Taking Action Against a Hospital

When United Spinal member Barb Zablotney looks back on the series of events that led her to file a discrimination lawsuit against her local Pennsylvania hospital in 2022, there isn’t just one moment or one specific incident that pushed her to the decision. Zablotney, 34, a T8-10 para from Windber, Pennsylvania, had never filed a lawsuit or even been in a courtroom before and wasn’t eager to embark on the long, potentially invasive process of filing suit. Yet when she reflected on the treatment she received and the conditions she witnessed at Windber Hospital over four visits in the winter of 2020-21, she couldn’t shake the feeling that she had been repeatedly wronged, and that if she didn’t take action, other people might suffer even more.

‘Why Am I not Being Listened To?’

That feeling had its beginnings in a visit to the emergency room in late 2020. Zablotney had tested positive for COVID-19 and was battling low oxygen levels. She knew she was very sick, and after watching her father and brother struggle with the virus, she feared for her life. When she fell while transferring, she packed up her positive test and had her brother take her in.

Unfortunately, things did not improve at the hospital. Dizzy and lightheaded, with her oxygen levels hovering in the 80s, Zablotney was made to wait … and wait … and wait. After listening to an F-word- filled tirade from a male nurse who mistakenly assumed her doctor had referred her there and was inexplicably angered by this, she reluctantly agreed to a second COVID-19 test, then waited for the results alone in her room for almost an hour, all the while listening to the same nurse joking around with colleagues in the hallway. “They were talking about what they’re doing for Christmas and the Steelers game and shooting animals and goofing around,” she says.

When her nurse reentered the room with no test results, she asked what’s going on, why the delays? He kept saying he was busy, providing no other explanation. After what seemed an interminable wait, she pushed back. “I’ve been waiting forever, this is ridiculous,” she said. “You know what, I’d rather just go home.” She started slowly rolling toward the door. He said she first had to sign a form saying she was denying treatment. She refused, saying there had been no treatment. Then he accused her of being noncompliant.

She told him, “Well, no, you’re not believing me or doing anything. You’re letting me sit in a room completely alone with absolutely no monitoring, nothing. I don’t understand why you need a second COVID test. Even if it’s negative, are you going to send me home? I’m still telling you I have symptoms, and you can still tell my pulse-oxygen was low. I’m still dizzy. Why am I not being listened to? This is unacceptable. This form does not define what happened or why I’m leaving. I’m going to write down what actually did happen and why I’m leaving.” He told her to go ahead and do whatever. After adding her comments to the form, they both signed the form, she left and went home.

Concerned about her lingering breathing problems and COVID-19 complications, Zablotney’s family doctor ordered follow-up exams, testing and evaluations. So she returned to the same hospital — the only choice in her hometown — for three outpatient visits in February 2021. On her first follow-up, staff explicitly ignored her family doctor’s instructions indicating the best site to establish an IV, which had always been a serious problem. It became increasingly clear that the insensitive care she experienced on her first visit to the emergency department was only the tip of the iceberg.

Staff didn’t provide accessible transfer equipment for her CT scan (no transfer board). The hospital didn’t have an operable Hoyer lift, accessible wheelchair scale, or patient rooms with accessible bathrooms. Additionally, it was clear the staff lacked training on working with a wheelchair user. On top of that, external and internal ramps were too steep, layered parking lots were either difficult or impossible to navigate for a wheelchair user, and there was inadequate signage.

In March 2021, Zablotney was still having breathing problems and could not stop going over in her mind all the issues she’d witnessed. As a longtime disability advocate and United Spinal Association member who has submitted her master’s thesis in disability studies, something didn’t sit right with her. “After the headache I went through getting all the testing done, I realized this has to be illegal,” she says.

Unsure who to call, she remembered that a friend and fellow disability advocate, Josie Badger, had recommended Nye, Stirling, Hale, Miller & Sweet, LLP, a law firm in Pittsburgh. “I trust her,” says Zablotney. “She’s a respectable advocate, not some firebrand. I called the law firm and discussed the whole situation with a legal assistant.” To document her claims, Zablotney sent copies of the form she modified and signed, her emails with hospital staff, and her medical records.

In July 2021, the law firm sent Windber Hospital a demand letter on her behalf, the first step in trying to gain cooperation in making needed alterations and accommodations. Then Zablotney and her lawyers waited for a reply.

A Litany of Violations

Nye, Stirling, Hale, Miller & Sweet, LLP is a nationally respected firm that represents individuals with mobility disabilities in health care access litigation in federal courts throughout the country — one of the few that do. Benjamin Sweet, managing partner of NSHMS’s Pittsburgh office, says the firm prides itself on working with the other side to find mutually beneficial solutions and avoid trials. He was surprised by Windber Hospital’s response to the demand letter. “They essentially told us that they were not willing to negotiate,” says Sweet. “And then their counsel informed us that he would be willing to accept service of a complaint, effectively inviting us to file a federal action.”

NSHMS took time to gather the pertinent information, and filed a formal complaint in March 2022, amending the complaint in July. “You’re talking about a health care facility that was really woefully deficient in terms of compliance with the 1990 Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act,” he says. The complaint also referenced violations of the Obama Administration’s Affordable Care Act, Section 1557. Windber denied all violations.

To survey and document noncompliance, Sweet hired Mark Derry, the president of Eastlake, Derry & Associates, LLC. Derry describes himself as “Mr. Fixit,” and has a long resume working on both the construction and policy sides of accessibility. A below-knee amputee, he served on the U.S. Access Board that drafted guidelines for accessible diagnostic equipment in 2016 and has a decades-long career as an ADA expert in health care accessibility. “Hiring outside investigators in a case like this is somewhat unusual,” says Sweet, “but we think it’s important in the right case to have somebody of his caliber to defend, to support our claim.”

Derry visited the hospital, inspected the facility, prepared a report and sat for a deposition. Sweet says Derry’s report showed “a litany of accessibility violations throughout the hospital.”

Invasive and Confusing

The litigation process was demanding, and for Zablotney, invasive. After the demand letter was rebuffed, then came mediation, discovery, lengthy and exhausting depositions, and a courtroom attempt at settlement. At each stage she had to decide whether to go on. Her father, a pharmacist, owned his own business in town. Her brother, the town chiropractor, also owned his business. And her sister was a psychologist in town. “I didn’t want to attack the hospital that allegedly is helping the people of my town and giving them employment, and I didn’t want the lawsuit to create enemies for myself and my family. That’s what I struggled with the most, because it is a small close-knit community.”

But she also thought about others in town who could be affected, especially two young kids she knew of who used wheelchairs. “They’re very shy and introverted compared to me. God forbid they go to this hospital one day, and something happens and I hear that they died or something. I’m going to always think, could I have done something more? I was hoping that we’d get the typical result, and they would just fix it with the complaint.”

But they didn’t.

The next step was mediation. Mediation took place via Zoom, with each side in its own Zoom Room. The process went back and forth, with the mediator focusing on getting both sides to agree on a plan for remediation. Following more than four hours of nonproductive sparring, Windber and its lawyers walked out. With that, the discovery process began.

Windber’s lawyers requested access to all of Zablotney’s social media, phone, email and text history. “They want it all, and that feels very invasive, very invasive, like I did something wrong, like I’m a criminal,” she says. “Here are these strangers that caused me harm. And here’s their attorney, asking for these personal things of mine. And what are they going to take out of context? What if they think it means something and it doesn’t mean that? I really struggled mentally with that. … On their original ask, I was like, ‘Oh, hell no. This is nuts.’ That was something that I guess I didn’t anticipate.”

Her legal team fought back, successfully restricting information to relevance and a limited time period. Then came a seven-hour deposition marathon, also on Zoom, with more invasive and redundant questions. “The defense attorney made multiple personal attacks on me,” says Zablotney. “They pulled up security footage of my whole time at the hospital from when I drove onto the property until I left, asking questions the whole time, making me feel like I did something wrong by having surveillance footage of me.”

They also showed videos she had posted, and questioned the abilities she showed in them. In one of them she talked about the Supreme Court decision in Cummings v. Premier Rehab Keller, and they claimed she wasn’t a legal nor an ADA expert — to which she replied, “not yet.” “They really focused hard on the narrative of me being on Medicaid services, trying to paint me like a welfare queen or something. Most people would probably be intimidated, but I felt safe that Ben was there to say, ‘OK, she needs a break.’”

Windber’s attorney shifted focus to Zablotney’s medical records, combing through about a decade’s worth, asking about every single time she had gone to the hospital over the 13 years she had been a paraplegic. “Most people can’t remember certain things from a decade ago when they went for what reason and why and what happened. It seemed like they just kept trying to get me to say something, so they could then say, ‘Oh, well, you got service then, so you’re fine.’”

Securing Reform

The tide turned when Sweet’s law partner Jonathan Miller took the deposition of the opposing side’s accessibility expert, an architect with degrees from multiple Ivy League institutions. Testifying for Windber, the accessibility expert tried to portray Derry as not up to the task by comparing his education and business status to Derry’s grassroots history, but it backfired. After initially denying that there were ADA violations, Miller got Windber’s expert to concede that Derry’s report was an accurate portrayal of the litany of accessibility violations at Windber. The judge, according to Zablotney, did not seem happy with the defense attorney’s bad faith tactics at times. Other defense witnesses’ (hospital employees) depositions were also discredited.

“This happens with hospitals a lot,” says Derry. “They will bring in an architect with lots of letters behind his name, who’s good at talking over people and has no respect for people with disabilities. He places himself above you because he’s educated and tries to dismiss you from a position of authority. I read his report and tore it apart during the deposition and stood my ground on the fact of having all these years of doing all of this accessibility advice and training.”

The settlement process began in court, with the judge eventually ordering Zablotney’s counsel to draft a proposed settlement agreement. The final settlement was publicly filed on October 13, 2023, as an exhibit to Sweet’s motion to recover his attorney’s fees and costs from Windber Hospital. The settlement order covered a wide range of the physical and training issues Zablotney and Derry had documented, including:

• Providing Hoyer lifts, a wheelchair scale, accessible exam tables and other diagnostic equipment — and training on how to operate all equipment.
• Removing a “Sleep Lab” from public use because the entry ramp far exceeded acceptable slope (Derry described it to me as a “toboggan run”).
• Remedying inadequate space in waiting areas and adding signage to guide wheelchair users to accessible restrooms and diagnostic and other treatment areas.
• Adding signage and fixing agreed-upon slope and parking space violations in six different parking areas.
• Hiring an ADA coordinator and having ADA-specific training for all patient-facing staff for at least three years.
• Giving the plaintiff and the plaintiff’s counsel the right to inspect and monitor the premises for a period of three years for compliance with the ADA, the Rehabilitation Act and the ACA.
• Ensuring that at least one hospital patient room is fully accessible, including bathroom, within two years.
  While the settlement ordered some physical improvements with limits on dollar amounts, no personal compensation or damages were awarded. Pennsylvania, like most states, does not have laws supporting damages for emotional or personal damages.

A More Accessible Future

Zablotney was very pleased. Sweet says every settlement is a compromise, but the most important thing is how the plaintiff feels about it. Zablotney is especially happy with all the training that will have to take place, because, she says, a well-trained staff that knows how to interact with patients with disabilities can usually solve most problems. Still, having to go through the process is not fun. “It’s tough. It’s a lot of mental labor,” she says.

That said, Zablotney doesn’t regret her decision. “I learned so much and got to see all the blood, sweat and tears that go into the enforcement of civil rights legislation on the plaintiff’s side,” she says. “It made me see a clearer picture in the built world of why we have accessibility.”

Zablotney also came away with a deeper appreciation of the gaps in the ADA and why lawsuits like hers are sometimes needed. “It made me understand why the ADA is not easily enforceable and how most disabled people don’t have the privilege of the emotional bandwidth needed to figure out how to enforce their rights,” she says. Her experience motivated her to work toward becoming a certified ADA coordinator and keep fighting to update the law to fit disability health care needs.

Despite learning about herself and the legal process, Zablotney says she wouldn’t go through the ordeal again for an out-of-compliance retail business or restaurant but wouldn’t hesitate to enlist Sweet and NSHMS again to fight for equal rights at another medical institution.

“Healthcare is nonnegotiable for me — being from a rural setting with the next nearest hospital being a 20-minute drive — while other disabled people may not even have the privilege of transportation to access medical facilities that are a further distance. If any public facility should be accessible and should have employees trained on disability law, etiquette and safety, it should be a hospital.”

Now, with all the hassle and work behind her, as Windber works on complying with the settlement, Zablotney is proud of what she helped accomplish. “I know that I did everything I possibly could to make Windber Hospital more wheelchair user-friendly so if — God forbid — I hear of something happening in the future to these children who use wheelchairs in my community, I won’t question ‘what if I could have done more?’”