The Price of Disability Law

We wrote a column a while back about a variety of powerful unintended consequences.

One example was the Americans With Disabilities Act, and we told the story of a Los Angeles orthopedic surgeon named Andrew Brooks. When a deaf patient came to him for a consultation, he realized that the A.D.A. required him to hire a sign-language interpreter for each visit if that’s what the patient wanted. The interpreter would cost $120 an hour, with a two-hour minimum, and Brooks wouldn’t be reimbursed by the insurance company:

That would mean laying out $240 to conduct an exam for which the woman’s insurance company would pay him $58 — a loss of more than $180 even before accounting for taxes and overhead.

Brooks saw the patient and paid for the interpreter out of his pocket; fortunately, she didn’t need surgery. But the incident made him conclude that if doctors have such a strong financial disincentive in such a case, “this kind of patient will end up getting passed on and passed on, getting the runaround, not understanding why she’s not getting good care.”

One can expect Brooks’s prediction to come true a bit more often in light of a recent lawsuit in which a New Jersey rheumatologist was required to pay a $400,000 settlement, including punitive damages, to a deaf patient. From MedicalJustice.com:

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.

Medical Justice, which is dedicated to “relentlessly protecting physicians from frivolous suits,” does find a silver lining in the disability law:

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, it is hard to believe that this kind of lawsuit won’t make more doctors do their best to avoid seeing similar patients in the future. In which case a law designed to prevent discrimination will, yes, encourage discrimination.

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  1. hall monitor says:

    On a side note…deaf people can READ and WRITE. I would hate to be forced to discriminate, but I have to think a (legal?) compromise can be reached.

    Hall Monitior
    http://detentionslip.org

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  2. Alex says:

    I agree with commenter #1. Simply using a writing pad seems to be a perfectly fine alternative. Why was that an issue?

    That’s would be like a wheelchair bound person suing for having to use a ramp, rather than the building providing porters to carry their chair up stairs.

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  3. Kathy A. says:

    I’m stunned that written notes were a problem. Frankly, I’d love to have all my doctor’s instructions in writing.

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  4. Quill says:

    It’s not just bad for the disabled. Such settlements push up the cost of malpractice insurance for all doctors, who pass those costs on to their patients.

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  5. ChrisD says:

    Why should deaf people have to compromise on using written paper when sign language is their equivalent of speech.

    We should all have equality of opportunity to see a doctor and ‘talk’ with them – whether that’s with verbal language or sign language.

    People need to get past prejudice against people with disabilities because it costs too much or they are too lazy to help such people have access to the same care we all enjoy access to.

    Doctors, like every other business/provider, should not be able to discriminate on the basis of disability.

    Only then can society move past its stereotypes and prejudices towards disabled people.

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  6. ChrisD says:

    @Alex … a wheelchair using a ramp and suing is not even close to being related to this situation.

    If you were deaf and could understand sign language – you would want to use that as well.

    I’m shocked that people think a writing pad is ok. What would you do if your doctor refused to speak and wrote everything down? You’d get annoyed as well.

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  7. atworkforu says:

    Read the second case… the doc who communicated with the patient via writing notes lost a 400k suit for discrimination.

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  8. John Faughnan says:

    The real problem is not necessarily the law, but rather the combination of an unfunded mandate and the contractual and legal limitations on physician cost shifting.

    So if physicians could raise their rates across the board this would simply be an unfunded mandate, hence an indirect tax.

    Since they can’t (insurance company contracts limit extra billing) this law is an unfair tax. It falls disproportionately on physicians directly.

    It really is a bad law.

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