Supreme Court to Consider Emotional Distress Damages for Disabled Patients

By Matthew Vadum
Matthew Vadum
Matthew Vadum
contributor
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
July 7, 2021 Updated: July 12, 2021

This fall, the Supreme Court will grapple with the issue of whether federal civil rights laws allow compensatory damages for emotional distress in a case that may clarify what legal responsibility federally-funded health care providers have to provide accommodations to patients with disabilities.

The lawsuit was brought by a deaf-blind woman denied an American Sign Language (ASL) interpreter by a health care provider.

“It really is important that the deaf community has access to services that they’re entitled to under the law, and that’s an important part of this case,” the woman’s attorney, New York-based Andrew Rozynski, told The Epoch Times in an interview.

Rozynski said he was “encouraged” by the Supreme Court’s decision to take the case.

The U.S. Department of Justice had “filed a brief saying they agree the underlying decisions were wrong and urged the court to take on the case,” he said.

“I hope she can get a reversal from the Supreme Court and move forward with her case.”

The case is Cummings v. Premier Rehab Keller PLLC. The court, as is its custom, didn’t explain why it decided last week to hear the case. The petition for certiorari, or review, had been filed with the court on Aug. 21, 2020, after the U.S. Court of Appeals for the 5th Circuit ruled against the petitioner on Jan. 24, 2020.

The case is expected to be heard during the Supreme Court’s upcoming term that begins in October.

The petitioner is Jane Cummings, who has been deaf since birth, is legally blind, and has albinism. The respondent is Premier Rehab Keller PLLC, which operates physical therapy clinics in the Dallas-Fort Worth, Texas, area.

Legal blindness, a term used by governments to determine eligibility for benefits, such as disability payments or job training, isn’t the same as total blindness. Very few legally blind people are totally blind.

Normal vision is 20/20, which means a person can clearly see an object 20 feet away, according to WebMD. A legally blind person’s vision is 20/200 or less. An estimated 1.1 million Americans are legally blind.

Because her disabilities make it difficult for Cummings to speak, read, and write in English, she communicates primarily through American Sign Language.

Cummings has low vision and needs a close-range ASL interpreter, Rozynski said. In this kind of interpreting, which is also known as close-vision interpreting, the ASL interpreter signs at a distance suitable for partially sighted individuals.

In 2016, Cummings’s physician referred her to Premier to treat her chronic back pain because, in the physician’s view, Premier runs the “best rehabilitation clinic in the area.” When Cummings contacted Premier to schedule an appointment, she requested an ASL interpreter. After she explained that her disabilities prevent her from communicating through other methods like notes, lipreading, or gestures, Premier refused to provide an interpreter, according to the petition filed with the Supreme Court.

A second physician also referred Cummings to Premier, saying it “provides the best physical therapy services in the area.” She contacted the company twice in the following months, each time reiterating that she needed an ASL interpreter because of her disabilities. Premier still refused to provide that accommodation, and Cummings had to seek care elsewhere, the petition stated.

There’s no reason Premier couldn’t have accommodated Cummings, Rozynski said.

“They said she needs her own interpreter,” he said.

“They have a lot of resources, so it shouldn’t have been a problem for them. Many solo practitioners provide sign-language interpreters to their patients.”

Such accommodations have been required by the Rehabilitation Act since 1973, Rozynski noted.

In the lawsuit, Cummings claimed that Premier discriminated against her on the basis of disability by denying her an interpreter, in violation of the Americans With Disabilities Act, the Rehabilitation Act, and the Affordable Care Act—commonly referred to as the Obamacare statute. She also claimed Premier violated the Texas Human Resources Code, but later withdrew that claim.

On Jan. 16, 2019, Fort Worth-based Judge John McBryde, an appointee of President George H.W. Bush, dismissed the case on a motion for summary judgment by Premier.

Cummings failed to comply with local court rules, the judge determined, and had brought “an action virtually identical to the instant one” against an optometrist. In that case, Cummings v. Total Eye Care, which a court had ruled on two weeks before, “the optometrist’s office offered to provide an appropriate interpreter for plaintiff if she came to its place of business, but plaintiff was not satisfied because she insisted that the interpreter be ‘certified,’” McBryde wrote.

The 5th Circuit affirmed, invoking what it called the “general rule” that “emotional distress damages are not available for breach of contract.”

The Epoch Times reached out to Brian Scott Bradley, the Fort Worth-based counsel of record for Premier, for a comment, but he didn’t respond as of press time.

In the company’s brief in opposition to certiorari filed with the Supreme Court, it argued that Cummings wasn’t entitled to attempt to recover emotional distress damages under the Rehabilitation Act and the Affordable Care Act.

Correction: A previous version of this article misstated the kind of ASL interpretation needed by Cummings. The Epoch Times regrets the error.

Matthew Vadum
Matthew Vadum
contributor
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.