A Hudson County jury recently awarded $400,000 to a deaf patient whose physician refused to provide her with an American Sign Language ("ASL") interpreter. The award included $200,000 in punitive damages. The doctor's malpractice carrier did not defend and denied coverage liability, apparently because there were no allegations of malpractice or deficient care. The doctor reportedly plans to appeal.
The defendant, Dr. Robert Fogari, treated plaintiff Irma Gerena for Lupus for twenty months. Gerena repeatedly asked Dr. Fogari to provide an interpreter for their monthly appointments. Dr. Fogari refused because it would have cost him $150 to $200 per visit for an ASL interpreter while Gerena's insurance paid Dr. Fogari only $49 per visit. Dr. Fogari instead communicated with Gerena through her civil union partner, Lourdes Torres, as well as through the couple's 9-year-old daughter. Gerena alleged that Dr. Fogari eventually told her to go to another doctor because of her repeated requests for an interpreter. Gerena's new doctor took her off of the steroid that Dr. Fogari had prescribed, which had caused swelling in her face. Gerena claimed that, until then, she had misunderstood and thought the swelling was a symptom of her illness.
Gerena filed suit under the New Jersey Law Against Discrimination ("LAD"), the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"). The LAD and the ADA prohibit discrimination against disabled individuals by places of public accommodation, which includes private health care providers regardless of the size of the office or the number of employees. The Rehabilitation Act requires that persons with disabilities be afforded "meaningful access" to programs and activities that receive federal financial funds, including physicians who receive Medicare or Medicaid payments. A patient does not have to be personally covered by Medicare or Medicaid to be entitled to accommodations under the Rehabilitation Act.
These laws require covered entities to provide services and programs in a manner that affords patrons an equal opportunity to benefit from or participate in the services/programs.
In particular, individuals with a speech, hearing, or visual impairment must be provided with "effective communication," which may include auxiliary aids, such as qualified interpreters, assisted listening devices, telecommunications devices for the deaf (TDDs), video text displays, Braille materials and large-print materials. Gerena claimed that without the ASL interpreter, she was unable to fully understand and participate in her treatment, including the risks involved and potential alternatives.
Under these laws, the covered entity cannot charge a disabled individual for the costs of these accommodations and most health insurers, including Medicare, do not cover these costs. Dr. Fogari argued that as a solo practitioner, it was an undue burden for him to have to pay three or four times the amount he was being paid for Gerena's visits to provide an ASL interpreter. (Note: The cost could have been subsumed into operating expenses and passed on to all patrons equally. Thus, to determine whether the cost is unduly burdensome, the court considered the overall financial circumstances of the entity. Gerena's attorney asserted that the doctor's annual earnings of at least $400,000 demonstrated that his practice could afford the cost of an ASL interpreter for Gerena.)
Further, asking the patient to use a family member or friend as an interpreter often will not be legally sufficient. As noted in Appendix B to the ADA regulations, even if a family member or friend is proficient in sign language, he or she "may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret effectively, accurately, and impartially." Thus, absent emergent circumstances, using a child to interpret is questionable. If the deaf patient wants an adult relative or friend to interpret, that may be permissible, if, in the circumstances, it appears that the individual can be an effective communicator. Otherwise, a professional ASL interpreter normally should be used whenever signing would be necessary to ensure effective communication.
An interpreter, however, might not be needed for every visit. Depending on such factors as the length, complexity, and purpose of the visit, another method may suffice. New Jersey courts have recognized a distinction between communications made as part of a patient's "everyday routine care," where a lesser accommodation, such as written notes may suffice, and more significant interactions regarding "critical aspects" of the patient's "medical care and treatment," where an ASL interpreter may be necessary to handle the more complicated discussions that likely would take place. See Borngesser v. Jersey Shore Medical Center, 340 N.J. Super. 369, 386 (App. Div. 2001). The Borngesser court emphasized, however, that the question of whether effective communication has been provided is to be considered objectively from the patient's perspective. Thus, even though the place of public accommodation does not have to provide a particular accommodation (i.e., the accommodation requested by the patient), it must ensure that the accommodation it chooses sufficiently provides effective communication to the disabled patron. The patient does not have an obligation to bring to the attention of the public accommodation his or her inability to fully understand what is being communicated. Rather, the provider must ensure that the communication employed is effectively conveying the information. Id. at 384.
Significantly, in Gerena's case, her written English skills were poor and apparently using notes would not have been an effective option. Indeed, the Department of Health and Human Services has noted that ASL is a distinct "language" and that English may be "foreign" to many deaf individuals who utilize ASL.
EDITORS' COMMENT: Doctors, hospitals and other medical facilities need to understand their obligations to accommodate patients with disabilities. Similarly, other providers of professional services, such as accountants and lawyers, should also be attuned to these issues and informed as to their legal duties. Malpractice insurance may not cover liability for a lawsuit of this nature because these suits can be maintained even where the quality of actual care and treatment was adequate. Further, punitive damages, which cannot be insured, may be available under the LAD. In addition to damages, a successful plaintiff may recover his or her attorney fees. In this case, that amount would be in addition to the $400,000 in damages awarded by the jury.
Also, while most health insurers do not pay for auxiliary aids such as ASL interpreters, the carrier should be contacted in particular cases to verify whether there is coverage or if the carrier would be willing to cover the cost. In the event a service provider incurs any significant costs to provide these aids or other expenditures related to improving access for disabled customers, the provider should consult tax counsel or accountants to determine whether it qualifies for tax credits or deductions available to help businesses off-set the cost of improving access to goods and services for persons with disabilities.1
Footnote
1. See, e.g., I.R.C. § 44 and § 190.
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