Deafness and deliberate indifference

McCullum v. Orlando Reg ’l Healthcare Sys., Inc., No. 13-12118 (11th Cir. Oct. 3, 2014).

D.F., whom the Eleventh Circuit describes as “deaf and mute,” was hospitalized for a serious illness. The hospital didn’t provide a sign language interpreter or ask D.F.’s parents whether they or D.F. wanted one, and D.F.’s parents sued under the Americans with Disabilities Act and the Rehabilitation Act. (The Rehab Act isn’t as well known as the ADA, but in essence it forbids organizations that receive federal funding from discriminating on the basis of disability.) 

There are other issues in this appeal—whether, for example, D.F.’s parents have standing to sue—but what interests me is the standard the Eleventh Circuit articulates for whether the hospital discriminated against D.F. Under the Rehab Act and ADA, says the Eleventh Circuit, D.F. can recover damages only if he can show that the hospital intentionally discriminated against him—and that, in turn, requires proof that it was “deliberately indifferent” to his rights. Why proof of intentional discrimination should be required is more puzzling. If you go all the way down the rabbit hole of the Eleventh Circuit’s citations, it turns out that this requirement comes from an analogy to other civil rights statutes—statutes, as the Supreme Court has held, that require proof of intentional discrimination before a plaintiff can recover damages. See Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998).

I’m not sure how convincing this analogy is. I thought the ADA was enacted because Congress realized that unthinking actions (failures to reasonably accommodate, for example), can be just as discriminatory as deliberate animus. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring) (“Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.”). So maybe a plaintiff shouldn’t have to show intentional discrimination to recover damages.