On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-5143-96.
Before Judges Havey, Cuff and Lisa.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 20, 2001
Leon Potoczak was deaf and communicated primarily through American Sign Language (ASL). He was admitted to defendant Saint Joseph's Hospital ten times between 1987 and 1996. He died in 1996 following a stroke. Defendant did not provide ASL interpreters during any of these hospitalizations. Following their father's death in 1996, plaintiffs Shirley Potoczak Hall, Priscilla Skyta, Paul Potoczak, his widow, and the Estate of Leon Potoczak filed a five count complaint against defendant Saint Joseph's Hospital alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), the Americans With Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213 (ADA), and the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 to 796 (RA) (Count One); intentional infliction of emotional distress (Count Two); outrageous conduct (Count Three); conduct giving rise to punitive damages (Count Four); and the failure to secure the informed consent of decedent (Count Five).
Plaintiffs Hall, Skyta, and Paul Potoczak*fn1 were required to interpret for their father during the various hospitalizations. Plaintiffs allege that the Hospital discriminated against decedent by failing to reasonably accommodate his disability by providing him with an effective means of communication. His children also contend that the discrimination affected them by denying them an equal opportunity to participate in their father's medical care in the same manner as nondisabled patients and their families.*fn2
The adult children of Leon Potoczak and his estate, appeal from a jury verdict in favor of defendant on their common law and statutory claims alleging that the Hospital discriminated against their father and them when it failed to provide an interpreter. Plaintiffs argue that the trial judge erroneously found that the Hospital's conduct did not constitute a continuing violation of decedent's rights. Thus, the trial judge confined plaintiffs' claims to the September 1995 and December 1995 hospitalizations. Plaintiffs also argue that the trial judge irreparably prejudiced the presentation of their case by limiting the scope of their claim just minutes before delivery of their opening statement. Plaintiffs further contend that the judge erroneously precluded the witnesses from referring to incidents which occurred during prior hospitalizations. They contend that this testimony would have established a pattern and practice of discrimination by the Hospital. Finally, plaintiffs urge that the jury instructions on the issue of reasonable accommodation in this context was wrong and that the trial judge exhibited bias against the plaintiffs which irreparably tainted the trial. We affirm.
Leon Potoczak's main form of communication was ASL. He went to the Trenton School for the Deaf, a resident facility, from the time he was seven years old until he graduated from high school. Both his first wife, plaintiffs' mother, who died in 1973, and his second wife, Rozelle Potoczak, were deaf and communicated with decedent in ASL. Plaintiffs, all of whom have normal hearing, communicated with decedent through ASL. They learned to sign from their parents but had no formal training. They could communicate basic information through signing, but not abstract ideas or technical information. None of the children were certified ASL interpreters or eligible for certification.
Decedent worked as a linotype operator, which required minimal communication. All of his friends were deaf and he had belonged to several organizations and clubs for the deaf.
Decedent read lips "only a very little," could read the newspaper but not complicated documents, did not write well, and verbalized in a way that no one outside of the family could understand. Decedent owned a TTY/TDD (text telephone), an electronic device with a keyboard and screen that is connected to the telephone. Priscilla Skyta, decedent's oldest child, testified that her father used the TTY/TDD to communicate simple messages, such as "I'll be there at six p.m.," but not for longer conversations because he had trouble writing English.
Plaintiffs' linguistics expert, Judy A. Shepard-Kegl, Ph.D., explained why decedent had difficulty with written English. ASL is a visual gestural language that is not at all like English. Instead of subject/verb/object word ordering as in English, ASL is "discourse oriented." Shepard-Kegl considered decedent culturally deaf. She also considered his primary and preferred language to be ASL; in fact, she said that he was nearly monolingual in ASL. He appeared to be a fluent ASL signer, so if he had a qualified ASL signer at the Hospital, he would have understood the medical procedures he was undergoing.
In 1987, decedent first entered Saint Joseph's Hospital for kidney stones, but was diagnosed at that time with heart problems resulting from rheumatic fever that he had as a child and that led to his loss of hearing. He returned to the Hospital a month later, September 1987, for valve replacement and double bypass heart surgery; three times in June 1989 for renal colic and a blocked left kidney; in May 1992 for cardiac catheterization; in July 1992 for repair of a prosthetic aortic valve; in September 1995 for gastrointestinal bleeding; in October 1995 for urinary problems; and in December 1995 for a stroke and respiratory failure. He died in the Hospital on January 4, 1996, at the age of seventy-one.
Plaintiffs testified to their limited ability to interpret for their father while he was hospitalized. They could communicate basic information, but anything complicated, such as explaining the medical tests that were going to be performed, was very difficult for them. They also testified that they withheld information from their father which they believed might worry or upset him. Skyta described how humiliated her father felt when invasive rectal tests had not been adequately explained to him. He was also visibly frightened when a nasogastric tube was inserted through his nose because he did not fully understand what was about to happen or why.
Decedent's children testified that they requested an interpreter for their father numerous times during his various hospitalizations and their requests were ignored by Hospital staff. Sometimes plaintiffs did not relay their father's requests for an interpreter because they feared that the staff would not treat their father well if they were overly demanding.*fn3 Skyta put up a sign near his bed saying, "Patient is deaf. Please look at him"; but despite the sign, Hospital staff often came into his room and started talking to him.
The day before her father died, Skyta wrote and hand-delivered a letter to Sister Jane Francis, president of the Hospital, requesting an interpreter and other accommodations. As soon as she delivered the letter, someone hooked up a TTY/TDD at the nurse's station and a closed-caption television. Skyta testified that she was moved to act when she noticed a Patients' Bill of Rights on the Hospital wall. According to the document, patients were entitled to clear communication and the Hospital would provide an interpreter if necessary or requested.
According to nurse Diane Spath, decedent's family first requested a translator the day before he died. In response, after contacting several ASL interpreters, she put the name and telephone number of an interpreter in a central location so that one could be called if a doctor needed to communicate with decedent when his family was not there. That same day, she arranged for a TTY/TDD to be installed at the nurse's station so that decedent's wife could call the Hospital staff from home. She also arranged for a closed- caption television to be installed in decedent's room.
However, Skyta said that her father had put his request for an interpreter in writing in September 1995, through Robert Queenan, a deaf friend who volunteered at the Hospital. In addition, Florence Sabo testified that when she visited decedent in the Hospital in September 1995, he told her that he wanted an interpreter. Sabo wrote the request down for him, and she gave the note to a nurse. She saw decedent ask a nurse for an interpreter and the nurse ignore him. Decedent also told Sabo that he wanted a TTY/TDD and a closed caption television because he was very lonesome, especially during the evening. Hall also testified that her father requested those devices.
Despite decedent's disability, Dr. David Cohen, decedent's cardiologist from 1987 to his death, testified that he was able to communicate with him. Cohen stated that they communicated in three ways: some lipreading and limited verbal responses; written notes; and through Shirley Potoczak Hall, who usually accompanied decedent on his doctor's visits. Even when Hall did not accompany decedent, Cohen was confident that he and his patient communicated satisfactorily. He observed that decedent's responses were sufficiently detailed to indicate that he understood what Cohen was saying.
Dr. Cohen testified that he visited his patient in the Hospital in 1995 and that nobody in decedent's family told him that decedent needed an interpreter or that their requests for one had been ignored. Decedent's daughters' testimony confirmed that they never discussed ...