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

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.

hall monitor

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


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.

Kathy A.

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


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.


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.


@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.


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

John Faughnan

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.


#4: Why would the cost of a discrimination lawsuit drive up malpractice insurance premiums?


As usual there are 2 sides to this story:

"Irma Gerena began going to Dr. Fogari in May of 2004 and throughout twenty doctor visits with his office was never provided with an interpreter despite repeated requests for same. Ms. Gerena was diagnosed with Lupus and put on steroids all without the opportunity to participate and understand her medical treatment as Dr. Fogari refused to provide a qualified interpreter. Little of the treatment Irma underwent under Dr. Fogari's care, including risks, benefits and/or alternatives to the treatment performed, prognosis or diagnosis were explained to her in a manner she could understand. On some visits, the doctor would write a few words back and forth on the examination table paper with Ms. Gerena's deaf partner, Lourdes Torres. On other occasions he would use the couple's nine year old daughter. The couple did everything they could to try to get the doctor to provide the qualified interpreter including providing the doctor with an interpreter's card and having the interpreter call to tell him about the law. However Dr. Fogari still refused to provide Irma with an interpreter. Despite all of Irma's attempts to request an interpreter, Dr. Fogari repeatedly refused to give her one claiming it would cost him to much money. During the trial Dr. Fogari, a solo practitioner tried to defend his case claiming undue hardship but when tax returns were provided it was found that he made $425,000 a year. Dr. Fogari finally admitted during the trial it was not an undue hardship despite the fact that he only received $49.00 per visit from the insurance company.

After experiencing the terror, frustration and emotional anguish of trying to understand her medical treatment and after the doctor retaliated against her by telling her to go to another doctor because of her request for an interpreter, Irma Gerena decided to sue Dr. Fogari. She did this so this would not happen to other deaf patients."


Ayn Rand

Thus we see the true cost of government intervention and regulation. The road to hell is paved with good intentions as they say. Now maybe people will understand the conservative mindset when they object to similar measures. Of course horror stories such as these scenarios were derided as scare tactics when the ADA act was being debated. Who's scared now?


I don't get why you say the ADA was designed to prevent discrimination.

Life discriminated against disabled people. The ADA just commands everyone else to mitigate the effect of natural discrimination.


All I can say is ... I hope I don't go deaf one day.


I looked up the facts - as noted by Brian in 10 above. My wife has a master's in hearing impaired education and we both believe the results would have been different if a) the partner was hearing and could communicate with the patient or b) the family member was not a 9 year old child. A 9 year old is simply not old enough to rely on for medical information.

It's normal for deaf people to rely on family to deal with the hearing world. In many cases a 9 year old is appropriate but not in a medical case involving a serious matter like lupus.


A Doctor's office is a BUSINESS. At the point when serving a customer COSTS the business money, they cease to be a customer.
While I agree that the deaf should be able to speak to their doctor, I do not believe the cost should land on the doctor. It should actually land on the insurance company, seeing as how it is a necessary cost stemming from their medical care. Yes premiums will go up, but we deal with unecessary price jacking now. Why not take a small hit for the right thing?


Thanks Ayn. I'd be far more comfortable in a world where regulated anti-discrimination laws didn't exist and doctors could save a few hundred dollars. Maybe we could find a camp to put all the disabled people in so they wouldn't interfere with the market regulating itself...


At #8 - agreed. This isn't descrimination by the doctor, simply an unfunded law that as a result does the opposite of what was intended.

And @Kathy - the problem with written notes is that they're from a doctor - it'd be impossible to read them!


With the UK's socialized medicine this isn't an issue - interpreters are provided for across hospitals/groups of hospitals etc by the NHS administration.

I do note however that this has been done by setting up video links to qualified interpreters accessible from hospitals & centres for the deaf....

With modern technology, surely a web cam based service to a remote interpreter would deliver a cost effective service for US doctors? Business opportunity there for someone!


@ChrisD -- I honestly can not believe you think this is OK. You're asking the doctor to provide a service that actually costs the doctor money.

The doctor explained that the cost of hiring an interpretor would exceed the revenue from the visit and offered a proposed alternative. That sounds totally reasonable. The lady should have gone somewhere else if she was unsatisfied.


OR... the patient could have found another doctor! Perhaps one that provided an interpreter. OR they could have made arrangements to bring their own interpreter. Either of which would imply that the person be RESPONSIBLE for their own care. Personal responsibility... what a concept...