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Accommodating Physicians' Disabilities

by Attorney Frank E. Reardon

November 2001

REARDON LAW OFFICE

The Americans with Disabilities Act is a federal statute that requires physicians to accommodate the disabilities of their patients when providing treatment to them.  When a patient presents with a disability that interferes with their ability to communicate, then a physician must take efforts to facilitate the communication between themselves and the patient.  In Maine, the United States District Court recently considered the scope of what steps an obstetrical group practice should take to accommodate a hearing impaired patient. 

            In United States of America v. York Obstetrical and Gynecology, the government initiated an action against York Obstetrical and Gynecology on the grounds that they violated the Americans with Disabilities Act seeking injunctive relief, civil penalties and compensatory damages on behalf of the patient whose disability they claim was not accommodated for.  The patient whose handicap was at issue and her husband intervened in this litigation.  In addition to alleging a violation of the Americans with Disabilities Act, they also claimed that York Obstetrical and Gynecology violated another federal statute and state law.  As part of their claims, they were seeking compensatory and punitive damages as well as attorneys fees. 

            Megan Smith-McLean became pregnant in February of 1998.  She contacted an advocate for the deaf at the Maine Center for Deafness to obtain assistance in retaining an interpreter for prenatal care.  The patient advocate in turn contacted one of the physicians at York Obstetrical and Gynecology advising him that Megan would need an interpreter.  Another physician from the group practice spoke to the patient advocate and informed her that they wanted to meet with Megan and discuss her communication needs and wishes before involving an interpreter.  They decided to schedule a three hour block for Megan’s initial intake and exam and agreed to provide an interpreter for the initial visit.  The patient advocate then sent a letter confirming the agreement reached and reiterated the need for deaf individuals to have a sign language interpreter present at their medical appointments.  The interpreter was present for Megan’s first visit and a follow up appointment was scheduled.  Arrangements were made again for an interpreter to attend the second appointment. 

            In the interim, Megan contacted York Obstetrical and Gynecology complaining of high blood pressure and headaches.  The nurse she spoke with scheduled an appointment for her the following day.  Megan was not expecting to see a doctor at this visit and told the nurse that an interpreter would not be necessary if the visit was short and writing was used to communicate with her. 

            When Megan presented for treatment, she met with one of the physicians and discussed her need for an interpreter and the headaches.  Megan explained that she had an unpleasant experience with the birth of her first child because she thought decisions were made without her input and that people spoke to her with their backs turned.  Megan told the doctor that face to face communications without an interpreter would be okay but that this made her uncomfortable. 

            At some point, York Obstetrical and Gynecological determined that they would provide interpreter services to Megan for group sessions such as birthing classes that would take place at York Hospital.  However, they did not continue to provide interpreters for the remainder of her prenatal care appointments.  The York employees who interacted with Megan and her husband during her prenatal visits believed that they communications were effective, which Megan denied.  Megan was inevitably diagnosed with gestational diabetes and her care was transferred to another group practice.  At the time her care was transferred by York, they made arrangements for an interpreter to attend her first appointment with the physician who was taking over management of her care. 

            York attempted to get the lawsuit dismissed prior to trial by filing a motion for summary judgment.  York argued that the claims were barred because the patient agreed to proceed without an interpreter after her initial visit for prenatal care.  The United States argued that the patient was not required to request an interpreter and that any agreement to proceed without an interpreter was involuntarily forced by York.  The Court agreed that York would have a duty to provide an interpreter if an unequivocal statement was made by the patient that such services were not necessary.  Since the plaintiff in this case claimed she was coerced into forgoing the services of an interpreter and that she had difficulty communicating in the absence of interpreters, the Court allowed the plaintiff to proceed with her case at trial.  The Court also allowed the plaintiff to proceed with regard to their claim for punitive damages because there was evidence to suggest that York acted in the face of a perceived risk that their actions would violate federal law.  There was evidence that York was informed in writing by the patient’s advocate of the importance of providing an interpreter for the patient, yet they decided not to do so after her initial consultation. 

            At trial, the jury returned a verdict in favor of the McLarens with regard to the allegations that York violated the Americans with Disabilities Act.  With regard to the remaining counts, they found in favor of York.  The jury awarded the McLarens $60,000 in damages.  At that time, the government moved for injunctive relief and the imposition of a civil penalty based upon this violation.  The government requested a substantial civil penalty both to reimburse the government for the costs of the litigation and to serve as a deterrent in the future.  The Court found that the amount of compensatory damages awarded by the jury to the plaintiffs would serve as a public deterrent, and denied the government’s requests for an additional monetary damage award.  However, the Court decided to enter an order for injunctive relief. 

            The Court ordered York to refrain from violating the Americans with Disabilities Act or otherwise discriminating on the basis of hearing impairment or any other disability who seeks service from them.  The Court also ordered York to furnish all auxillary aids and services at no cost to persons who were hearing impaired when necessary for effective communications.  York was also required to produce a written policy for effective communications which requires them to affirmatively offer interpreters to every patient who presents with a hearing impairment whether or not they are accompanied by an individual who is authorized by the patient to interpret for them.  As part of this policy, York is required to document the offers made in the patient’s chart.  The Court ordered York to distribute copies of the new policy and to develop and implement an appropriate training program to ensure that all of its employees who have contact with hearing impaired patients are sensitive to their communication needs.  York was also ordered to post a sign stating that it recognized its legal obligations to ensure effective communications with their patients who are hearing impaired. 

            In light of the York decision, providers of health care should make sure that they too have adequate policies and procedures in place to assist disabled patients with effectively communicating when they present for treatment.  All employees of a group practice or a hospital must be sufficiently trained regarding how to accommodate patients with disabilities.  All offers for accommodations must be recorded in a patient’s chart.  In light of the conflicting claims between the parties in this case as to whether the patient was comfortable proceeding without the assistance of an interpreter, it would be prudent for health care providers to have patients who refuse such services sign a document clearly articulating this fact. 

Description of Statutory Requirements:

            The Americans with Disabilities Act provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.  Discrimination is defined as a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless such entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.  A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 

            Beginning in July of 2001 in Massachusetts, legislation was enacted which requires all hospitals throughout Massachusetts to provide interpreter services in connection with all emergency room services provided to non-English speaking patients.  The enactment of the statute was based upon the principle that clear and fast communication can mean the difference between life and death.  The statute was passed to ensure that accurate, complete and timely information is gathered in hospital emergency departments in order to provide the highest quality care and treatment. 

            The Massachusetts Department of Public health has enacted regulations for acute care providers to follow in implementing the new law.  The regulations require hospitals to designate a coordinator of interpreter services, post notices and signage informing emergency room patients of their right to interpreter services, perform an annual language needs assessment in their service areas, provide assurance that interpreters have received appropriate training, and refrain from encouraging use of family members from interpreting and prohibiting the use of minor children as interpreters.  The recommendations enacted provide detailed information about how to comply with these new guidelines, including examples of effective way to notify patients of the translation services and ways to determine the language needs of the patient population.  The recommendations caution providers to provide adequate documentation of encounters with patients who need language assistance, including documentation of the name of the interpreter and the language used to interpret, and if the services are declined, the reason for the decline and the identity of the individual who will serve as an interpreter.  Suggestions are made as to ways in which providers can continue to assess the interpreting needs of their patient population.