Photo: Altered ArtWe 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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#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.”
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…