Doctor liable for not providing sign language interpreter

[Harold Schiffman]

Doctor liable for not providing sign language interpreter
In the Courts. By Amy Lynn Sorrel, AMNews staff. Posted Jan. 5, 2009.


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IN THE COURTS
Analyzing the impact of recent court decisions on physicians

A punitive damages verdict is enough to catch anyone's attention. But
a verdict for punitive damages in a disability discrimination case can
be a double whammy for physicians. Since such claims are not covered
under traditional medical liability insurance, any judgments would
come out of doctors' own pockets.  That is exactly what befell New
Jersey rheumatologist Robert A. Fogari, MD, when a Hudson County jury
in October 2008 unanimously handed down a $400,000 award against him
for allegedly refusing to pay for a sign language interpreter for a
patient who is deaf. Half of the award was for punitive damages.


The verdict is believed by some legal experts to be among the largest
of its kind, and has many physicians fearing it will set a dangerous
precedent and prompt similar litigation. Dr. Fogari had treated Irma
Gerena for lupus for about a year and a half, beginning in May 2004.
Over the course of about 20 office visits, Gerena claimed in court
documents that she repeatedly asked Dr. Fogari to provide a sign
language interpreter, but was rebuffed.
The Jersey City rheumatologist argued that, as a solo physician, he
could not afford the cost, which was estimated at $150 to $200 per
visit. The expense was overly burdensome given that Medicare
reimbursed only $49 per visit, according to Dr. Fogari's attorney.
Instead of hiring an interpreter, Dr. Fogari exchanged written notes
with Gerena, with the help of family members. After her diagnosis,
Gerena's treatment largely involved monthly check-ups to monitor her
medication, with no major complications, the doctor's attorney said.

Gerena made no allegations of medical negligence. But because Dr.
Fogari denied her an interpreter, she claimed she never had "any real
understanding" of her diagnosis, treatment or prognosis, and was
deprived of an equal opportunity to fully participate in her medical
care, according to the complaint. Dr. Fogari treated Gerena's
condition with steroids, but she alleged the doctor never fully
explained the risks and benefits. Gerena transferred to another
doctor. She then sued Dr. Fogari, alleging he violated the federal
Americans with Disabilities Act and the Rehabilitation Act, as well as
New Jersey's anti-discrimination law. The jury agreed, finding Dr.
Fogari discriminated against Gerena when he failed to provide a sign
language interpreter to make sure he was effectively communicating
with his patient. Dr. Fogari is appealing the verdict.

Effective communication

State and federal law generally prohibit discrimination on the basis
of disability and require physicians and other private, covered
entities to provide reasonable public accommodations to ensure
"effective communication" with patients who have disabilities such as
blindness or hearing impairment, and with their family members. But
those accommodations include a range of so-called auxiliary aids that
doctors can use, including note-takers or video or computer-based
transcription devices, which can be less expensive than an interpreter
service, said Lawrence Downs, general counsel to the Medical Society
of New Jersey. The physician organization is considering getting
involved in the case on appeal.

"We need to make sure those remain viable options for physicians. And
the courts have been careful in saying, if [doctors] can communicate
effectively and patients can participate in their treatment,
physicians have pretty wide latitude in how to effectuate that
communication," Downs said. A qualified interpreter may be required
for complex diagnoses or treatment decisions, such as a high-risk
surgery, but not necessarily for routine or maintenance care, he said.
"No one disagrees there should be effective communication. ... The
question is, how does public policy justify physicians bearing the
cost [of a more expensive interpreter service] when reimbursement
doesn't come close to covering it?" Downs asked.

Gerena had argued to the jury that the annual cost of a sign language
interpreter amounted to less than a quarter of a percent of Dr.
Fogari's yearly income. The expense may seem negligible for a single
patient, said Antranig Aslanian Jr., the rheumatologist's attorney.
"But what if you had 40 or 50 patients?" State and federal disability
and antidiscrimination laws contemplated the impact that such
accommodations would have on a smaller versus a larger practice, he
said. The courts also should consider whether medical negligence was a
factor, Aslanian said. Gerena was not required to show that anything
went wrong with her care in order to bring her disability
discrimination claim. At the same time, Dr. Fogari was prevented from
raising that defense.

Meanwhile, because disability discrimination claims typically are not
covered by medical liability insurance, physicians are left personally
liable for any judgments. That, on top of the interpreter costs, puts
additional strain on doctors and ultimately strains access to care,
Aslanian said. He added that in this case, the punitive damages --
typically rendered for intentional conduct -- were unwarranted.

"There was no question in this case regarding any malpractice or
misdiagnosis. So if a patient is properly treated, there had to be
some reasonable, effective communication," he said, noting that Dr.
Fogari and Gerena mutually agreed to communicate using written notes.

"The patient wasn't treated differently than anyone else, so how is
that discriminating?"

American Medical Association policy opposes any discrimination based
on an individual's disability. The AMA also supports legislative
efforts to clarify requirements in the Americans with Disabilities Act
regarding the provision of qualified interpreters for patients with
hearing impairment. Organized medicine continues to monitor
enforcement of the ADA provisions to assure that physician offices are
not subjected to undue burdens in their efforts to assure effective
communication with patients who are hearing impaired.

A patient's perspective
Whether effective communication exists, however, rests in the view of
the patient, not the doctor, said Clara R. Smit, Gerena's attorney.

She pointed to a 2001 New Jersey appeals court decision in Borngesser
v. Jersey Shore Medical Center that has served as a state and national
precedent, and was among the first to define effective communication.

Judges ruled that effective communication was essential during
"critical" points of the patient's treatment -- aspects that involve
significant procedures, consent, diagnoses or treatment options -- and
that the efficacy of the communication method chosen had to be viewed
from the patient's perspective. In that case, the patient was
hospitalized after complications arose from an abnormally rapid
heartbeat, during which time the hospital declined her requests for a
sign language interpreter. There were no allegations of inadequate
care. The hospital was found liable for disability discrimination.

"We as a society have determined we want to have equal access for all
patients with disabilities," said Smit, of East Brunswick, N.J. "But
even if a doctor thinks he can communicate, that doesn't mean patients
can ask questions when they want to and understand enough to really
make the decisions they need to make about their medical treatment."

Smit said the punitive damages award in Gerena's case sends a strong
message to doctors that they cannot ignore legal obligations to
accommodate patients with disabilities. In addition to her requests,
Gerena had a sign language interpreter service call Dr. Fogari to
offer its services and inform him of the law and Gerena's need,
according to court documents.

The U.S. Dept. of Justice also can enforce the Americans with
Disabilities Act. A West Virginia primary care practice in December
2008 settled a complaint that a patient filed with the government,
saying the group failed to provide a sign language interpreter or
other auxiliary aids to its patients. The group agreed to pay $5,000
in damages and civil penalties, establish nondiscriminatory policies
for providing effective communication, and train staff and post
notices on the policies.

Physicians can argue that providing such services may pose a hardship
on their practices, but rarely are such defenses successful, according
to legal experts.

Courts generally will consider a doctor's overall resources, financial
or otherwise, said Paula Pearlman, executive director of the
Disability Rights Legal Center in Los Angeles. For example, courts
will look at a doctor's income tax returns. "And in every community
there are services available," through advocacy or other organizations
to accommodate patients with disabilities, Pearlman said. Doctors also
can receive tax credits for providing such services.

"It is an added requirement," Pearlman said. "But you want to give
your patient the best possible care, and it's just the cost of doing
business."

http://www.ama-assn.org/amednews/2009/01/05/prca0105.htm

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