Physicians treating patients with hearing impairments may be responsible for providing interpretive services for such patients in the office at no cost to the patient. This requirement often comes as a surprise to the physician, especially knowing the cost of an interpreter usually exceeds the reimbursement they receive for the medical service rendered.
On October 9, 2008, in the case of Gerena vs. Fogari, the Hudson County jury awarded a $400,000 verdict for a deaf patient whose physician refused to provide an interpreter. Irma Gerena sued Dr. Fogari under the federal American with Disabilities Act of 1990, which applies to recipients of federal funding, including hospitals and doctors whose patients are covered by Medicare and Medicaid. She also sued under the New Jersey Law Against Discrimination (LAD) N.J.S.A. 10:5. Fogari treated Gerena for Lupus over a period of 20 months. He communicated with Gerena through her 9-year-old daughter or sometimes exchanged written words with her civil union partner who had better English skills.
Gerena claimed that for the most part, she was deprived of the opportunity to participate and understand her medical condition and the treatment that the physician provided including the risks and alternatives. She said she was never sure about her illness and was fearful of her worsening symptoms. Gerena allegedly asked Dr. Fogari to get an interpreter and handed him a business card of the interpreter who could call him to explain the law to him. Dr. Fogari advised her to go to someone else because of her repeated requests. He claimed that as a solo practitioner, he “couldn’t afford the estimated $150 to $200 per visit an interpreter would cost.”
During the trial, the physician argued that it would be an undue hardship to pay an interpreter when he was being reimbursed only $49.00 per visit by the patient’s insurer. His tax returns however, indicated he had earned over $400,000 a year. Half of the award in this case was for punitive damages. In addition, the malpractice carrier for the physician did not defend the case and would not cover the liability, stating that quality of care was not an issue.
The ADA of 1990 generally prohibits discrimination on the basis of a person’s disability and applies to services rendered among other places in private physicians’ offices. One of the central provisions of the act is to provide reasonable accommodations so persons with disabilities can have the same access to services offered to persons without disabilities. The ADA has been interpreted to require physicians to provide effective means of communication to their hearing-impaired patients through auxiliary aids and services, including interpreters, notes, other written materials and telecommunication devices. In addition, the physician may not impose a surcharge on the hearing impaired patient for the provision of such auxiliary aid or services.
The ADA does not require physicians to provide and /or pay for a live interpreter for each and every patient encounter or when it causes an undue burden. By definition, an undue burden is something that involves significant difficulty or expense. Apparently, it is not considered an undue burden if the cost of the auxiliary aid or service exceeds the amount the physician is reimbursed for treating the patient as in the case of Gerena vs. Fogari.
As a practical matter, the physician should consult the patient to determine the most appropriate auxiliary aid or service to use. While the final choice of alternatives is a determination made by the physician, a mutual agreement will always yield a better result as long as the physician is mindful that the ultimate goal is effective communication. In a number of instances, the use of a pen and paper will suffice. In other instances, the use of a family member or friend may be acceptable to the patient; however, with more complex matters, the use of a qualified interpreter may be justified. The challenge is finding the most effective method of communication.
Resources
http://www.njrid.org/; NJ RID, Inc. - New Jersey Registry of Interpreters for the Deaf.
www.dhisnyc.com; Deaf and Hard of Hearing Interpreting Services, Inc.; 275 7th Avenue, Suite 1607, New York, NY; 212-647-1092.
http://www.aslirs.com/; ASL Interpreter Referral Service, Inc.; P.O. Box 1161, Somerset, NJ 08873; 800-275-7551.