The Affordable Care Act (ACA) establishes a cause of action for healthcare discrimination: “[A]n individual shall not, on the ground prohibited under [four existing federal nondiscrimination statutes], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance….The enforcement mechanisms provided for and available under [29 U.S.C. § 794]…shall apply for purposes of violations of this subsection.” https://www.law.cornell.edu/uscode/text/42/18116. Section 794 of 29 U.S.C. is part of the Rehabilitation Act of 1973. It is one of the four nondiscrimination laws referred to in brackets above, and it also establishes a cause of action: “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….” https://www.law.cornell.edu/uscode/text/29/794.
The facts of this case, Tomei v. Parkwest Medical Center et al., https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0010p-06.pdf (6th Cir. 1/18/2022), are horrifying and are what drew my attention (and I’ll get to them), but the merits were not before the court of appeals – rather, the issue was the statute of limitations applicable to healthcare discrimination cases under the ACA. As the court explained,
The defendants moved to dismiss, arguing that Tomei waited too long to sue. They say his suit is time-barred. Why? Because they contend that Tennessee’s one-year statute of limitations for personal-injury suits applies through the Rehabilitation Act of 1973. The district court disagreed….
Congress has set a default statute of limitations for federal causes of action. Unless federal law provides otherwise, a civil action “arising under” a federal statute enacted after December 1, 1990, is subject to a four-year statute of limitations. 28 U.S.C. § 1658(a). This presents two questions for us. First, does Tomei’s claim “arise under” a federal statute enacted after 1990? If it doesn’t, we end the inquiry – the four-year statute of limitations doesn’t apply, and Tomei’s suit is untimely under the applicable state statute of limitations. If it does, we ask the second question: Does a federal statute otherwise provide a different statute of limitations?
Some background on the statutes at issue. Tomei sued under the Affordable Care Act, alleging that Parkwest violated the ACA’s nondiscrimination provision by failing to accommodate his disability. That provision bars certain health-related programs from discriminating on the grounds “prohibited under” the Rehabilitation Act. 42 U.S.C. § 18116(a) (referencing 29 U.S.C. § 794). It also incorporates “[t]he enforcement mechanisms provided for and available under” the Rehabilitation Act’s own nondiscrimination provision. Courts interpreting the latter provision, which was enacted before 1990, have held the law borrows state statutes of limitations.
Thus, the fate of Tomei’s claim depends on which statute of limitations applies. If the Rehabilitation Act’s borrowed statute of limitations applies – here, Tennessee’s one-year personal-injury statute of limitations – Tomei’s suit is untimely. But if the standard federal four-year statute of limitations applies, his suit may proceed. (Footnote and case citation omitted.)
The court held that Tomei’s claim “arises under” the ACA (enacted in 2010), not the Rehabilitation Act (1973), so the federal statute applies. This appears to be a case of first impression – the Sixth Circuit’s opinion cites no case on point from any other court of appeals or any district court (which means the parties couldn’t find a case on point, either). So it’s an important decision – one that all practitioners (both plaintiff and defense) of ACA nondiscrimination litigation need to be aware of – and the court’s analysis is well worth reading. But I’m not going to address that analysis here, because, as I said, the very distressing facts of the case are what made me want to blog about it. So here they are – bearing in mind that, as the court said in a footnote, “Because this appeal involves a motion to dismiss, we must take the facts in the light most favorable to the plaintiff, Tomei.”
Scott Tomei went to the hospital after he fell and hurt his foot and leg. He is deaf and communicates using American Sign Language (ASL). So when he arrived, he asked for an interpreter. But the hospital – Parkwest – never provided one. Medical staff simply x-rayed his knee, gave him an antibiotic and ibuprofen, and sent him home.
But the medication didn’t help. Tomei’s pain got worse. So two days later he went to the emergency room, where doctors determined he had blood clots in his leg. The doctors sent him back to Parkwest in an ambulance and requested that Parkwest provide an interpreter for Tomei. Yet when he arrived, Parkwest refused. Instead, the hospital offered a Video Remote Interpreting device, which promised to connect Tomei with an off-site interpreter via webcam. But the hospital’s firewall made the connection so glitchy that Tomei couldn’t effectively communicate.
A Parkwest doctor performed surgery for his blood clots. Afterward, Tomei continued to suffer from intense burning and pins-and-needles pains. But without an interpreter, he couldn’t tell the medical staff about what he was experiencing. And even when the pain became so unbearable that Tomei was screaming in agony, Parkwest refused him an interpreter. After a few nights at the hospital, the doctors sent Tomei home. He was sedated, and his foot was blue.
The next day, two medical staff from Covenant Health visited Tomei for a physical therapy appointment. But his foot was in such bad shape that they couldn’t complete the physical therapy. So they called Tomei’s doctor at Parkwest, who advised that Tomei should schedule an appointment with his family doctor.
Tomei’s family doctor sent him to another hospital – the University of Tennessee Medical Center. There, a different story unfolded: The hospital immediately provided Tomei with in-person interpreters. The interpreters helped him through a second surgery for his blood clots (less than one week after his surgery at Parkwest).
But Tomei’s condition didn’t improve. Doctors amputated nearly one third of his leg. The staff at the new hospital told him through an interpreter that the amputation could have been avoided if he had come to them earlier. This was news to him: Neither Parkwest nor Covenant Health had told Tomei that there was any chance he’d lose his leg. (Emphasis added; internal quotation marks and citations to the record below omitted.)
What makes this case particularly disturbing is that Parkwest isn’t some small rural hospital that might reasonably be excused for not having an ASL interpreter on call. With 492 licensed beds, 39 emergency beds and 29 surgery suites, it’s “West Knoxville’s premier [and largest] medical facility and a top performing heart hospital. In addition to providing the area’s leading cardiac services, Parkwest has a nationally recognized emergency department and offers award-winning care throughout our facility. Our team of more than 500 physicians and over 1,800 employees work together to make sure that everyone who walks through our door is Treated Well. Well Treated®.” https://www.treatedwell.com/employment-opportunities/. That a hospital of that size and distinction, in this day and age, didn’t have ASL interpreters readily available to enable a deaf patient to communicate is simply appalling. If the plaintiff meets his burden of proof at trial and establishes the truth of the facts narrated by the court of appeals, I cannot imagine how Parkwest will defend itself. Actually, now that the statute of limitations defense has failed, I suspect the case will settle.
