One must have a great deal of patience to wade through the text of the American with Disabilities Act (“ADA”). In addition, different courts in the various federal circuits have arrived at conflicting interpretations. And a recent ADA case affecting physicians gives pause for thought. Here, a rheumatologist in New Jersey, Dr. Fogari was on the receiving end of a $400,000 verdict against him, including punitive damages. To add insult to injury, punitive damages are generally not covered by professional liability insurance. And, it is unclear the underlying ADA case itself was even covered.
What happened? The court concluded Dr. Fogari’s transgression was failure to provide an interpreter for his deaf patient. Such an interpreter apparently costs ~$150 to $200 per visit. And Medicare only reimbursed ~$49 per visit. Apparently, Dr. Fogari communicated by exchanging written notes with the patient assisted by family members.
Dr. Fogari treated the patient for lupus and care mainly involved follow-up visits monitoring her medication. The patient experienced no complications and there were no allegations of negligence. The patient transferred her care to another doctor.
Dr. Fogari then received a surprising piece of mail. He was being sued for violating the federal American with Disabilities Act and New Jersey’s analogous statute. The allegation: the good doctor never properly explained the risks and benefits of her treatment – steroids- and she was deprived an equal opportunity to participate in her care.
A doctor’s duty is to provide effective communication. And there are many ways to provide effective communication (interpreters, written notes, lip reading, etc.). But such communication is evaluated based on the eye, or in this case, the ear, of the beholder. All cases are interpreted based on facts. And, in this case, the plaintiff asked the doctor for a sign language interpreter. Supposedly the patient also had a sign language service call the doctor’s office to offer its services.
So how did a low-level dispute escalate to a six figure lawsuit? There is no way to know for sure, but, it likely manifest as the perfect storm. The law, as noted, is vague regarding how communication must be rendered. Because of that, there is latitude to find a meeting of the minds. Most deaf patients understand they navigate a complex healthcare system best with family members who understand sign language. Such individuals readily serve as interpreters, able to advocate for their loved ones. Other patients are perfectly comfortable passing written notes to and from their doctor. But, if the relationship breaks down, any disability can serve as an excuse to express dissatisfaction. In other words, it can lead to an asymmetrical conflict (where those who feel disenfranchised do what they believe is legally possible to regain a modicum of power).
Are there lessons here? Probably a few. The argument that taking care of the disabled is a loss-leader will not convince a jury. More importantly, if the patient validates the process, the physician will likely be protected. Document that the patient has agreed to a particular method of communication as being reasonable and appropriate. If the patient believes he/she does not understand, engage his/her thoughts in crafting a reasonable solution. It is unlikely any physician has filed for bankruptcy after being inundated by ADA claims. Deal with the issue upfront and it is considered an explanation. Dealing with it after-the-fact and it may be labeled an excuse.
Finally, it’s not all gloom and doom. If you, as a small business owner, hire an employee with a recognized disability, you are potentially eligible for tax credits in the thousands. And, if that individual understands sign language, you have killed two birds with one stone. That said, disability law remains a challenging maze…