Deaf Mom-to-be gives Birth in the Wrong Hospital?

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“Hello this is Byron, Cheylla needs your help…”

As a lawyer practicing civil law, you rarely receive a cry for help at 8:45 in the evening from a client. I knew that it was happening again – another client who is Deaf that could not get an interpreter for medical care.

I represent Cheylla Silva in a case against South Miami Hospital that was the subject of an August 30, 2014 Miami Herald article  We ensured – guaranteed – that Cheylla was going to receive a sign language interpreter when she gave birth at South Miami Hospital after her high risk pregnancy, so she would have the ability to understand the doctors and nurses. She would not be forced to contort her body to use a remote interpreter on a monitor that rarely works or pass notes during contractions.

However, it seems the best plans often go astray, especially when a baby was not clued into the fact that there are court cases and agreements and guaranties! The baby decided to come early, and Cheylla was bleeding. The ambulance was called and insisted on bringing her to the closest hospital, Kendall Regional Medical Center. Cheylla and her boyfriend, Byron, pled for an interpreter to every person in the hospital. The nurse asked Byron, if he could be the interpreter, and he said “no, I’m hard of hearing” so they provided the number for an interpreting service, Accessible Communication for the Deaf (ACD).

There was no communication with Cheylla or Byron until Cheylla’s younger brother, who knows a little sign language, arrived at the hospital and asked the nurse about the interpreter and was told but it would take them at least 24 hours to obtain an interpreter. Cheylla was furious. She was bleeding and having contractions, she did not know what was happening or going to happen. Her baby was just not ready. She did not know if she or her baby were going to live. She did not have 24 hours to wait to understand what was happening to her. Byron texted ACD and asked for help. Byron emailed me and pled for help.

At the same time, the head nurse tried, but could not get the video remote interpreter to work and instead, used the interpreter’s number – that Cheylla provided – to get assistance to get the video remote interpreter to work. Thereafter, Lisa Campbell from ACD called me and discussed Cheylla’s needs.

Cheylla has a right to an interpreter when giving birth. She should not be worrying about communication more than the directions that she needed, the pain she was feeling and the questions about her health, the baby’s health that she and her boyfriend would have. There are some basic tenets of care during labor that demand basic reassurances and comfort during this time. There was no other option than for ACD to provide interpreters without promise of payment. Lisa was 45 minutes away, but another ACD interpreter, Brenda Adkinson, was only 15 minutes away, and immediately went to Kendall Regional Medical Center. Brenda stayed until 5:30 the following morning, and then Lisa took over and was there when baby Zoey was born at 8:15a.m.. Interpreters then continued to be provided during her hospitalization.

Picture of Baby Zoey in incubator

Baby Zoey

Baby Zoey was born at four pounds, five ounces, and is a beautiful and healthy baby. Cheylla and Byron are doing fine.

The staff at the maternity ward knew about the article in the Herald about Cheylla, but they could not understand the importance of it since no one else has ever complained. They insisted that they called the HCA Language Line and they said they would get an interpreter in 24 hours. While she was there, ACD Interpreter Brenda Adkinson took the time to educate them:

So I then explained to them that is a misuse of VRI. It is only to be used in a reception desk environment. I said, “can you imagine being hospitalized and having to sit up to communicate? If the patient is in labor, who is going to hold the whole computer system up above the patient’s head to see it? What if Wi-Fi drops? What if you need to call tech support? Will the baby wait until tech support arrives?

A live interpreter guarantees you are able to provide best care to your patient. It is a federal law. It doesn’t come out of your pocket, let the hospital pay, why stress yourself out?

When management of the hospital were made aware of the situation, they immediately agreed to pay for the interpreter fees and agreed that VRI should only be used as an interim measure until a live interpreter arrives.

However, the denial of effective communication for the deaf is systemic. Doctors and hospitals know their duties to communicate with their patients, and many hospitals and doctors continue to ignore this duty, and even refuse to see patients. A lawyer should not be needed in the delivery room!

Byron Mena and Cheylla Silva with newborn baby Zoey

Byron Mena and Cheylla Silva with newborn baby Zoey

Institutionalization of Medically Complex Children

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A.R. v. Dudek – the efforts to give children with disabilities the care they need.

Florida has been home for approximately three thousand children with severe disabilities who require constant nursing care or supervision on a 24-hour per day basis to stay alive. These disabilities could be the result of a trauma, such as a shaken baby syndrome, near drowning, or an auto accident, or could be a condition with which the child was born. Many of these children have tracheotomies, gastrostomy tubes, or ventilators, and as a result of their conditions, most of these children have degrees of developmental or intellectual disabilities.

At least since 2010, it has been the policy of the State of Florida to rely on the parents and caregivers, including siblings, of these children to provide such life-sustaining nursing care to these children, despite the requirement of Medicaid to pay for as much nursing care as is medically necessary. These parents or caregivers are not medical professionals, yet they are entrusted with life sustaining care of their children. These parents are pushed into the position of placing their child in a nursing facility to obtain the medically-necessary services they could not receive in their own homes. As a result, the State of Florida pushed many of these children into institutionalized settings, such as residential geriatric nursing homes or 12-hour pediatric prescribed extended care centers. Due to their efforts, Florida saved over $ 25 million dollars by denying claims for nursing services for our most fragile children in 2011 to 2012 alone. For those children in foster care, nursing homes is the only option because of the lack of medical foster homes.

Disability Independence Group, Inc., the North Florida Center for Equal Justice, Inc. and the FSU College of Law Public Interest Law Center are representing these children to ensure that these families receive services in the most integrated setting with appropriate and necessary supports and services to allow these kids with disabilities to live at home. In the landmark United States Supreme Court case of

Olmstead v. L.C. ex rel. Zimring, the Court recognized that the unjustified isolation of individuals with disabilities is discrimination under the Americans with Disabilities Act. In so concluding, the Olmstead Court found that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Children should be with a loving family and are worthy and capable of participating in community life. Unlike one’s own family, medical foster home, or even a group home, such restrictive, medically-based nursing facilities lack required integration with other persons, children, and the community.

This action seeks class-wide injunctive relief and requires the states and their agents to (1) provide all children with disabilities the opportunity to receive services in the most integrated settings; (2) make reasonable modifications to the Defendants’ community service system to accommodate the needs of qualified children the opportunity to live in more integrated settings; (3) implement a professionally-adequate screening and assessment process of children in nursing facilities that will accurately identify children with developmental disabilities, including whether they can be appropriately served in the most integrated settings; and (4) for those children who are medically fragile or medically complex, to ensure that they receive adequate nursing care based upon their medical needs and not based on their parents or caretakers schedule, in the most integrated setting.

Every month, our website will update this matter and provide a description of a few of these children and the families that love their kids and care for them. Each of the families have fought for the care that they have and continuously fight for the lives of their kids.

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