The Price of Disability Law

Photo: Altered Art

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.