 contracted with NorCal Services for the Deaf and Hard of Hearing (“NorCal”). (DX-AP.) 2 NorCal provided a “Communication Services Request Form” for DMC to complete and fax to 3 NorCal to request its interpreter services. (PX-1B; Vol. 1, 144:3–10.) 4 In terms of staff training before June 2016, Ms. Halloran testified that she was trained on 5 operating the VRI laptops and that the VRI successfully connected to an ASL interpreter and 6 worked appropriately during the training. (Vol. 2, 295:18–296:6.) Ms. Moland testified that she 7 was trained to affirmatively take steps to get an interpreter for a patient once that patient was 8 identified as primarily speaking another language. (Vol. 2, 328:7–11.) Anna Chalko, a nurse 9 who was working at DMC in late 2015, testified that when she first started working at DMC, she 10 was trained on how to communicate in situations where there might be language barriers, and 11 though the training was not specific to deaf or hard of hearing patients, she learned in that training 12 that DMC has sign language interpreters to use for deaf patients. (Vol. 3, 390:14–391:4.) Ms. 13 Chalko also testified that based on that training, she knew that a deaf patient was entitled to an 14 interpreter, but it was her impression and recollection that in 2015 and prior thereto, the patient 15 needed to affirmatively ask for an interpreter. (Vol. 3, 392:8–17; 392:2–7.) However, Lonnie 16 Vaughn, a diabetes education and care specialist who has been working at DMC for over thirty 17 years, testified that she would absolutely get an interpreter if she identified that a patient needed 18 one, even if the patient did not specifically request one. (Vol. 3, 335:20–25; 341:21–342:9.) 19 There was also inconsistent testimony at trial regarding who at DMC had authority to 20 request interpreters from NorCal in 2015. LaDonna Martinez, the director of patient services at 21 DMC, testified that she signed NorCal request forms when she was a shift manager in late 2015 22 because it was her belief that only shift managers were allowed to request interpreter services. 23 (Vol. 2, 249:16–17; 251:5–252:3.) However, Ms. Vaughn testified that she had called NorCal to 24 request an interpreter and understood that any staff member at DMC could contact NorCal to 25 request interpreter services. (Vol. 3, 341:17–342:9.) Likewise, Ms. Halloran testified that when 26 she needed to communicate with deaf mothers or fathers as a nurse in the neonatal unit at DMC, 27 she would request an interpreter by faxing NorCal a request form herself, or she would ask the 28 social workers at DMC to submit a request to NorCal. (Vol. 2, 289:16–290:8.) Andrea 6 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 7 of 71 1 Riemersma, a nurse at DMC for about eighteen years, testified that she interacted with deaf 2 patients or deaf companions a few times and had contacted the social workers at DMC to assist 3 with obtaining a live ASL interpreter on those occasions. (Vol. 1, 112:10–24.) The court also 4 notes that one of the faxed NorCal request forms in evidence from October 2015 has Ms. 5 Chalko’s signature, and she was not a shift manager. (PX-1B at 1162.) 6 2. DMC’s Practices Beginning in June 2016 under the AAS Policy 7 The AAS Policy states that DMC “personnel will provide qualified sign-language 8 interpreters and/or other appropriate auxiliary aids and services where necessary to ensure 9 effective communication with individuals with disabilities,” including patients and companions. 10 (DX-A at 2900.) Under the AAS Policy, DMC “personnel will inform patients with disabilities 11 . . . of the availability, at no cost to them, of qualified interpreters and/or other auxiliary aids, and 12 will provide each service promptly upon request.” (Id.) The AAS Policy defines “personnel” 13 broadly to include all “employees, independent contractors, and volunteers involved in the 14 delivery of healthcare services” at DMC. (Id. at 2899.) The AAS Policy further provides 15 guidelines for the initial intake of patients, the provision of interpreting services, addressing the 16 needs of deaf companions, the maintenance of a log pertaining to requests for auxiliary aids or 17 services, and a grievance procedure for dissatisfied patients. (Id. at 2901–2911.) 18 The AAS Policy states that DMC will provide a qualified sign language interpreter and/or 19 other appropriate auxiliary aids and services in all circumstances where necessary for effective 20 communication as required by the ADA” and outlines a non-exhaustive list of such 21 circumstances, including: 22 (a) determination of a patient’s medical history or description of ailment or injury; 23 (b) provision of patient rights, informed consent or permission 24 for treatment; 25 ... 26 (d) diagnosis or prognosis of an ailment or injury; 27 (e) explanation of procedures, tests, treatment, treatment options or surgery; 28 7 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 8 of 71 1 (f) explanation of medications prescribed including dosage as well as how and when the medication is to be taken and any 2 possible side effects; 3 (g) explanation regarding follow-up treatment, therapy, test results or recovery; 4 (h) discharge instructions; . . . . 5 6 (Id. at 2903.) According to the AAS Policy, “[t]he decision of the method to be used for 7 communication requires the input of the patient[s] and their choice must be given weight.” (DX- 8 A at 2898; Vol. 1, 137:13–138:2.) DMC staff implement this requirement by using an interactive 9 auxiliary aids assessment tool upon initial intake of patients, which is a form titled “Services for 10 Deaf and Hard of Hearing Persons” that lists the available auxiliary aids and services and prompts 11 patients and companions to identify their preferred means to communicate effectively by circling 12 “yes” or “no” next to each aid or service. (DX-A at 2901–2902; 2913–15; Vol. 1, 138:24– 13 139:15.) On a section of that assessment form titled “Waiver,” patients and companions can 14 decline DMC’s offer to provide a qualified sign language interpreter free of charge to them and 15 can indicate that they prefer a different method of communication or a specific interpreter service. 16 (DX-A at 2915.) 17 As noted above, in June 2016, all then-existing DMC employees received an initial 18 training on the AAS Policy, which included a presentation of slides that describe the DMC’s 19 requirements and responsibilities. (DX-B; DX-C; Vol. 2, 270:17–272:24.) For DMC employees 20 hired after the initial rollout, training on the AAS Policy is included as part of DMC’s new hire 21 orientation. (Vol. 2, 272:13–20.) In addition, all DMC employees receive annual reorientation 22 using an online learning module tool, and completion of the reorientation packet, which includes 23 slides on the auxiliary aids policy, is mandatory for all staff. (DX-I; DX-J; Vol. 2, 249:23–250:3; 24 272:21–273:10; 319:10-21.) As the ADA coordinator, Ms. Halloran created a “cheat sheet” of 25 talking points related to providing auxiliary aids and used that as an additional teaching tool in 26 staff huddles at the beginning of each shift to reinforce the AAS Policy’s requirements. (Vol. 2, 27 275:11–276:3; DX-E.) 28 ///// 8 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 9 of 71 1 With regard to auxiliary aids and services, all of these training materials emphasize that 2 staff are required to assess the needs of patients and companions, ensure that the “Services for the 3 Deaf and Hard of Hearing Persons” form is completed, ensure that the completed form becomes 4 part of the patient’s medical record, and ensure that the completed form is faxed to the ADA 5 coordinator. (See DX-C at 2924, 2925, 2927, 2930; DX-B at 2789, 2799–2801; DX-E at 2777; 6 DX-I at 2849; DX-J at 2990.) Those trainings outline the ADA coordinator’s responsibilities, 7 including “help[ing] to locate auxiliary aids and services . . . as needs arise,” and “maintain[ing] a 8 log of all ADA-related requests,” and clarify that after staff notify the ADA coordinator that there 9 is a need for an auxiliary aid, “[t]he ADA coordinator will, in turn, work to help locate the 10 specified aid.” (DX-C at 2921, 2925.) Notably missing from these training materials are any 11 directives or instructions on what steps the DMC staff members should take to obtain a qualified 12 sign language interpreter themselves—either by utilizing VRI services or by submitting a request 13 for an in-person ASL interpreter from a third-party interpretation service provider. Such 14 instructions are missing despite the fact that the AAS Policy itself states that “[i]mmediately upon 15 completing the assessment and [the Services for the Deaf and Hard of Hearing Persons form] 16 requirements and determining that a person scheduled to be a patient is a person who is deaf, 17 [DMC] personnel involved with the patient will promptly schedule or otherwise promptly call for 18 a qualified interpreter to be provided.” (DX-A at 2902.) 19 In addition to these training materials, Ms. Halloran also created a document titled 20 “Sensory Impairment Tool Kit Hearing/Visually,” which she placed in each nursing unit on every 21 floor to make it easier for staff to access information about available auxiliary aids in one place. 22 (Vol. 2, 278:23–279:23; DX-G.) That tool kit includes a blank copy of the Services for Deaf and 23 Hard of Hearing Persons assessment form, a health care communication board, a step-by-step 24 guideline for bedside nurses to assess patients with sensory impairments, and a list of auxiliary 25 aids and services with contact and location information. (DX-G; Vol. 2, 283:8–25.) In that kit, 26 the following access information is provided with regard to sign language interpreter services: 27 Qualified Sign Interpreters may be reached at: • 4 U I SIGN – Fred Hedgewood (Use first) [phone number] 28 • NorCal center on Deafness 9 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 10 of 71 1 o Complete the Interpreter Request form, the form must be complete and legible. 2 o Fax completed form to [phone number] 3 VRI – video conference • VRE [sic] computer is available in the House Supervisors 4 office. o Monday – Friday contact Janice Halloran ext 3913 5 o After hours contact the House Supervisor at ext 3791 • Coming soon to Each unit 6 o Ipads located in each unit o Each Ipad has instruction for use on the screen 7 8 (DX-G at 2609.)8 However, similar to the training materials discussed above, the tool kit did not 9 specify who has authority to contact 4 U I SIGN and NorCal, whether any staff member is 10 authorized to submit requests for interpreters from those providers, or whether any such request 11 must come from a specific staff member, such as the ADA coordinator. Moreover, despite noting 12 that the NorCal Interpreter Request form must be completed, the tool kit neither attaches a copy 13 of that request form nor provides information regarding where a staff member could locate that 14 form. Indeed, there are no instructions in the detailed step-by-step guidelines on the next page of 15 the tool kit that direct staff members to call 4 U I Sign or complete and fax a request form to 16 NorCal on their own. Nevertheless, Ms. Halloran testified that under the AAS Policy, anyone at 17 DMC could call for a live interpreter. (Vol. 2, 290:22–291:8.) 18 As to VRI services, Ms. Halloran explained that when she prepared and disseminated this 19 tool kit in June 2016, the VRI equipment consisted of a laptop computer, but they had also been 20 trying out iPads with the VRI pre-loaded and anticipated distributing those iPads to each unit, 21 which they did shortly after June 2016. (Vol. 2, 283 at 3–7; Vol. 1, 146:24–147:4.) VRI services 22 are currently provided using the iPads. (Vol. 1, 136: 15–24; Vol. 2, 296:11–13.) Ms. Halloran 23 also testified that one of the ways DMC is working to further improve its care for deaf patients is 24 ///// 25 26 8 In February 2016, DMC contracted with a new local company called “4 U I Sign” to provide ASL interpreter services. (See DX-AQ; Vol. 2, 280:4–23, 290:9–21.) Ms. Halloran testified that 27 the reason she stated “Use first” next to 4 U I Sign is because that company used a less cumbersome process of requesting an interpreter by simply making a phone call, and it has a 28 much quicker response time. (Vol. 2, 280:4–15.) 10 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 11 of 71 1 by using iPads that have much larger screens, so the patient can see a larger image of the 2 interpreter. (Vol. 2, 297:13–20.) 3 C. Mr. Bax’s Hospital Visits to DMC in October and November 2015 4 Mr. Bax received in-patient medical care at DMC beginning late in the evening on 5 October 13 through October 27, 2015, and again on November 12 through November 18, 2015, to 6 treat his diabetes and a wound infection on his foot, which required three separate surgeries and 7 eventually led to the amputation of his fifth toe (commonly referred to as the pinky toe). 8 At trial, the parties presented incomplete, contradictory, and inconsistent accounts of what 9 happened during Mr. Bax’s hospitalizations with regard to the provision of auxiliary aids and 10 services for him as a patient and for Mrs. Bax as his companion. In finding the facts as follows, 11 the court has considered the reliability, credibility, and truthfulness of the witnesses who testified 12 at trial (including plaintiffs, DMC staff who provided care for Mr. Bax during his visits, and the 13 surgeon who operated on Mr. Bax’s foot), and the extent to which their testimony is corroborated 14 by documentary evidence admitted at trial (including Mr. Bax’s medical records, NorCal 15 interpreter request forms, and NorCal invoices). 16 1. Mr. Bax’s October 2015 Hospitalization 17 In mid-October 2015, while visiting California for the first time, Mr. Bax was 18 experiencing pain and numbness in his foot, was limping and had difficulty walking. (Vol. 1, 19 27:10–28:5.) On the evening of October 13, 2015, Mrs. Bax, his then-girlfriend, saw him limping 20 with pained expressions and became very worried, so she told him that they needed to go the 21 emergency room. (Id.) Mrs. Bax testified that she did not know that Mr. Bax had a bad staph 22 infection in his toe when they first went to the emergency room at DMC; Mr. Bax had told her 23 that his toe was dirty and infected, though the situation was awkward because they were just 24 dating at the time. (Vol. 1, 102:18–25.) 25 a. October 13: Emergency Department Evaluation 26 Mr. Bax’s medical record shows that he was seen by the triage nurse at 8:54 p.m. and by 27 the emergency department physician at 10:48 p.m. on October 13, 2015. (DX-N at 1459.) Mr. 28 Bax signed a consent form acknowledging receipt of DMC’s “Notice of Privacy Practices” and 11 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 12 of 71 1 “Conditions of Service” at 11:29 p.m. (PX-1C at 1305.) He also signed a form indicating that he 2 had received a notice about his Medicare rights and understood those rights. (Id. at 1326.) 3 According to Mr. Bax, when he arrived at DMC, he gestured that he cannot hear and 4 wrote “ADA interpreter” on a note to DMC staff, who responded by putting up a finger gesturing 5 for Mr. Bax to wait and that they would take care of it. (Vol. 1, 28:6–14.) Mrs. Bax also testified 6 that she made the gesture of writing and patted her ear to request an interpreter, but the nurse just 7 sat there. (Vol. 1, 79:15–19.) When his name was called, the Baxes were taken to a room where 8 staff looked at Mr. Bax’s foot. (Vol. 1, 28:15–16.) Mr. Bax testified that neither he nor Mrs. Bax 9 had any communication with the staff because there was no interpreter, and they became very 10 emotional and frustrated. (Vol. 1, 28:15–24.) Mr. Bax hollered “where’s the interpreter,” and 11 was again told by staff using the one finger gesture to wait. (Vol. 1, 28:24–29:1.) The Baxes 12 waited for at least an hour before Mr. Bax was discharged from the emergency department, 13 admitted to the hospital, and moved to a patient room on another floor. (Vol. 1, 29:2–4; see also 14 DX-N at 1462 (noting Mr. Bax’s discharge from DMC’s emergency department and admission to 15 DMC’s “1 Medical” hospital shortly after 2 a.m. on October 14, 2015); PX-1E at 1921). 16 In contrast to Mr. Bax’s testimony that he was unable to have any communication with 17 staff in the emergency department, his medical record includes an “Emergency/Urgent Care” 18 record, which states his chief complaint and describes the history of his complaint in 19 considerable detail as follows: 20 The patient presented with skin infection. The onset was 3 days ago. The course/duration of symptoms is worsening. Location: left 21 foot. The character of symptoms is redness, ulceration. Risk factors consist of history of borderline diabetes. Therapy today: 22 prescription medications including unknown antibiotic. Associated symptoms: hyperglycemia. Patient was seen at St. Francis hospital 23 in Hayward 3 days ago and prescribed antibiotics, but he does not remember the name of the medication. Symptoms have become 24 worse since then. Patient’s blood sugar was 468 tonight. Patient has elevated blood sugar when he has an infection, the last time he 25 had an infection his blood sugar was elevated for 2 weeks. 26 (DX-N at 1459.) That record also states that the patient is deaf and that he provided that history 27 ///// 28 ///// 12 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 13 of 71 1 through written notes. (Id.)9 2 It is undisputed that DMC did not provide an interpreter for the Baxes on October 13, 3 2015. There was no evidence submitted at trial—whether it be a NorCal request form, a NorCal 4 invoice, a call record from Cyracom, a note in his medical record, or witness testimony—to 5 suggest that DMC’s emergency department staff requested interpreter services for Mr. Bax in the 6 late evening of October 13, 2015. There is also no notation in Mr. Bax’s medical record 7 documenting that he or Mrs. Bax had requested an ASL interpreter at any point during the few 8 hours that he was in the emergency department that night. 9 The Baxes’ testimony is the only evidence before the court to suggest that the Baxes had 10 requested an interpreter while in the emergency department on October 13, 2015. The court not 11 only finds the Baxes to be poor historians with contradicting and inconsistent accounts of what 12 happened during their hospitalizations, the court also questions the credibility of the Baxes as 13 witnesses for reasons described herein. As discussed below, during some days of his 14 hospitalization, Mr. Bax explicitly refused to sign consent forms without an interpreter and 15 refused to proceed with surgery without an interpreter—all of which is well documented by DMC 16 staff and physicians in Mr. Bax’s medical record. Yet, Mr. Bax signed various consent forms on 17 October 13, 2015, including the notice regarding his Medicare rights, which is the same form that 18 he refused to sign without an interpreter at the end of his October hospitalization. That later 19 refusal shows that Mr. Bax not only knew how to request an interpreter, he also demonstrated his 20 willingness to refuse to sign the same Medicare notice if an interpreter was not provided. In the 21 court’s view, because Mr. Bax signed the Medicare notice on October 13, 2015, rather than 22 refusing to sign it without an interpreter as he did a week later, the reasonable inference to be 23 drawn from that evidence is that Mr. Bax did not request an interpreter on October 13, 2015. 24 9 Included in Mr. Bax’s medical record are copies of some written notes, which reflect that he 25 answered written questions and provided staff with fairly detailed information, including the 26 name of his primary care doctor, that he was visiting from Missouri, that it was his first time in California, that he came to attend his girlfriend’s cousin’s wedding, that he first noticed his foot 27 getting red on Sunday morning, that he went to urgent care on Sunday and was told he had a germ infection in his foot and was given antibiotics, and that he had been diagnosed with borderline 28 diabetes several years earlier. (DX-AN at 1318–21; Vol. 1, 54:24–18.) 13 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 14 of 71 1 In addition, based on the documented history of Mr. Bax’s complaint in the medical 2 record, which was obtained through written notes, the court finds that Mr. Bax was able to 3 communicate with the emergency department staff despite not having an ASL interpreter. 4 Although Mr. Bax testified that there are significant differences between ASL and English 5 leading to many misunderstandings, and that he was “unable to write in English a good enough 6 sentence for their comprehension of what [he] was going through” and had difficulty 7 understanding the staff’s responses, he did not testify that he had informed emergency department 8 staff of these difficulties and limitations. (Vol. 1, 29:8–13.) Mr. Bax did not present any other 9 evidence to suggest that while he was in the emergency department on October 13, 2015, his 10 communication with DMC staff via written notes was ineffective. 11 b. October 14: Admission, Diabetes Diagnosis, and Patient Education 12 Mr. Bax was admitted to the DMC hospital in the early hours of October 14, 2015 after 13 being discharged from the emergency department. (DX-N at 1462.) Medical records reflect that 14 between midnight and 2:30 a.m., a physician evaluated Mr. Bax and determined that he had 15 uncontrolled diabetes and needed a podiatry consult to assess his left foot, which showed 16 erythema (redness of the skin) and had dry and crusted blood between the fourth and fifth toes. 17 (DX-O at 1282–1283.) That physician noted: “I discussed this plan with patient and also 18 patient’s wife who is currently at bedside, she is also deaf. Most of the information has been 19 written now.” (Id. at 1283.) Mrs. Bax testified that she did not know that Mr. Bax had diabetes, 20 but it was not stressful or concerning for her to learn that Mr. Bax was diabetic. (Vol. 1, 101:18– 21 102:9.) 22 Later that morning, at approximately 8:14 a.m., a nurse completed admission 23 documentation for Mr. Bax based on information he had provided by writing answers to questions 24 on paper. (DX-W at 1486.) Around 8:18 a.m., Mr. Bax received patient education on safety, 25 medication, diabetes, and infection prevention; the teaching method for that education was “using 26 point picture board and writing down information for patient,” along with demonstration and 27 printed materials. (PX-1J at 2515.) The patient education record notes that Mr. Bax verbalized 28 his understanding of the education. (Id.) 14 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 15 of 71 1 It is undisputed that DMC did not provide an interpreter for the Baxes on October 14, 2 2015. Mr. Bax testified that he requested an interpreter every single day during his 3 hospitalization from October 14 through October 27, 2015 because “writing is not enough 4 explanation for [him] to understand clearly since [he has] limited proficiency in English.” (Vol. 5 1, 32:24–33:4.) However, at his deposition, Mr. Bax testified that he asked for a live interpreter 6 “almost every day.” (Vol. 1, 57:3–5.) There are no notations in Mr. Bax’s medical record 7 documenting that he or Mrs. Bax requested an ASL interpreter at any point on October 14, 2015. 8 There is also no evidence in the medical record that Mr. Bax informed DMC that he was not able 9 to fully understand written notes because he had limited proficiency in English, nor did Mr. Bax 10 testify that he had informed DMC of this limitation. Whereas, the medical record does state that 11 Mr. Bax had verbalized his understanding of the patient education and demonstrations. (PX-1J at 12 2515.) 13 Accordingly, in light of that patient education record and Mr. Bax’s inconsistent 14 testimony regarding how often he requested interpreters—“almost every day” (deposition 15 testimony) or “every single day” (trial testimony)—the court finds by a preponderance of the 16 evidence that Mr. Bax did not request an interpreter on October 14, 2015. In addition, Mr. Bax 17 did not present any evidence at trial suggesting that his communication with DMC staff via 18 written notes on October 14, 2015 was ineffective, or that he had informed DMC staff that he felt 19 communicating using written notes was ineffective for him. 20 c. October 15: Patient Education, Mr. Bax Requested an Interpreter to Translate Consent Form for Surgery 21 22 At 2:26 a.m. on October 15, 2015, a nurse assessed Mr. Bax’s foot, noting that “[p]atient 23 has a black necrotic area underneath foot towards toe area,” and though not clear what method of 24 communication was used, the nurse also noted that “[p]atient states that foot is getting better as 25 pink inflamed area was past patient’s knee per patient.” (PX-1K at 1530.) 26 Mr. Bax received additional patient education at various times throughout the day on 27 October 15, 2015, and the patient education record states that he was taught by staff “using 28 picture board and writing down information for patient,” and that Mr. Bax “communicated 15 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 16 of 71 1 through writing information and questions down as well.” (PX-1L at 2512–14.) There is no 2 evidence that Mr. Bax had requested an interpreter for these teachings, or that he informed DMC 3 nursing staff that he was unable to understand the patient education. To the contrary, the nursing 4 notes in the patient education record suggest that Mr. Bax was engaged, wrote down information, 5 and asked questions. Accordingly, Mr. Bax has not shown by a preponderance of the evidence 6 that the communication method used for his patient education on this day was ineffective for him. 7 At 6:58 p.m., a nurse entered a nursing note in Mr. Bax’s medical record noting that 8 “[patient] does not want to sign consent without interpreter[;] interpreter will be contacted.” (PX- 9 1K at 1530.) The nurse did not specify which consent form she referred to in this note. The 10 reference appears to be to a surgical consent form because Mr. Bax’s first surgery was scheduled 11 for the following day, October 16, 2015, and he subsequently signed that consent form for that 12 surgery. (See PX-1C at 1322–23.). In addition, there is a NorCal request form in evidence 13 showing that DMC signed a request form on October 15, 2015 to request an ASL interpreter 14 starting at 7:30 a.m. on October 16, 2015 for Mr. Bax, and the specific reason for the appointment 15 was stated as “sign language interpreter for surgery.” (PX-1B at 1163.) The shift manager who 16 signed the request form, LaDonna Martinez, testified that the interpreter was requested for 17 October 16, 2015 “for surgical consent.” (Vol. 2, 251:9–25.) The court therefore finds by a 18 preponderance of the evidence that on the evening of October 15, 2015, Mr. Bax requested that an 19 interpreter be provided before he would consent to the surgery scheduled for the following day, 20 and in response, DMC requested an ASL interpreter from NorCal for that purpose. 21 d. October 16: First Debridement Surgery, In-Person Interpreter Provided 22 At 7:30 a.m. on October 16, 2015, Mr. Bax received additional patient education, and the 23 patient education record states that Mr. Bax asked questions and was eager and willing to learn, 24 and that he “is able to read and write.” (PX-1L at 2512.) 25 Later that morning, Mr. Bax underwent a debridement surgical procedure, in which 26 necrotic (dead) tissue was removed. (Vol. 242: 3–14; PX-1O.) In addition to the NorCal request 27 form showing that DMC requested an ASL interpreter for Mr. Bax’s debridement surgery (PX-1B 28 at 1163), there is a NorCal invoice billing DMC for five hours of interpreting services provided 16 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 17 of 71 1 on October 16, 2015, from 8:30 a.m. through 1:30 p.m. (DX-AR at 1271.) With the requested 2 interpreter having been provided, Mr. Bax signed the consent to surgery form for the “left foot 3 debridement with possible toe #5 amputation” procedure to be performed by Dr. Wolterbeek,10 4 although the translator attestation section of that form was left blank. (PX-1C at 1322–23.) 5 The court also heard trial testimony from Dr. Wolterbeek regarding whether he 6 communicated with Mr. Bax using an interpreter for the first debridement surgery, but that 7 testimony was confusing at best and not credible at worst. Dr. Wolterbeek testified that he had no 8 specific recollection of his interactions with Mr. Bax and that he relied on his operative reports 9 and his notes in the medical record to answer the questions posed to him at trial, stating that “all 10 [he] know[s] is what is in the written chart,” but nevertheless, he “somehow remember[s] in [his] 11 head not having a translator for the first surgery.” (Vol. 2, 201:12–24.) Dr. Wolterbeek did 12 remember that he communicated with Mr. Bax by typing on an iPad and handing the iPad back 13 and forth, and through that method, he told Mr. Bax that his foot had a big infection, his pinky 14 and fourth lateral toe were in jeopardy, and he needed surgery. (Vol. 2, 213:2–21.) Dr. 15 Wolterbeek testified that he told Mr. Bax that he would do everything he could to save those toes, 16 consistent with his operative report, which states: “I told [him] I will do the best I can to save the 17 lateral toe, but #5 and #4 toe are little bit dusky going in the surgery today.” (Vol. 2, 213:21; PX- 18 1O at 1999.) Dr. Wolterbeek could not remember if Mrs. Bax was present in the room at the 19 time, but he knew that Mrs. Bax was also deaf and did not recall using the iPad to type notes with 20 her. (Vol. 2, 213:22–214:5.) 21 Adding to the confusion, Dr. Wolterbeek testified that this interaction with Mr. Bax was 22 the first and only time he has used this form of communication—passing typed notes back and 23 forth on an iPad—in the hospital setting to communicate with a patient. (Vol. 2, 214:19–215:18.) 24 Dr. Wolterbeek testified that in general, talking with a patient about surgery is important, and he 25 would ideally want a translator to communicate with a patient in that patient’s primary language, 26 “but if there is urgency in the matter, [he] would not postpone things.” (Vol. 2, 183:11–16.) Dr. 27 10 Dr. Wolterbeek is not an employee of DMC; he is a self-employed foot surgeon, specializing 28 in diabetic foot salvage, and he has privileges at DMC. (Vol. 2, 172:2–10; 241:15–19.) 17 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 18 of 71 1 Wolterbeek provided as an example that “an acute diabetic foot infection may not necessarily be 2 able to wait and [he] must operate in a reasonable amount of time.” (Vol. 2, 183:17–22.) The 3 doctor testified that Mr. Bax’s first surgery was to “try[] to put the fire down,” and he would not 4 necessarily want to wait for an interpreter for that type of surgery. (Vol. 2, 216 at 5–10.) But 5 when asked at trial if he had wanted an interpreter to communicate with Mr. Bax, Dr. Wolterbeek 6 testified that he did not feel an interpreter was necessary—not because there was a sense of 7 urgency or rush to operate—but because they were doing fine communicating back and forth. 8 (Vol. 2, 189:4–11.) According to Dr. Wolterbeek, Mr. Bax never indicated directly to him that he 9 wanted an interpreter. (Vol. 2, 189:22–25.) When prompted by the court for clarification in this 10 regard, Dr. Wolterbeek clarified that although he remembered that Mr. Bax had wanted an 11 interpreter for the second surgery, he was not aware that Mr. Bax had requested an interpreter for 12 the first debridement surgery. (Vol. 2, 189:13–190:12.) 13 Even though the translator section of the consent form for the first surgery was left blank 14 and Dr. Wolterbeek recalled not having an interpreter present for that surgery, in light of Mr. 15 Bax’s initial refusal to sign the consent form without an interpreter coupled with his subsequent 16 signing of the form, and the corresponding NorCal request form and invoice billing DMC for five 17 hours of interpreter services on October 16, 2015, the court finds that the evidence presented at 18 trial established that DMC did in fact provide an ASL interpreter for Mr. Bax in connection with 19 his first debridement surgery. 20 e. October 17: Post-Operative Discussion with Dr. Wolterbeek, Patient Education, and Interpreter Requested by DMC for Diabetes Teaching 21 22 Dr. Wolterbeek entered a physician progress note in Mr. Bax’s medical record at 23 2:35 p.m. on October 17, 2015, noting: “No complaints. We discuss the situation with especially 24 the 5th toe. (typed back and forth on iPad).” (PX-1O at 1978.) That physician progress note also 25 states that the assessment and plan was for Mr. Bax to return to the operating room on October 26 21, 2015 for a second surgery “for closure and amputation of toes as needed.” (PX-1Q at 1980.) 27 Dr. Wolterbeek testified that he told Mr. Bax how bad the situation was with his toe, that Mr. Bax 28 was definitely at risk of losing his toe, and that he would try to save it. (Vol. 2, 218:18–219:12.) 18 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 19 of 71 1 Dr. Wolterbeek testified that post-operative discussions with patients are important, but he did not 2 feel an interpreter was required for this post-operative discussion because Mr. Bax was speaking 3 English on the iPad and he thought Mr. Bax was understanding what was being said. (Vol. 2, 4 224:24–225:5.) Dr. Wolterbeek further testified that he assumes that when he writes the English 5 language to a patient, and the patient writes back in English, that the patient understood his 6 English. (Vol. 2, 230:5–12.) 7 Mr. Bax had also received patient education around 8:00 a.m. on Saturday, October 17, 8 2015, and both Mr. and Mrs. Bax were taught patient education around 10:15 p.m. that evening. 9 (PX-1Y at 2510.) The patient education record states that the teaching method was 10 “communicates by writing,” and notes that Mr. Bax “return[ed] demonstration and instruction 11 correctly.” (Id.) In the early afternoon that day, Mr. Bax also met Lonnie Vaughn, a diabetes 12 education and care specialist who teaches patients and their families about caring for patients with 13 diabetes. (Vol. 3, 335:24–25, 358:17–24; DX-AA at 1529.) Ms. Vaughn entered a nursing note 14 in Mr. Bax’s medical record stating that Mr. Bax and his significant other, Mrs. Bax, were both 15 deaf and new to diabetes management and care. (Vol. 3, 335:24–25; DX-AA at 1529.) Ms. 16 Vaughn testified that she assessed Mr. Bax’s communication abilities, and for the type of hands- 17 on teaching that she does with patients, she believed a sign language interpreter was the only 18 effective way for them to communicate with each other. (Vol. 3, 336:7–19, 337:12–16.) In 19 addition, Ms. Vaughn testified that she wrote on a clipboard to introduce herself to the Baxes, and 20 Mrs. Bax used the clipboard in response to indicate that Mr. Bax needed an interpreter. (Vol. 3, 21 324:6–15.) Ms. Vaughn also testified, consistent with her nursing note, that she called NorCal 22 and left a message to request an interpreter, and she faxed a request form to NorCal requesting an 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 19 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 20 of 71 1 interpreter for Mr. Bax’s diabetes education scheduled for a few days later, on Monday, October 2 19, 2015. (Vol. 3, 335:24–25; DX-AA at 1529.)11 3 Other than Mr. Bax’s testimony at trial that he requested an interpreter “every single day,” 4 which conflicted with his deposition testimony that he requested interpreters “almost every day,” 5 Mr. Bax did not present any evidence to show that he specifically requested an interpreter for his 6 patient education with nurses and his post-operative discussion with Dr. Wolterbeek on October 7 17, 2015. In addition, Mr. Bax did not present any evidence to suggest that his communication 8 with Dr. Wolterbeek by typing notes back and forth on the iPad or his written communications 9 with DMC nursing staff on October 17, 2015 were ineffective, or that he had informed DMC staff 10 that he felt communicating in this way was ineffective for him. With respect to his diabetes 11 education with Ms. Vaughn, however, the court finds both that Mrs. Bax requested an interpreter 12 on Mr. Bax’s behalf, and that Ms. Vaughn had submitted a request to NorCal for an interpreter 13 the following Monday, October 19, 2015 for that diabetes education. 14 f. October 18: Patient Education 15 In the morning and evening of October 18, 2015, Mr. and Mrs. Bax received patient 16 education on wound care, medication, hygiene, and fall safety, among other topics, and the 17 patient education record indicates that both asked questions and received printed materials. (PX- 18 1Y at 2508.) There is no indication in the medical record that either Mr. or Mrs. Bax informed 19 the nurses providing the patient education on this day that the communication method being used 20 for the education was ineffective or that they requested an interpreter for that education. In 21 contrast, when Ms. Vaughn was assessing Mr. Bax the day before, Mrs. Bax specifically 22 11 23 The court notes that neither party admitted into evidence a NorCal request form that would correspond to Ms. Vaughn’s nursing note (i.e., a request form signed and dated October 16, 2015 24 requesting that an interpreter be provided on October 19, 2015). There is, however, a NorCal invoice that purports to be for three hours of interpreter services provided for Mr. Bax on October 25 19, 2015 between “7–10pm” for “high blood sugar and bone infection of foot.” (PX-1AB at 26 1272; DX-AR at 1272.) Ms. Vaughn testified that because she requested an interpreter for October 19, 2015, and she indeed met with Mr. Bax and an interpreter on that day for diabetes 27 education, including discussing high blood sugar issues, she believed that this invoice corresponds to her request even though she did not request an interpreter for between 7–10 at 28 night. (Vol. 3, 360:16–362:23.) 20 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 21 of 71 1 requested an interpreter on his behalf for that diabetes teaching. Thus, the court finds by a 2 preponderance of the evidence that neither Mr. nor Mrs. Bax requested an interpreter for the 3 patient education provided on October 18, 2015, or for any other reason on that date. In addition, 4 Mr. Bax has not shown by a preponderance of the evidence that the communication method used 5 for his patient education on this day was ineffective for him. 6 g. October 19: Physical Therapy, MRSA Diagnosis 7 According to his medical records, Mr. Bax received an initial evaluation for physical 8 therapy in the afternoon on October 19, 2015. (PX-1AF at 2037.) The rehabilitative services 9 record documenting this evaluation noted that Mr. Bax is deaf and that the physical therapist used 10 “written communication” to communicate with him. (Id.) 11 A progress note in Mr. Bax’s medical record from hospitalist Dr. Upinder Rohewal notes 12 that on October 19, 2015, test results from a swab taken of Mr. Bax’s wound infection came back 13 positive for Methicillin-resistant Staphylococcus aureus (“MRSA”). (PX-1AA at 1290.) 14 According to the progress note, which states “[t]hrough sign language, the family is at the 15 bedside,” Dr. Rohewal met with the Baxes and communicated using an interpreter that day. (Id.) 16 The progress note was dictated by Dr. Rohewal at 1:18 p.m. in the afternoon, but it does not 17 specify when Dr. Rohewal met with the Baxes. (Id.) 18 At some point on the morning of October 19, 2015, Anna Chalko, one of the nurses who 19 had been caring for Mr. Bax and who had primarily communicated with him by writing notes 20 back and forth with pen and paper—a method she felt had been working “really well”—informed 21 Mr. Bax that he was MRSA positive through written notes. (Vol. 3, 385:9–387:9; DX-AA at 22 1528.) Through these notes, Ms. Chalko explained to Mr. Bax that his care would stay the same, 23 but more precautions would have to be taken so the MRSA would not get transported. (Vol. 3, 24 386:24–387:9.) According to Ms. Chalko, Mr. Bax did not indicate that he was dissatisfied with 25 communicating in writing; on the contrary, Ms. Chalko recalled that the communication was 26 “very pleasant” and that they communicated a lot because they went through a lot of computer 27 paper. (Vol. 3, 387:10–17.) Ms. Chalko testified that Mr. Bax’s demeanor changed when his 28 isolation Styrofoam lunch tray (a MRSA precaution) was delivered, and she received a written 21 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 22 of 71 1 note from Mr. Bax stating that he requested an interpreter, had been requesting one all day, and 2 was going to sue the “F***ing hospital.” (DX-AA at 1528.) As documented in her nursing note, 3 Ms. Chalko then explained to the Baxes the reason for the isolation meal tray, but Mr. Bax was 4 upset by the isolation and complained that he was being discriminated against. (Id.) Ms. Chalko 5 told Mr. Bax that she would work on getting an interpreter. (Vol. 3, 389:13–14.) Ms. Chalko 6 then signed a NorCal interpreter request form on October 19, 2015 to request an interpreter for 7 10:00 a.m. to noon on October 20, 2015 for “diabetes education / teaching of insulin.” (Vol. 3, 8 388:11–15; PX-1B at 1162.) 9 According to Ms. Chalko, when she left at the end of her shift that evening around 7:30 10 p.m., she remembers that there was an interpreter standing in the doorway to Mr. Bax’s hospital 11 room wearing a disposable yellow gown (another MRSA precaution) and communicating with 12 him from that distance, which was upsetting to Mr. Bax. (Vol. 3, 400:18–405:10.) Ms. Chalko 13 remembers that she was in Mr. Bax’s room giving patient reports for about thirty minutes, while 14 the interpreter was there, and that when she left for the night, the interpreter was still there. (Vol. 15 3, 403:11–405:10.) 16 The court finds that the evidence admitted at trial presents an incomplete picture with 17 regard to interpreters provided for Mr. Bax on October 19, 2015. Mr. Bax did not have an 18 interpreter during his afternoon physical therapy evaluation, though he did have an interpreter 19 when he met with Dr. Rohewal at some point before 1:18 p.m. when Dr. Rohewal dictated the 20 progress note for that day. Despite apparently having an interpreter while meeting with Dr. 21 Rohewal, Mr. Bax did not have an interpreter when Ms. Chalko exchanged written notes with 22 him about his MRSA diagnosis that morning or when Mr. Bax became upset about his isolation 23 lunch tray around midday. In addition, there is neither a NorCal request form nor a NorCal 24 invoice for interpreter services provided during any daytime hours on October 19, 2015 to 25 corroborate Dr. Rohewal’s progress note noting the use of an interpreter that day. There is a 26 NorCal invoice purporting to bill DMC for three hours of interpreting services provided between 27 7:00–10:00 p.m. that night, which would seem to corroborate Ms. Chalko’s testimony that she 28 saw an interpreter signing with Mr. Bax before she left at the end of her shift around 7:30 p.m. 22 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 23 of 71 1 But, because the description on that invoice states “high blood sugar and bone infection of foot,” 2 Ms. Vaughn testified that she believed that invoice corresponded to her diabetes teaching on 3 October 19, 2015. (See footnote 9, supra.) However, despite Ms. Vaughn’s testimony and her 4 October 16, 2015 nursing note indicating that she faxed a NorCal form requesting an interpreter 5 for Mr. Bax on October 19, 2015, there was no such request form admitted into evidence at trial, 6 and there was no record of Mr. Bax actually receiving diabetes teaching with Ms. Vaughn on 7 October 19, 2015. 8 Thus, the court finds that in his written communication with Ms. Chalko on October 19, 9 2015, Mr. Bax had requested an interpreter. Though not entirely clear from the evidence 10 presented at trial who from DMC requested an interpreter for that evening, it appears that an 11 interpreter was in fact provided later that night for Mr. Bax. 12 h. October 20: In-person Interpreter Provided for Diabetes Education and Group Meeting with Dr. Wolterbeek, Dr. Rohewal, and Nursing Staff 13 14 Ms. Vaughn testified that because Mr. Bax had questions about his care plan and 15 treatment, including the surgery scheduled for the next day, Ms. Vaughn arranged for an 16 interpreter to be present at a group meeting on October 20, 2015 at 10:00 a.m. with the Baxes and 17 “all the people that would be involved with planning his care and treatment and discharge.” (Vol. 18 3, 338:25–340:5.) This group meeting included Mr. Bax’s surgeon Dr. Wolterbeek, hospitalist 19 Dr. Rohewal, nurse manager LaDonna Martinez, nurse Andrea Riemersma, diabetes care 20 specialist Ms. Vaughn, a case manager, and a social worker. (Id.) Ms. Vaughn testified that 21 when she called the doctors to arrange this group meeting, she told them that an interpreter would 22 be at the meeting and she stressed the importance of using interpreters to communicate with Mr. 23 Bax. (Vol. 3, 352:25–353:20.) In a progress note dated October 20, 2015 at 11:49 a.m., Dr. 24 Wolterbeek documented the meeting, noting: “Translator here. No complaints. Long discussion 25 about the situation.” (PX-1AJ at 1968.) In that progress note, Dr. Wolterbeek also stated the 26 assessment/plan as: “Gangrene foot. Will [go] to surgery tomorrow for debridement with likely 27 toe 5 amputation. No questions remain.” (DX-S at 1421.) Dr. Rohewal documented the meeting 28 ///// 23 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 24 of 71 1 in a progress note that he dictated at 11:46 a.m. that day, noting “[t]ime spent more than 25 2 minutes in discussing the patient’s case via interpreter with sign language.” (PC-1AH at 1291.) 3 A nursing note entered by Ms. Vaughn on October 20, 2015 states that she had arranged 4 for the interpreter from NorCal, and the interpreter arrived at 10:00 a.m. for the group meeting. 5 (DX-AA at 1527.) This nursing note corresponds to the NorCal request form signed by Ms. 6 Chalko on October 19, 2015, requesting an interpreter be provided on October 20, 2015 between 7 10:00 a.m. and noon for “Diabetes Education / teaching of insulin.” (PX-1B at 1162.) That 8 request in turn corresponds with a NorCal invoice billing DMC for two hours of interpreting 9 services on October 20, 2015 between 10:00 a.m. to noon for “Diabetes Education / Insulin 10 Teaching.” (DX-AR at 1273.) Ms. Vaughn testified at trial that after the group meeting 11 concluded, she met with Mr. Bax to provide teaching regarding insulin and diabetes. (Vol. 3, 12 365:17–24.) 13 Ms. Vaughn also stated in her nursing note that she called NorCal and arranged for an 14 interpreter to also come the next day, October 21, 2015, from 9:30 a.m. to 1:30 p.m. because Mr. 15 Bax requested an interpreter for before, during, and after his second surgery, which was 16 scheduled for October 21, 2015. (DX-AA at 1527; Vol. 3, 366:11–20.) Ms. Vaughn testified that 17 her nursing note corresponds to the NorCal request form signed by Ms. Martinez on October 20, 18 2015, requesting that an interpreter be provided between 9:30 a.m. and 2:00 p.m. on October 21, 19 2015 for “surgery.” (PX-1B at 1161, 1335; Vol. 3, 367:23–368:19.) Ms. Martinez testified that 20 she signed this request form to have an interpreter present for Mr. Bax’s second surgery. (Vol. 2, 21 254:19–255:4.) 22 In addition, Ms. Vaughn noted in her nursing note that Dr. Rohewal would order insulin 23 pens for Mr. Bax because Ms. Vaughn planned to teach the Baxes about patient insulin 24 preparation and injections at 10:00 a.m. on October 22, 2015 with an interpreter. (Vol. 3, 25 368:20–369:13; DX-AA at 1527; DX-AB at 2062.) Accordingly, she filled out a NorCal request 26 form to request an interpreter be provided on October 22, 2015 from 10:00 a.m. to 11:00 a.m. for 27 “teaching,” and Ms. Martinez signed that request form on October 20, 2015. (Vol. 3, 369:14– 28 370:18; Vol. 2, 355:5–13; PX-1B at 1160, 1334.) 24 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 25 of 71 1 Mr. Bax’s medical record includes a nursing note dated October 20, 2015 at 11:15 a.m., 2 stating: “Deaf translator here at [sic] translated consent by sign [patient] verbalized 3 understanding.” (DX-AA at 1528.) The court notes, however, that there is not a consent form 4 signed by Mr. Bax on October 20, 2015 in evidence that would correspond with this note. 5 Nonetheless, considering all of the exhibits and testimony regarding the group meeting 6 and diabetes teaching on October 20, 2015, the court finds by a preponderance of the evidence 7 that DMC had provided the Baxes with a live ASL interpreter on that day. 8 i. October 21: In-Person Interpreter Not Available, VRI Attempted, Second Surgery Rescheduled 9 10 Despite DMC’s requests for an in-person interpreter for October 21, 2015, NorCal did not 11 provide an interpreter for Mr. Bax as requested. Janelle Moland, a social worker who assisted 12 with Mr. Bax’s care, testified that she called NorCal that morning and spoke with a NorCal 13 representative who confirmed that NorCal received DMC’s request but was unable to provide an 14 interpreter on that day. (Vol. 2, 321:21–322:10.) Ms. Moland documented her communication 15 with NorCal in her case management/social services assessment in Mr. Bax’s medical record. 16 (DX-X at 2051.) That assessment record also notes: “[Social services] manager and lead social 17 worker took video translation program through Cyracom in [patient’s] room to communicate lack 18 of physically present interpreter. [Patient] declines to have surgery today without the presence of 19 interpreter. [Patient] refuses video interpreting system as method of communication.” (Id.) Ms. 20 Moland testified that immediately before taking the Cyracom laptop to Mr. Bax’s room, she and 21 her manager Sonia Alves opened the program, connected to a live ASL interpreter, and ensured 22 the connection was working well. (Vol. 2, 322:11–323:6.) Ms. Moland testified that she 23 remembered Mr. Bax did not want to use the VRI, but she did not recall how he conveyed to them 24 that he was declining that service. (Vol. 2, 323:14–18; 328:22–329:2.) 25 Andrea Riemersma, the nurse who cared for Mr. Bax on that day, testified that she was 26 briefly in the room when Ms. Moland and Ms. Alves tried to use the VRI with Mr. Bax and she 27 recalled that the VRI was slow to setup, but she could not remember whether there were any 28 issues with the screen being slow. (Vol. 1, 114:12–115:4.) According to Ms. Riemersma’s 25 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 26 of 71 1 nursing note for October 21, 2015, she spoke with Andrea Perkins in social services at 9:00 a.m. 2 who notified her that the “regular service used for interpreting for the deaf was not available.” 3 (DX-AB at 2062.) That nursing note documents the VRI attempts, noting that social services 4 tried VRI with Mr. Bax twice that day—once at 10:30 a.m., but he refused and complained it was 5 too slow, and again at 1:45 p.m. after social workers adjusted the live video, but he refused to use 6 the VRI at that time as well. (Id.) 7 At 1:43 p.m., Dr. Rohewal dictated a progress note indicating that he spent more than 35- 8 40 minutes at Mr. Bax’s bedside with Ms. Martinez and that they “discussed with the patient with 9 writing down in detail” and “tried to answer all his questions with writing down.” (PX-1AR at 10 1292.) That progress note also states: “Patient wants to speak with interpreter and Dr. 11 Wolterbeek again and hence would not go for surgery at this point. We have spoken with Mark 12 [Medina], the interpreter, who came yesterday and spoke with Dr. Wolterbeek, but patient had 13 agreed to the consent, but again, he has questions.” (Id.) Dr. Rohewal noted that although Mr. 14 Bax had already been given a detailed explanation of the planned procedure, Mr. Bax wanted to 15 discuss the plan again through the interpreter and refused to use VRI. (Id.) 16 Mr. Bax testified at trial that he grew frustrated with the VRI because the screen was 17 pixelated and would lose connection and freeze, so he felt the communication was not effective. 18 (Vol. 1, 31:17–32:9; 38:3–39:3.) Ms. Riemersma testified that Mr. Bax was upset and did not 19 want surgery. (Vol. 1, 128:14–24.) Her nursing note also documents that Mr. Bax had refused to 20 proceed with surgery as scheduled and that she notified Dr. Wolterbeek of his refusal. (DX-AB 21 at 2062.) 22 Dr. Wolterbeek then saw Mr. Bax at 2:35 p.m. and notified him that the next available 23 date for surgery was in two days, on Friday, October 23, 2015 at 9:00 a.m. (Id.) According to 24 Mr. Bax, Dr. Wolterbeek communicated to him that delaying the surgery would increase the 25 chance that he would lose his toe. (Vol. 1, 59:21–60:3.) On the contrary, Dr. Wolterbeek 26 testified at trial that the second debridement surgery was not urgent because Mr. Bax was on a 27 wound vacuum machine that would continue to do its job, and if Mr. Bax’s toes were going to 28 ///// 26 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 27 of 71 1 die, they would die regardless of whether the surgery was performed as scheduled or two days 2 later. (Vol. 2, 225:12–226:16, 237:11–19.) 3 Mr. Bax’s medical record includes a “nursing communication” order entered by Dr. 4 Wolterbeek at 3:51 p.m. on October 21, 2015, which states: “Continuous, translator, be 5 absolutely sure this patient has a sign interpreter at bedside and whereever [sic] he is pushed to on 6 Friday morning. Have him/her bedside no later than 0700 translator needs to travel to surgery 7 with patient THANK YOU SOOOOO MUCH.” (PX-1AX at 601.) Countering plaintiffs’ 8 characterization at trial that this order was a “standing order” or a “continuous order,” Dr. 9 Wolterbeek testified that he made a “nursing communication,” and he did not consider that 10 nursing communication to be a standing order. (Vol. 2, 186:19–25.) According to Dr. 11 Wolterbeek, his intent was to have an interpreter provided for Mr. Bax’s surgery on Friday, not to 12 have an interpreter continuously every day. (Vol. 2, 193:18–19, 195:17–196:8.) Dr. Wolterbeek 13 explained that the word “continuous” is added by a default in the software and that he “absolutely 14 did not write the word ‘continuous.’” (Vol. 2, 191:5–19.)12 Dr. Wolterbeek further explained 15 that nursing communication orders remain active in the system for nurses to view until the patient 16 is discharged. (Vol. 2, 193:12–17.) Indeed, the “end date/time” on Dr. Wolterbeek’s October 21, 17 2015 nursing communication order is October 27, 2015, the date of Mr. Bax’s discharge from 18 DMC. (PX-1AX at 601.) 19 The record of Dr. Wolterbeek’s nursing communication order shows that Ms. Riemersma 20 reviewed this order at 4:11 p.m. that day. (Id.) As Ms. Riemersma noted in her nursing note, she 21 notified Ms. Martinez that an interpreter would be needed for the surgery on October 23, 2015 22 between 7:30 a.m. to noon. (DX-AB at 2062.) Ms. Martinez testified that on October 21, 2015, 23 she signed a request form requesting an interpreter for pre-op and post-op in connection with Mr. 24 ///// 25 12 Consistent with Dr. Wolterbeek’s trial testimony that nursing communication orders start with 26 the word “continuous” by default, the court notes that the word “continuous” appears in the only other nursing communication order admitted into evidence. (See PX-1CS at 12, 13.) There, the 27 word “continuous” appears in Dr. Bojta’s nursing communication order regarding the discrete event of Mr. Bax’s discharge in November 2015 and specifying the time when an interpreter 28 would arrive. (Id.) 27 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 28 of 71 1 Bax’s surgery on Friday morning, October 23, 2015. (PX-1B at 1158, 1332; Vol. 2, 255:21– 2 256:12.) 3 The court finds by a preponderance of the evidence that although an in-person interpreter 4 was not provided on October 21, 2015, DMC had requested an interpreter from NorCal, who was 5 unable to provide one on that day, and that DMC attempted to use VRI with Mr. Bax as an 6 alternative means of communicating effectively. The court credits Mr. Bax’s testimony, 7 however, that he refused to use the VRI because the VRI laptop had connectivity issues causing 8 the screen to freeze and pixelate, such that he could not communicate effectively through use of 9 the remote interpreter. 10 j. October 22: Diabetes Teaching, In-Person Interpreter Provided 11 As noted above, Ms. Vaughn planned to meet with the Baxes at 10:00 a.m. on October 22, 12 2015, with an interpreter for diabetes teaching, and she completed a NorCal request form, which 13 Ms. Martinez signed on October 20, 2015, requesting an interpreter for that teaching. (Vol. 3, 14 368:20–370:18; Vol. 2, 355:5–13; DX-AA at 1527; DX-AB at 2062; PX-1B at 1160, 1334.) 15 There is also a NorCal invoice billing DMC for two hours of interpreting services provided 16 between 10:45 am and 12:45 p.m. on October 22, 2015 for “teaching.” (PX-1AZ at 1274; DX- 17 AR at 1274.) 18 According to Mr. Bax’s medical record, the Baxes did in fact receive that diabetes 19 teaching as scheduled with Ms. Vaughn and an ASL interpreter on October 22, 2015. (PX-1BA 20 at 2502.) Ms. Vaughn’s patient education record lists the topics she covered with the Baxes on 21 October 22, 2015, including how to monitor blood glucose levels, how to address hyperglycemia 22 and hypoglycemia, how to inject insulin, how to use a “sharps” container, and insulin storage. 23 (Id.) Ms. Vaughn testified that Mrs. Bax was actively engaged in this teaching session. (Vol. 3, 24 370:19–371:17.) Mrs. Bax testified that she remembered attending a training with Mr. Bax 25 during his October hospitalization at DMC in which a diabetes specialist spoke to them about Mr. 26 Bax’s diabetes, and she was able to understand the information communicated through the live 27 interpreter. (Vol. 1, 102:11–17.) 28 ///// 28 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 29 of 71 1 In addition, Dr. Rohewal saw Mr. Bax on October 22, 2015, with an interpreter present. 2 A progress note dictated by Dr. Rohewal on October 22, 2015 at 1:02 p.m. notes that Mr. Bax had 3 been given diabetes education and that through a sign language interpreter, Mr. Bax reported to 4 Dr. Rohewal “no new complaints of any worsening pain” and that he “want[ed] to get over the 5 surgery tomorrow.” (PX-1AY at 1294.)13 6 Accordingly, the court finds that DMC provided the Baxes with an in-person ASL 7 interpreter on October 22, 2015. 8 k. October 23: Second Surgery, In-Person Interpreter Provided 9 As noted above, Ms. Martinez signed a NorCal request form to have an interpreter 10 provided for pre-op and post-op in connection with Mr. Bax’s surgery on Friday morning, 11 October 23, 2015. (PX-1B at 1158, 1332; Vol. 2, 255:21–256:12.) That request corresponds 12 with a case management services note from October 22, 2015, noting that a NorCal interpreter 13 had been arranged for October 23, 2015 “to support [patient’s] surgical process.” (DX-X at 14 2051.) There is also a NorCal invoice billing DMC for three hours of interpreting services 15 provided from 7:50 a.m. to 12:50 p.m. on October 23, 2015 for “surgery pre-op/post-op.” (DX- 16 AR at 1275.) 17 Mr. Bax signed a consent to surgery form at 9:10 a.m. on October 23, 2015, specifically 18 consenting to a “left foot debridement with fifth toe amputation, patch graft and possible fourth 19 toe amputation” to be performed by Dr. Wolterbeek. (PX-1C at 1322–23.) That consent form 20 was also signed by the ASL interpreter at 9:10 a.m., attesting to the translation provided and to 21 Mr. Bax’s understanding and agreement to the terms of the consent form. (Id. at 1323.) 22 On October 23, 2015, Dr. Wolterbeek operated on Mr. Bax’s foot for a second time and 23 amputated Mr. Bax’s pinky toe. (PX-1BE at 1997.) Dr. Wolterbeek’s operative report notes that 24 he “utilized a sign translator for [Mr. Bax] to understand the plan” and that Mr. Bax “understands 25 that [toe] #5 is necrotic and [toe] #4 may be required to be removed to be able to get the wound 26 13 It does not appear from Mr. Bax’s medical record that he was seen by Dr. Wolterbeek on 27 October 22, 2015. Dr. Wolterbeek’s progress note on October 22, 2015 does not mention seeing Mr. Bax that day; rather, the assessment/plan is noted as “[a]waiting surgery tomorrow when sign 28 translation can take place.” (PX-1AJ at 1968.) 29 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 30 of 71 1 closed.” (Id.) Dr. Wolterbeek testified that “necrotic” is the definition of cell death, and it means 2 that the toe is destroyed and no longer viable; essentially, the toe is dead. (Vol. 2, 231:21–232:3.) 3 Mrs. Bax testified that it was horrible seeing Mr. Bax’s toe turn black and eventually be 4 amputated; she grieved over it and felt very emotional. (Vol. 1, 103:5–13.) 5 Dr. Rohewal dictated a progress note at 12:34 p.m. noting that he saw Mr. Bax after 6 surgery and “communicated with the patient through a sign language interpreter,” and “the patient 7 is feeling better [and] [h]e is hungry.” (PX-1BD at 1405–1406.) Dr. Rohewal also noted that 8 special orthotics were ordered for Mr. Bax because Dr. Wolterbeek recommended that Mr. Bax 9 walk around with his left heel touching the ground, not his entire left foot. (Id.) 10 Based upon the evidence presented at trial, the court finds that DMC provided the Baxes 11 with an in-person ASL interpreter on October 23, 2015. 12 l. October 24: Rehabilitation Services from Physical Therapist 13 According to a rehabilitation services evaluation in his medical records, Mr. Bax was 14 evaluated by a physical therapist in the afternoon on October 24, 2015. (DX-Y at 1500.) The 15 physical therapist noted in that evaluation record that “[s]econdary to [patient’s] hearing 16 impairment, all communication is through writing, unless staff knows sign language.” (Id.) The 17 physical therapist also noted that Mr. Bax was experiencing a great deal of pain, a 10 out of 10 on 18 the pain scale, when his foot was in the dependent position. (Id.) Mr. Bax also complained of 19 this foot pain to Dr. Rohewal, who dictated a progress note that afternoon, noting: “The patient 20 complaining of foot pain while he tries to keep the foot down. Patient had some pain while using 21 orthotics. He will need re-fitting tomorrow.” (PX-1BH at 1074.) Dr. Rohewal did not specify in 22 that progress note how he communicated with Mr. Bax that day. At trial, Mr. Bax did not present 23 any evidence to suggest that his written communications with the physical therapist or his 24 communications with Dr. Rohewal on that day were ineffective for him. 25 The court notes that in addition to there being no mention of an interpreter in Mr. Bax’s 26 medical record for October 24, 2015, there are no NorCal request forms or NorCal invoices in 27 evidence that would suggest that DMC requested an interpreter for that day. The court therefore 28 finds that DMC did not request an interpreter for the Baxes on October 24, 2015. However, aside 30 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 31 of 71 1 from Mr. Bax’s inconsistent testimony that he requested an interpreter “every single day,” there is 2 also no evidence suggesting that Mr. Bax had specifically requested an interpreter on October 24, 3 2015, or that he felt communicating in writing with the physical therapist was not effective. 4 Given that Mr. Bax had requested interpreters previously and that his requests had been 5 documented in his medical record by DMC nursing staff, the court finds the absence of any 6 mention of a request by Mr. Bax in the medical record on October 24, 2015, to be persuasive 7 evidence that he did not request an interpreter on that day. 8 The court also is not persuaded that Mr. Bax requested an interpreter every day because 9 his testimony suggests that, at least to some degree, communicating with an interpreter was 10 difficult because he was hooked up to an IV and had cords stuck all around his fingers and hands. 11 In that regard, Mr. Bax’s testimony at trial—that he could sign with one hand and did not find it 12 difficult to sign despite the IVs and cords—contradicted his deposition testimony, in which he 13 was asked “[h]ow many times did you ask for a live interpreter,” and he answered: 14 Almost every day. And also I had a hard time communicating because they had the IV in me, stuck all over my fingers and hands 15 and cords all around. And so it was just really frustrating just to navigate all of that just to even try to communicate because they 16 had an IV with a cord, you know, going all around me. So it was hard to move to sign to communicate. 17 18 (Vol. 1, 57:1–12.) This contradiction and inconsistency in testimony casts doubt on the veracity 19 of Mr. Bax’s trial testimony that he had requested an interpreter every single day of his 20 hospitalization at DMC. 21 Based upon all of the evidence presented at trial, the court finds by a preponderance of the 22 evidence both that DMC did not request an interpreter for Mr. Bax on October 24, 2015 and that 23 Mr. Bax did not request an interpreter from DMC on that date. 24 m. October 25: Additional Rehabilitative Services from Physical Therapist 25 Mr. Bax received further rehabilitative services from a physical therapist the afternoon of 26 October 25, 2015. (PX1-BL at 1509.) The physical therapist entered a progress note noting that 27 they communicated in writing, and in particular, Mr. Bax had stated in writing that he needed 28 pain medication. (Id.) The physical therapist also noted that Mr. Bax demonstrated a good 31 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 32 of 71 1 understanding of the status of his non-weight bearing left foot, and that he was pleasant and 2 cooperative with treatment. (Id. at 1510.) There is no evidence in the record that Mr. Bax 3 requested an interpreter on October 25, 2015 or that he told the physical therapist that 4 communicating in writing was ineffective for him. 5 Dr. Rohewal dictated a progress note that afternoon noting that Mr. Bax was “complaining 6 of minimal pain in the lower foot, otherwise, no complaints of any chest discomfort,” though Dr. 7 Rohewal did not specify how Mr. Bax communicated his complaint of lower foot pain. (PX-1BK 8 at 1298.) 9 The court finds on this evidence that DMC did not provide an interpreter for the Baxes on 10 October 25, 2015, and the Baxes did not request an interpreter for that day either. In addition, 11 Mr. Bax has not shown by a preponderance of the evidence that his written communications with 12 the physical therapist or his communications with Dr. Rohewal on October 25, 2015, were 13 ineffective for him. 14 n. October 26: Rehabilitative Services and Refusal to Sign Medicare Notice 15 Dr. Rohewal dictated a progress note at 12:49 p.m. on October 26, 2015, noting that Mr. 16 Bax was feeling better and had no fever, but did have some pain and discomfort while walking. 17 (DX-T at 1952.) Dr. Rohewal’s progress note does not suggest that an interpreter was present 18 during that assessment or that Mr. Bax requested an interpreter. With regard to Mr. Bax’s 19 “chronic deafness,” Dr. Rohewal noted that “[p]atient has been provided with a sign language 20 interpreter almost every day, especially whenever patient requests it. He is happy with care. We 21 try to answer all his questions with either writing or through an interpreter.” (Id.) 22 Mr. Bax received additional rehabilitative services at 12:32 p.m. on October 26, 2015, and 23 the physical therapist noted that they again communicated in writing. (DX-Y at 1507–08.) The 24 physical therapist noted that Mr. Bax received education on shoe fitting and weight bearing 25 restrictions, and that “extra time [was] needed for writing instructions [due to patient] being 26 hearing impaired.” (Id. at 1508.) In addition, the physical therapist gave Mr. Bax a sheet of 27 instructions for him to exercise at home, and after being shown each exercise, Mr. Bax performed 28 each one. (Id.) There is no indication in the rehabilitative services record that Mr. Bax was 32 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 33 of 71 1 dissatisfied with the communication used, that the written communication was ineffective for 2 him, or that he requested an interpreter for these rehabilitative services. 3 By contrast, at 3:15 p.m. that afternoon, Mr. Bax was asked to sign a notice regarding his 4 Medicare rights, and he refused to do so without an interpreter. (PX-1BP at 1327.) An 5 unidentified DMC staff member with the initials “S.M.” wrote the following note on the unsigned 6 Medicare notice: “[Patient] refused to sign. [Patient] is deaf. I asked him in writing to initial this 7 [notice], patient state[d] he wanted me to get a translator, which I am unable to do.” (Id.) There 8 is no evidence that in response to Mr. Bax’s refusal to sign the notice, DMC requested an 9 interpreter for the purpose of translating this Medicare notice for him, despite his request for an 10 interpreter. At trial, Mr. Bax testified that he does not remember seeing this Medicare notice. 11 (Vol. 1, 37:1–8.) However, the court notes that this Medicare notice is identical to the Medicare 12 notice that Mr. Bax had already signed on the evening of October 13, 2015, when he was seen in 13 the emergency department. (Compare PX-1BP at 1327 with PX-1C at 1326.) 14 Based on the evidence admitted at trial, the court finds that Mr. Bax requested an 15 interpreter on October 26, 2015 to translate for him the Medicare notice he was asked to sign, and 16 in response, DMC did not take any steps to obtain an interpreter on that night for that purpose. 17 o. October 27: Case Manager Assessment and Discharge 18 Mr. Bax was discharged from DMC on the morning of October 27, 2015. The day before, 19 in preparation for his discharge, Ms. Martinez signed a NorCal request form to have an interpreter 20 on October 27, 2015 at 11:00 a.m. for “discharge teaching.” (PX-1B at 1330; Vol. 2 at 256:13– 21 23.)14 That request form names the requestor as “Rina.” (PX-1B at 1330; Vol. 2 at 256:13–23.) 22 There is also a NorCal invoice billing DMC for two hours of interpreting services for Mr. Bax on 23 October 27, 2015 beginning at 9:15 a.m. for “discharge teaching,” and that invoice also states that 24 the requestor was “Rina.” (DX-AR at 1276.) Despite the discrepancy in the requested time and 25 26 14 Ms. Martinez testified that discharge teaching is when the care providers “go[] over the patient’s after hospital care, when to follow up with physician, medications, teaching about . . . 27 the next dose due for medications, [a]ny kind of equipment that patients need to be successful at home, [and] [a]ny other follow-up care with primary care physicians or the surgeon.” (Vol. 2, 28 256:25–257:5.) 33 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 34 of 71 1 the invoiced time, it appears that this request form and this invoice correspond with each other. 2 There is conflicting evidence, however, regarding whether Mr. Bax actually received interpreting 3 services in connection with his discharge on October 27, 2015. 4 On the one hand, Mr. Bax testified that with regard to his October hospitalization, he did 5 not have an interpreter until the day he was discharged—i.e., he had an interpreter for his 6 discharge on October 27, 2015. (Vol. 1, 36:14; 40:7–15.) There is also a handwritten progress 7 record by a hospitalist dated October 27, 2015 at 9:40 a.m. stating “[patient] seen and examined. 8 Questions answered thru [sic] interpreter. [Illegible] for [discharge] [follow-up] with Dr. 9 Wolterbeek as for his recommendation and hospitalist [in] 1 week.” (PX-1BX at 1285.) At 10:09 10 a.m. that morning, the hospitalist dictated a discharge summary noting that Dr. Wolterbeek had 11 cleared Mr. Bax with non-weight bearing status on his left foot, that Mr. Bax’s diabetes was 12 better controlled, that various diabetes supplies were given to Mr. Bax, and that “[f]rom acute 13 standpoint, he is stable for discharge.” (PX-1BU at 1280–1281.) The hospitalist noted that all of 14 Mr. Bax’s questions were answered and that he “was stressed upon the good control of the blood 15 sugars and he was questioning whether officially he has diabetes and he was told yesterday, he 16 does have diabetes.” (Id. at 1281.) The hospitalist also noted that Mr. Bax was scheduled to see 17 Dr. Wolterbeek on November 10, 2015 for a surgical follow up and possible removal of his 18 stitches. (Id.) This evidence, coupled with the NorCal invoice for interpreting services on this 19 day, suggests that Mr. Bax did have an interpreter for his discharge on October 27, 2015. 20 On the other hand, a case manager met with Mr. Bax at 10:30 a.m. on October 27, 2015 21 and noted in a case management reassessment record: “Patient to discharge today. [Front- 22 wheeled walker] has been delivered. I wrote messages to patient on clipboard. He stated he can 23 do his own dressings and nursing plans to send him home with some supplies. He doesn’t feel 24 he’ll need HHS. Plans to have girlfriend [Mrs. Bax] help.” (DX-X at 2055.) The case manager 25 also entered another reassessment note at 10:53 a.m. that morning noting that “[follow up] 26 appointments have been made and patient relates he’ll have a way there,” though the case 27 manager did not specify in this latter note the method of communication she used with Mr. Bax. 28 (Id. at 2054.) 34 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 35 of 71 1 In addition, Ms. Halloran testified that for the October 27, 2015 invoice, DMC “paid that 2 interpreter for time coming down, even though the patient was discharged.” (Vol. 2, 313:6–14.) 3 Without pointing to any supporting documentary evidence and ignoring the hospitalist’s record 4 described above, Ms. Halloran testified that DMC “had arranged for an interpreter but somehow 5 [Mr. Bax] left the building before the interpreter arrived.” (Vol. 1, 154:19–24.) It is not clear to 6 the court what the basis is for Ms. Halloran’s trial testimony that the interpreter arrived after Mr. 7 Bax’s discharge. Ms. Halloran testified that discharging a patient before the interpreter arrived 8 “would not be optimal[,] [b]ut if a patient says they’re going to leave, they will leave.” (Vol. 1, 9 154:25–155:4.) Ms. Halloran’s suggestion that Mr. Bax somehow self-discharged, before DMC 10 was ready to discharge him, is not supported by the other evidence admitted during the trial of 11 this case. In any event, the court is flummoxed by the parties’ apparent agreement that the 12 interpreter arrived after Mr. Bax left the hospital. (See Vol. 3, 443:8–10 (defense counsel stated 13 in closing argument that “all we know is that the interpreter didn’t show up until after Mr. Bax 14 had been discharged”); see also Doc. No. 54 (final pretrial order listing as an undisputed fact that 15 DMC “ordered an in-person ASL interpreter on October 27, 2015 in connection with [Mr.] Bax’s 16 discharge but the interpreter did not arrive in time”)).15 17 The court finds that DMC requested an interpreter for the Baxes on October 27, 2015, the 18 interpreter arrived at DMC that day, and DMC paid for that interpreter. As to whether 19 interpreting services were actually provided, the hospitalist notes that he used an interpreter, but 20 the case manager wrote on a clipboard to communicate, and Mr. Bax testified that he had an 21 interpreter for discharge, but Ms. Halloran testified that the interpreter arrived after Mr. Bax left. 22 In light of these irreconcilable discrepancies, the court finds that neither party has established by a 23 15 The court pauses to note that neither of the parties was particularly careful in stating their 24 undisputed facts in their pretrial statements, and mistakes were made as a result. Indeed, during closing argument at trial, the court highlighted an anomaly between the supposedly undisputed 25 facts and the evidence presented at trial with regard to interpreter services provided on a date 26 during Mr. Bax’s November hospitalization, and defense counsel admitted that in retrospect, they had made a mistake in their pretrial statement. (Vol. 3, 445:9–446:7.) Thus, although the 27 undisputed facts stated in the court’s final pretrial order are normally accepted as true without the parties having to present evidence to establish those facts, the court is reluctant to rely solely on 28 those purportedly undisputed facts in making its factual findings in this case. 35 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 36 of 71 1 preponderance of the evidence whether Mr. Bax actually received interpreting services in 2 connection with his discharge from DMC. 3 p. Summary of Interpreter Services during Mr. Bax’s October Hospitalization 4 Though Mr. Bax claimed that he requested an interpreter every day during the 15 days of 5 his hospitalization in October 2015, the court finds that he requested in-person interpreter services 6 on eight of those days. In turn, DMC requested interpreters from NorCal on seven of those days, 7 and interpreters were provided on six of them. As for the two days on which Mr. Bax requested 8 but was not provided an in-person ASL interpreter: (1) DMC had requested an interpreter for Mr. 9 Bax’s second surgery as originally scheduled, but NorCal informed DMC on that day that they 10 could not provide one, leading DMC staff to attempt to communicate with Mr. Bax by using VRI; 11 and (2) DMC did not request an interpreter to translate a Medicare notice, which Mr. Bax had 12 refused to sign without an interpreter present even though he had signed the same notice without 13 an interpreter present on his first night at DMC. 14 2. Mr. Bax’s November 2015 Hospitalization 15 On November 12, 2015, Mr. Bax had a surgical follow-up appointment with Dr. 16 Wolterbeek in his office and was provided an ASL interpreter for that visit. (Vol. 1, 40:16–41:1.) 17 Dr. Wolterbeek testified that when patients come to his office, he provides interpretation services 18 if they are needed. (Vol. 2, 178:21–23.) As to Mr. Bax’s post-operative appointment on 19 November 12, 2015, Dr. Wolterbeek testified that his notes mention that an interpreter was used, 20 but he did not know offhand who specifically requested the interpreter or who paid for the 21 interpreter’s services. (Vol. 2, 178:24–179:14.) 22 Mr. Bax testified that Dr. Wolterbeek told him to go back to the emergency department at 23 DMC for admission to the hospital because his foot had started to swell and show signs of an 24 infection, so he needed to have surgery again to drain the toe. (Vol. 1, 40:16–41:1.) Mr. Bax and 25 Mrs. Bax went to the emergency room that same day. (Vol. 1, 40:25–41:1.) 26 a. November 12: Emergency Department Evaluation, Hospital Admission 27 At 7:32 p.m. on November 12, 2015, Mr. Bax was seen by the triage nurse in the 28 emergency department at DMC who noted Mr. Bax’s chief complaint as “[s]ent by Dr. 36 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 37 of 71 1 Wolterbeek for wound evaluation of left foot.” (DX-AF at 1753.) At 7:48 p.m., Mr. Bax was 2 seen by an emergency room physician who noted in his physician note that he “[c]onversed via 3 writing since patient is deaf,” and that Mr. Bax presented with possible cellulitis on his left foot, 4 which had swelling, redness, and discharge. (Id.) The physician diagnosed Mr. Bax with a post- 5 operative infection, counseled Mr. Bax and Mrs. Bax regarding the diagnosis and treatment plan, 6 discharged Mr. Bax from the emergency department for admission to the hospital, and 7 transitioned Mr. Bax’s care to a hospitalist. (Id. at 1756.) The hospitalist saw Mr. Bax and 8 dictated a note at 10:21 p.m. that night noting that Mr. Bax “is awake, comfortable, 9 communicates by writing as he is chronically deaf.” (DX-AE at 1205.) At trial, Mr. Bax did not 10 present any evidence to suggest that his written communications with the emergency department 11 physician or the hospitalist on the night of November 12, 2015, were ineffective for him 12 Mr. Bax testified that he requested an interpreter every single day during his November 13 hospitalization. (Vol. 1, 41:10–13.) But neither the emergency physician’s note nor the 14 hospitalist’s note include any mention of Mr. Bax requesting an interpreter on this occasion. In 15 addition, Mr. Bax signed a consent form acknowledging receipt of the “Conditions of Service” at 16 7:11 p.m. on November 12, 2015 and acknowledging receipt of the “Notice of Privacy Practices” 17 at 8:00 p.m. that night—apparently without an interpreter to translate those forms—even though 18 he had previously refused to sign some consent forms without an interpreter present during his 19 October hospitalization. (PX-1C at 1174–78.) This trial evidence suggests that Mr. Bax did not 20 request an interpreter on the evening of November 12, 2015. 21 Moreover, Mr. Bax had an interpreter when he met with Dr. Wolterbeek earlier that day to 22 discuss the need for further surgery on his left foot. Although Mr. Bax testified at trial that his 23 communication with hospital staff during his November hospitalization was exactly the same as it 24 was in October, with staff wanting him to write back and forth instead of providing an interpreter, 25 the court finds that Mr. Bax’s testimony in this regard is not wholly credible. (Vol. 1, 41:11–19.) 26 At his deposition, Mr. Bax testified that his second hospitalization was “different than the first 27 time” because “when the doctor came in he had the interpreter with him, [] right there,” and Mr. 28 Bax “felt so much better” and “relieved” that it was “going to be easy for [him] to communicate 37 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 38 of 71 1 with [his] doctor and understand what’s going on and understand [] what the surgery is about.” 2 (Vol. 1, 66:7–67:1.) Mr. Bax further testified that “[t]he second time [he] had an interpreter 3 explain why they were doing what they were doing [a]nd so [he] felt much more comfortable, 4 much more relieved and things went much more smoothly because of that, because it was easier 5 to communicate,” and “the second time . . . was much, much better.” (Vol. 1, 67:7–20.) 6 Accordingly, the court finds by a preponderance of the evidence both that DMC did not 7 request an interpreter for Mr. Bax on November 12, 2015 and that Mr. Bax did not request an 8 interpreter from DMC on that date. 9 b. November 13: Patient Education, Consent to Catheter Procedure 10 At 9:47 a.m. on Friday, November 13, 2015, Mr. Bax received patient education from 11 nurse Fletcher Flieder, who noted “[r]equested interpreter, Charge Nurse is aware,” in the result 12 comments section of that patient education record but did not specify who requested the 13 interpreter—Mr. Bax or nurse Flieder. (PX-1CH at 1035.) 14 There is a NorCal request form dated November 13, 201516 for “pre-surgery counselling / 15 interpretation.” (PX-1B at 1192.) That form caused considerable confusion at trial because it has 16 “ASAP” written for the appointment date, “Now” written for the start time and “Open” for the 17 end time, and “F” circled for the day of the week, but “every day” is handwritten right beneath 18 that selection on the form. (Id.) The court was left without any clarification because none of the 19 individuals listed on that request form—nurse Flieder as the requestor and site contact person, 20 Sue Franklin as the authorizer, Dr. Bojta as the doctor, or Mark Medina as the interpreter— 21 testified at trial. Nevertheless, it appears that on November 13, 2015, DMC requested that an 22 interpreter be provided to communicate with Mr. Bax as soon as possible from NorCal. 23 There is also evidence in Mr. Bax’s medical record suggesting that NorCal provided an 24 interpreter during part of that day. At 10:20 a.m., Mr. Bax signed a consent to surgery form for a 25 “peripherally inserted central catheter” procedure. (PX-1C at 1255–56.) The translator 26 27 16 Although the date written in next to the authorizing signature states “11/13/2014,” the accompanying fax cover sheet states the date as “11/13/15,” and the parties did not dispute at trial 28 that the year 2014 in the date was written by mistake. 38 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 39 of 71 1 attestation section of that form was left blank. (Id. at 1256.) Yet, corresponding with this 2 procedure, there is a NorCal invoice billing DMC for 3.25 hours of interpreting service on 3 November 13, 2015 between 11:30 a.m. and 2:45 p.m. for “[peripherally inserted central catheter] 4 line put in place.” (DX-AR at 1234.) Further evidencing that Mr. Bax had an interpreter during 5 that time, Mr. Bax’s medical record shows that he was evaluated by case management and social 6 services at 12:15 p.m. to address his living arrangements, ability to function independently, post- 7 hospital care, and related issues, and the evaluator noted that he “[spoke with] patient through 8 sign language interpreter.” (DX-AD at 854.) 9 However, the evidence in Mr. Bax’s medical record from the late afternoon and evening 10 of November 13, 2015 show that Mr. Bax did not have an in-person ASL interpreter. At 3:29 11 p.m., social services noted in Mr. Bax’s record that they received a referral from the nurse 12 “regarding [patient] needing translator for American Sign Language,” and that “[social services] 13 provided the live feed translator using the computer,” but the nurse “reports the [patient] was 14 unhappy about the internet connection and the [patient] requests to have a translator present in the 15 room to make the communication more clear.” (Id. at 856.) That note also states that social 16 services “notified [nurse] to call NorCal for interpreter for [patient],” and the nurse reported that 17 “she will let [social services] know if she needs further assistance.” (Id.) At 7:38 p.m., nurse 18 Flieder noted communication with Mr. Bax “using writing board” in an “activities of daily living” 19 assessment record. (DX-AH at 1815.) At 8:08 p.m., nurse Flieder noted in another assessment 20 record that “social services brought in Wi-Fi computer interlink ASL interpreter to bedside.” (Id. 21 at 1814.) Nurse Flieder did not note whether Mr. Bax was similarly dissatisfied with the VRI 22 services that evening. Mr. Bax testified at trial that during his November hospitalization, the VRI 23 was not effective, writing was not effective, and his “only chance to understand was to have an 24 actual live sign language interpreter to explain to [him], to educate [him] on how [he] could 25 recover.” (Vol. 1, 42:10–20.) 26 Based upon this evidence, the court finds that DMC provided an in-person interpreter for 27 Mr. Bax during the day on November 13, 2015 for his catheter procedure and case management 28 assessment with social services, but for the evening assessments, DMC provided only remote 39 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 40 of 71 1 interpreters using VRI. Given that Mr. Bax’s testimony regarding the VRI connectivity issue is 2 substantiated by the social services note in his medical record on that day, the court also finds 3 both that Mr. Bax complained to DMC that the VRI services were not effective for him and that 4 the VRI was not in fact an effective method of communication for him. Although DMC 5 requested an interpreter with an apparently open-ended time frame, DMC did not present any 6 evidence at trial that NorCal was unable to provide an interpreter that evening. 7 c. November 14: Third Surgery, In-Person Interpreter Provided 8 At 8:42 a.m. on November 14, 2015, Mr. Bax signed a consent to surgery form for the 9 “left foot debridement with wound closure” procedure to be performed by Dr. Wolterbeek. (PX- 10 1C at 1257–58.) That consent form was also signed by the ASL interpreter, Mark Medina, 11 attesting to the translation provided and to Mr. Bax’s understanding and agreement to the terms of 12 the consent form. (Id. at 1258.) 13 Aside from the apparently open-ended request submitted by DMC on November 13, 2015, 14 there is not a separate NorCal request form in evidence specifically indicating the request for an 15 interpreter with respect to Mr. Bax’s surgery on November 14, 2015. There is, however, a 16 NorCal invoice billing DMC for eight hours of interpreting between 5:00 a.m. and 1:00 p.m. on 17 November 14, 2015 for “emergency surgery.” (DX-AR at 1233.) 18 At 1:33 p.m. that afternoon, Dr. Wolterbeek dictated his operative report for this surgery, 19 which describes in detail the procedure he performed, though he does not mention his 20 communications with Mr. Bax in that report. (PX-1CL at 822–23.) Mr. Bax does not dispute that 21 he had an interpreter on this day. (Vol. 1, 41 at 11–19) (Mr. Bax testifying that “the interpreter 22 showed up while [he] was in surgery”). 23 In addition, Mr. Bax received patient education at 10:49 a.m. on November 14, 2015, and 24 the patient education record notes that they had an interpreter on site for that teaching. (PX-1CN 25 at 1033.) 26 Accordingly, the court finds that DMC provided an in-person ASL interpreter for the 27 Baxes on November 14, 2015. 28 ///// 40 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 41 of 71 1 d. November 15: Patient Education, Physical Therapy 2 At 9:00 a.m. on November 15, 2015, Mr. Bax received further patient education regarding 3 wound care, diabetes care, and other topics, and the patient education record notes that the 4 teaching method used was “writing on Pad for communication.” (PX-1CQ at 1031.) At 10:10 5 a.m. that morning, Mr. Bax received further patient education regarding how to use crutches, and 6 the patient education record notes the teaching method was demonstration and explanation. (Id. 7 at 1030.) Neither of these patient education records mention that Mr. Bax was dissatisfied with 8 the method of communication used, that he had difficulties understanding, or that he requested an 9 interpreter. Rather, both of these patient education records noted that Mr. Bax verbalized his 10 understanding of the education. (Id. at 1030–31.) Accordingly, Mr. Bax has not shown by a 11 preponderance of the evidence that the communication method used for his patient education on 12 this day was ineffective for him. 13 As noted, the Baxes testified that they requested interpreters for Mr. Bax every day during 14 his November hospitalization. (Vol. 1, 42:10–13.) For the reasons explained above, the court 15 finds that Mr. Bax’s testimony in this regard was not wholly credible. The court similarly 16 questions the veracity of Mrs. Bax’s testimony. According to Mrs. Bax, an interpreter was never 17 provided during Mr. Bax’s November hospitalization. Specifically, Mrs. Bax testified that she 18 kept reminding the doctors and everyone about needing an interpreter, and “it never happened.” 19 (Vol. 1, 84:15–21.) Given the documentary evidence and Mr. Bax’s own testimony to the 20 contrary, Mrs. Bax’s testimony in this regard lacks credibility. 21 Accordingly, the court finds by a preponderance of the evidence both that DMC did not 22 request an interpreter for the Baxes on November 15, 2015 and that the Baxes did not request an 23 interpreter from DMC on that date. 24 e. November 16: New Lunch Tray Requested by Mr. Bax 25 At 3:00 p.m. on November 16, 2015, a nursing assistant annotated Mr. Bax’s medical 26 chart by adding a note documenting her interactions with Mr. Bax with regard to his lunch tray 27 that day. (DX-AJ at 410.) According to the nursing assistant’s chart annotation, Mr. Bax was 28 dissatisfied with the lunch tray he had been given around 2:00 p.m. that day. (Id.) Mr. Bax called 41 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 42 of 71 1 the nursing assistant in to his room and wrote her a note telling her that the food was cold. (Id.) 2 She wrote back asking if Mr. Bax would like her to heat up his food or if he would like something 3 else, to which he wrote back that he wanted a new lunch tray. (Id.) However, the cafeteria staff 4 told the nursing assistant that all the hot food had been thrown away, so the nursing assistant 5 instead provided Mr. Bax with a sandwich and fries, which is what he wanted to eat. (Id.) 6 Aside from this apparently effective communication and interaction regarding Mr. Bax’s 7 lunch tray, there are no other documents in evidence documenting events that occurred on 8 November 16, 2015. 9 Accordingly, the court finds both that DMC did not request an interpreter for the Baxes on 10 November 16, 2015 and that the Baxes did not request an interpreter from DMC on that date. 11 f. November 17: DMC Preparing for Mr. Bax’s Discharge 12 On November 17, 2015, in preparation for Mr. Bax’s hospital discharge the following day, 13 DMC requested an interpreter from NorCal. There is a nursing communication order entered at 14 2:55 p.m. on November 17, 2015 by nurse Anali Spradlin made at the direction of hospitalist Dr. 15 Julianna Bojta. (PX-1CS at 13.) That nursing communication order states: “Per Dr Bojta, 16 [patient] is discharged in system for 11/18/15 in the am. . . . Dr. Bojta spoke with Dr. Wolterbeek 17 and [patient] may go home with PO antibiotics. Follow discharge instructions. Mark Medina a 18 sign language interpreter will be here at 1000 am.” (Id.) However, that nursing communication 19 order has an “end time” just several minutes later at 3:12 p.m. (Id.) It appears that nurse Spradlin 20 terminated that order because at the same time, 3:12 p.m., she entered a different nursing 21 communication order changing the time of Mr. Bax’s discharge and of the interpreter’s arrival. 22 (Id. at 12.) Specifically, the nursing communication order entered at 3:12 p.m. states: 23 Per Dr Bojta, [patient] is discharged in system for 11/18/15 when translator is able to be here which is after 1 pm. . . . Dr. Bojta spoke 24 with Dr. Wolterbeek and [patient] may go home with PO antibiotics. Follow discharge instructions. Mark Medina a sign 25 language interpreter will be here after 1 pm. 26 (Id.) 27 Nurse Spradlin also signed a NorCal request form requesting an interpreter on November 28 18, 2015 for a minimum of two hours, starting between 12:30 – 1:00 p.m., for “Discharge 42 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 43 of 71 1 Instructions / Interpretation.” (PX-1B at 1260.) It appears from the fax communication result 2 report that this request form was faxed to NorCal at 3:11 p.m. on November 17, 2015. (Id. at 3 1261.) There is also a handwritten note on the fax confirmation page stating: “confirmed fax: 4 11/17/15 @ 1520 [3:20 p.m.] w/ Becky & awaiting conf[irmation] for Mark Medina.” (Id.) 5 There are no documents in evidence documenting any interactions or communications 6 with Mr. Bax on November 17, 2015, let alone any evidence to show that DMC’s 7 communications with him on that date were ineffective for him. 8 Accordingly, the court finds both that DMC did not request an interpreter for the Baxes 9 for November 17, 2015 and that the Baxes did not request an interpreter from DMC for that date. 10 g. November 18: Discharge, In-Person Interpreter Provided 11 At 11:12 a.m. on November 18, 2015, a hospitalist noted in a progress note that Mr. Bax 12 would be discharged from the hospital that day, that Mr. Bax would follow up with doctors in 13 Missouri, and that he would likely need to be off from work for two more months according to 14 surgeon, Dr. Wolterbeek. (DX-AI at 1734–36.) The hospitalist also noted that the nurse was 15 “waiting [for] translator for reviewing discharge summary.” (Id. at 1736.) 16 As noted above, on November 17, 2015, DMC requested an interpreter for Mr. Bax’s 17 November 18 discharge. (PX-1B at 1260.) Corresponding with DMC’s request, there is a 18 NorCal invoice billing DMC for 2.5 hours of interpreting on November 18, 2015 between 12:30 19 p.m. and 3:00 p.m. for “discharge instructions.” (DX-AR at 1235.) 20 Accordingly, the court finds that DMC provided the Baxes with an in-person interpreter 21 on November 18, 2015. 22 h. Summary of Interpreter Services for Mr. Bax’s November Hospitalization 23 Though Mr. Bax claimed that he requested an interpreter every day during the seven days 24 of his hospitalization in November 2015, the court finds that he requested in-person interpreter 25 services on only three of those days. In turn, DMC requested interpreters from NorCal and 26 interpreters were provided on those three days. On one of those days, the interpreter was there 27 during the day but not in the evening. As a result, DMC provided a remote interpreter using VRI 28 ///// 43 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 44 of 71 1 for Mr. Bax in the evening, but those services were ultimately not effective for Mr. Bax because 2 of connectivity issues. 3 DMC also presented evidence that it requested and provided an in-person ASL interpreter 4 for an outpatient community diabetes class on November 25, 2015 for Mr. Bax, but that Mr. Bax 5 did not show up for that class. There is a NorCal invoice billing DMC for just one hour on 6 November 25, 2015 noting that the client did not show up. (DX-AR at 1236.) Ms. Vaughn, the 7 diabetes educator who taught that class, testified that Mr. Bax did not show up that day and that 8 DMC still had to pay for the interpreter. (Vol. 3, 374:17–23.) Ms. Vaughn also testified that she 9 called Mrs. Bax, who informed her that Mr. Bax was working out of town and that was why he 10 could not attend the class on that day. (Vol. 3, 377:16–17.) 11 D. Mrs. Bax’s Hospital Visit to DMC in January 2017 12 In the late evening on January 12, 2017, Mrs. Bax went to the emergency room at DMC as 13 a patient because she was experiencing pain in her kidney, back, and neck. (Vol. 1, 88:4–10, 14 89:19–90:19.) In the weeks prior to her visit to DMC, Mrs. Bax had run out of a prescription pain 15 medication, and she wanted to get a refill of the medication from DMC. (Vol. 1, 98:15–99:9.) 16 According to DMC’s medical records for Mrs. Bax, she was admitted to DMC at 9:58 p.m. on 17 January 12, 2017. (DX-AV at 35.) At 10:10 p.m. that night, consistent with the AAS Policy, 18 DMC staff had Mrs. Bax fill out the Services for Deaf and Hard of Hearing Persons assessment 19 form, in which she indicated that she was deaf and wanted an ASL interpreter and closed caption 20 TV. (Vol. 1, 91:8–92:23; PX-3B; DX-AV at 43–45.) Mrs. Bax was accompanied by her 21 companion Mr. Bax, who helped her fill out the assessment form. (Vol. 1, 92:4–9.) 22 At 10:03 p.m. that night, Mrs. Bax was evaluated by a triage nurse, who documented Mrs. 23 Bax’s chief complaint of “right kidney pain and ‘shocking’ sensation to back of neck” in her 24 medical record. (PX-3 at 1819; Rourke Dep. 18:7–24; 24:15–25.) At 10:56 p.m., Mrs. Bax was 25 ///// 26 ///// 27 ///// 28 ///// 44 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 45 of 71 1 evaluated by an emergency room physician assistant, Blaine Rourke. (Rourke Dep. 4:10–12, 8:4– 2 14, 16:6–18:6; 24:15–25; PX-3 at 1819.)17 3 At his deposition, Mr. Rourke testified that he did not remember treating Mrs. Bax and 4 that reviewing her medical records from her visit to DMC did not refresh his recollection in that 5 regard. (Rourke Dep. 16:19–17:8; 29:18–20.) Rourke explained that according to the emergency 6 department physician note in Mrs. Bax’s medical record, he (Rourke) performed the care for Mrs. 7 Bax, and he authenticated the information entered into this note by his scribe.18 (Id. at 17:11– 8 18:6; 19:13–25.) Under “Basic Information” in that note, Mr. Rourke’s scribe entered the 9 “History source” as “Patient, Interpreter, Deaf interpretation via interpreter service on iPad 10 device.” (DX-AV at 52; PX-3 at 1819; Rourke Dep. 19:13–25.) Under “[a]dditional review of 11 symptoms information,” Mr. Rourke or his scribe entered: “limited due to patient’s deafness, 12 used iPad to translate with ASL services.” (Id.) However, Mr. Rourke explained that this phrase 13 “limited due to patient’s” communication/language barrier is a phrase used any time there is such 14 a barrier because “it may not always be possible to gain absolute complete communication with 15 the patient when there is a barrier.” (Rourke Dep. 30:1–31:6.) Mr. Rourke explained further that 16 this phrase is included in medical charts even when a certified translator is used because even 17 then, patients “may curtail some of their answers or something may be lost in translation.” (Id. at 18 30:16–25.) 19 Mr. Rourke recalled the iPad device referenced in this physician note, specifically 20 recalling that the iPad was in a case that had a swivel base that allowed the screen to stand upright 21 17 Mr. Rourke was not available to testify at the trial of this case. In lieu of Mr. Rourke’s live 22 testimony, the court admitted the certified original transcript of his deposition into evidence in its entirety without objection. (Vol. 3, 379:4–17.) 23 18 Mr. Rourke explained that “scribes” are either pre-med, pre-physician assistant, or pre-nursing, 24 students who desire healthcare experience, and are selected to participate in the scribe program. Scribes are in the room with the physician assistants while the patient is being assessed/evaluated. 25 During the assessment, the scribes enter information into the charting system based on what the 26 physician assistant tells them during the assessment of the patient. (Rourke Dep. 12:18–14:19.) The physician assistant reviews the scribe’s entries to ensure accuracy and then “authenticates” 27 them. (Id. at 12:10–17.) Some fields of information would regularly be entered by the scribe, and other fields, like the diagnosis, were entered by the physician assistant themself after the 28 assessment of the patient was concluded. (Id.) 45 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 46 of 71 1 in portrait mode, with a screen that was probably eight to ten inches, and the iPad connected by 2 video and audio to a translation service with an ASL interpreter. (Id. at 20:1–15.) Mr. Rourke 3 had used the iPad device on a regular basis at DMC and found the device to be effective in 4 communicating with deaf patients.19 (Id. at 20:16–25.) Mr. Rourke also had a practice of asking 5 patients at the end of the visit before the ASL interpreter ended the session if they had any 6 questions or if there were any problems with the communication. (Id. at 21:2–22:4.) In addition, 7 the interpreters would always ask the patients if they understood, if they had any questions, and if 8 there were any problems with the communication before ending the session. (Id. at 21:2–20; 9 31:13–25.) In his experience using the iPad device with deaf patients at DMC, Mr. Rourke 10 recalled that the image was clear and not choppy, and the connection did not cut out. (Id. at 23:1– 11 7.) 12 In his physician note, Mr. Rourke or his scribe documented the history of the back pain 13 and posterior neck pain that Mrs. Bax presented with that evening. (PX-3 at 1819.) Specifically, 14 the initial onset of her pain was in 2015, when she fell while at home; she was evaluated at that 15 time for her pain by her primary care physician in San Francisco, who took x-rays and told her 16 she had muscle cramping; there was a new onset episode in December 2016 and her symptoms of 17 sharp pain and cramping were fluctuating in intensity and had gotten worse recently, exacerbated 18 by the cold temperature; her pain often onsets at night; and she had associated symptoms of 19 nausea, pain to the back of the neck, occasional sensation of shortness of breath, intermittent brief 20 generalized weakness, and subjective fever, though she denied bowel dysfunction, bladder 21 dysfunction, and altered sensation. (PX-3 at 1819; Rourke Dep. 16:14–17:5; 24:1–6.) That 22 19 Mr. Rourke explained that prior to using these iPads to communicate with deaf patients, DMC 23 would bring in ASL interpreters if the patient requested one. (Rourke Dep. 22:5–10.) Mr. Rourke specifically recalled that there was a phone number that the charge nurse would call to 24 contact a translation service, and then the service would send an interpreter to the hospital, though it “could take anywhere from one to several hours to get someone who was available to show up 25 in the emergency room to translate,” and “it was often difficult to get someone to show up in a 26 timely manner during night shifts.” (Id. at 22:11–25.) In addition, Mr. Rourke remembered that even after DMC started using VRI services on the iPads, a deaf patient could request a live ASL 27 interpreter and that request would normally be granted. (Id. at 36:4–13.) Mr. Rourke confirmed that if a deaf patient came into the emergency department late at night and requested a live 28 interpreter, DMC would still contact a live interpreter. (Id.) 46 Case 1:17-cv-01348-DAD-SAB Document 74 Filed 08/24/21 Page 47 of 71 1 physician note includes the additional history that Mrs. Bax “has been out of her Rx medications 2 for two weeks, last refill acquired in the [Emergency Department],” and that she had an 3 appointment scheduled with her primary care physician for February 6, 2017. (PX-3 at 1819.) 4 Despite this level of detail in her medical record, Mrs. Bax testified that she remembered 5 that a doctor attempted to use VRI to communicate with her, but the VRI was not effective 6 because the screen kept freezing and was not clear. (Vol. 1, 99:10–17.) Mr. Bax also testified 7 that during his wife’s visit to the emergency department on this occasion, the iPad was not 8 effective and was freezing, and he had to hold it because the staff did not know how to put the 9 iPad on the stand. (Vol. 1 at 44:25–45:25.) As a result, accordin [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10029690. Public record. Not legal advice.