We received a call from a dentist in the Midwest. A week earlier someone called for an appointment. He wanted a run of the mill check-up. First available appointment was Friday at 4PM. Just before closing. In the waiting room, the patient appeared morbidly obese. It was impossible to estimate accurately. But, the receptionist assumed 450 pounds. The patient drove by himself to the office. He walked in without assistance. The most pressing concern was whether the dental exam chair would accommodate this patient without collapsing.
That question was the practical concern. The patient was already in the office. The staff had no heads up this patient might need a special accommodation. Fortunately, the representative for the company that distributed the equipment confirmed the chair would make the cut. He gave guidance on how the patient should approach the chair. He gave instructions on chair positions to be avoided. So, this had a happy ending.
But, what if the chair maxed out at 400 pounds capacity? Is morbid obesity considered a disability under the Americans with Disabilities Act (ADA)? If so, what accommodations, if any, are considered reasonably necessary to help such patients who present.
The ADA is a moving target. And many court cases related to ADA have focused on employer-employee conflicts.
Historically, obesity was not considered a disability under the ADA. Things changed last year.
On March 5, 2018, in a decision styled Shell v. Burlington Northern Santa Fe Railway Company, Case No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018), the U.S. District Court for the Northern District of Illinois suggested liability could attach where an employer regarded an obese individual as disabled, in violation of the Americans with Disabilities Act, as amended (“ADA”).
A little background.
The Equal Employment Opportunity Commission (EEOC) issued guidance stating that physical characteristics such as weight do not qualify as disabilities unless they are (a) outside normal range; and (b) result from a physiologic disorder.
So, morbid obesity, by itself, would not be considered a disability under EEOC guidance. Morbid obesity caused by hypothyroidism, for example, might be considered a disability.
BNSF Railway had a policy prohibiting employees with a body mass index (BMI) over 40 from holding safety sensitive positions. It concluded such individuals had a high risk of developing conditions that “can manifest as a sudden incapacitation or a serious impairment of alertness or cognitive ability.” Ronald Shell applied for the job of intermodal equipment operator, a job that required using heavy equipment. BNSF considered it a safety sensitive job. Mr. Shell’s BMI was 47.5. His conditional job offer was withdrawn.
Shell sued alleging ADA violations.
In its motion for summary judgment, BNSF argued to the court that obesity, by itself, was not considered a disability.
However, the Court pointed to the fact that BNSF’s policy [wa]s based on concerns that someone with a BMI over 40 “would develop sleep apnea, diabetes, or heart disease” and become incapacitated. All of these conditions, the Court noted, are disabilities. As a result, the Court held that BNSF was “acting based upon an anticipated worst-case scenario derived from precisely the sort of myth, fear, or stereotype which the ADA is meant to guard against,” and denied summary judgment.
BNSF lost its motion for summary judgment. An appeal on that motion is pending. The case goes on. Regardless of the outcome, this case may not serve as binding precedent in other geographic appellate circuits. Clear answers and unambiguous guidance are not on the horizon.
Doctors’ offices have been in the crosshairs with ADA issues. That’s why most offices have wheelchair ramps for access and rails in the bathroom.
If a patient presents with morbid obesity, what is a practice’s obligation? And what if there was no notice? There is no clear answer right now. Arguably, if morbid obesity IS treated as a disability by a court, a practice’s obligation is to provide a reasonable accommodation, unless doing so would pose an undue hardship. If your equipment will accommodate a 450-pound patient, then you cannot turn that patient away. If your equipment will not hold such a patient, then you should help guide the patient to a practice that has such equipment.
My two cents. I think it would pose an undue hardship to force a practice to rent a special dental exam chair for a single use. That would require more than just rental. It would require training. Remember, most ADA issues are complaint driven. The patient feels disrespected. You can prevent or defuse such a crisis by listening patiently and trying to be a problem solver. The vast majority of patients with disabilities are reasonable. They merely want to participate in everyday life.
Finally, the ADA is the federal law on disabilities. Doctors’ offices are considered public accommodations and are subject to the ADA under federal law. States often have parallel statutes on the books.
What do you think?
ABOUT THE AUTHOR
Jeffrey Segal, MD, JD
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
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d weight limitsI don’t know whether it fits into the legal definition of a disability (since I don’t know what that definition is). But I do know that equipment has stated weight limits. So do ladders that you buy in hardware stores. Do the ladders violate ADA requirements?
What happens if you put someone on the best chair or table you have and it collapses?
Know why they post weight limits on surgical, angiographic and scanner tables? The tables will always hold ~much~ more weight than the stated limits. The reason for the limits is so that someone can get on top of the patient and do CPR–and still not collapse the equipment.
That said, morbidly overweight patients do present realistic medical and surgical complexities that aren’t always externally obvious. For that reason, we have been known to refer them for elective scanning to large animal vet clinics for evaluation. Yes, really. Their equipment laughs at the sizes of even the most obese patients I’ve seen.
Well, this is a hefty issue. And the ultimate outcome of that BNSF case might change pretty much every public accommodation in the country (something I’m sure the appeals court is weighing—heavily! as they formulate their decision). Agree that attempting to be accommodating while stressing safety considerations is key to the practitioner, but that might not prevent suit if ultimately the patient cannot be accommodated, or is injured. However, because of rampant obesity prejudice, it would probably be the rare victim who would want to be judged in court without a serious injury, and probably the rare lawyer who would want to argue the case. I’m glad to know that medical equipment is calibrated adding the weight of the potential CPR provider. Surely the bariatric surgeons have considered this issue. Maybe they will weigh in. Or have—- very creatively, above: use the vets!
Bariatric surgery programs force their obese patients to try to lose weight for 6 months or a year or more before they will agree to do the surgery! If the patients don’t lose weight, they are considered not motivated and therefore are denied surgery? That is just insane. The programs are trying to keep high risk patients out of their ORs in order to maintain their high performance. I know a number of patients that are refugees from three different programs. Those programs use any excuse to exclude patients.
As far as the individual patient in the individual physician’s office, most exam tables or a chair should hold that much weight. There should be cuffs large enough to use on a forearm to check blood pressure under certain limited circumstances. Most physician’s offices do not have a chair with an electric motor, and a floor anchor that would require a weight limit. Most exam tables are rated for 500 pounds with a patient sitting or laying flat. In the rare instance where a physician cannot adequately examine a patient, they need to apologize profusely to the patient for not having the necessary equipment, and arrange for the patient to be seen by a physician that can accommodate the patient.
If the chair won’t fit, you cannot sit.
Our surgicenter has an upper limit on patients’ BMIs to be considered for surgery, and those who exceed the limit may be done in a hospital. If the dentist can’t accommodate a morbidly obese patient, an oral surgeon with hospital privileges might. Thank you.
Most dental chairs can hold, and lift 400-500 pounds. Most chairs now-a-days have adjustable headrests to accommodate working with a wheelchair – not easy to do (especially for a dentist who stands 4’10”), but it is doable. If a patient that size showed up in my office, would apologize that my chair cannot hold his weight and I’d rather not have it collapse with him in it. And follow that up with, “Let’s take this (waiting room) chair into a room and I’ll readjust the headrest so I can treat you.” No problem. I would also probably discuss diet and movement with him.
When we lived in San Jose, CA there was a practicing attorney that had a group of disabled patients who were put into service by him to “identify” ADA non-compliant businesses.
Those business were then sent a threat letter for a lawsuit against them for lack of compliance. Along with this letter was a “demand for damages” to the person who did the original research, which I assume was split with the attorney. Some of the businesses WERE sued by his “investigators.”
Some small business collapsed completely under the weight of these demands and closed.
The attorney involved, I believe was himself disabled and used a wheelchair. There were some articles about him in the MEDIA and the media itself did not have any pejorative things to say about him.
I think that if you receive a letter of demand from an attorney you are in trouble. Real trouble. Morbid obesity is getting more and more common in the age when people no longer get exercise and eat very unhealthy diets.
I have no idea how Government will (eventually) pay for the epidemic of diabetes occurring in populations who have crossed into the US illegally.
Without getting off-topic, I don’t have an answer for this problem if the influx is allowed to continue unabated.
Michael M. Rosenblatt, DPM