When most of us think about someone with a disability, we realize that interacting with them may mean giving assistance that fully able-bodied patients don’t need. To that end, public facilities of all kinds are now wheelchair-accessible, for example. If a patient were blind, we might need to accommodate a service animal and/or guide the person by the arm. We wouldn’t expect to have to pick up and carry a blind person though, if that person’s legs were not unwell. Yet that’s essentially what was expected of one physician in a case brought to our attention by Medical Justice.
The Americans With Disabilities Act (ADA) may be well-intended. In at least this case, though, it seems to have gone too far. There’s a lot of language to wade through, and courts’ interpritations are not consistent. None of this makes it any easier for a physician to practice medicine while the lawyers are practicing law.
Dr. Fogari, a New Jersey rheumatologist, saw a deaf patient at his practice. The patient communicated with him by way of notes written back and forth — a reasonable thing to do, since the patient hadn’t brought anyone to interpret for him, and a working solution… so it would seem. This makes all the more sense in that hiring an interpritor costs $150-200 per hour, while the doctor could only have billed Medicare $49 per hour for that service. Since the patient was quite capable of reading and writing, it seems reasonable to simply communicate with pen and paper, right? Yet Dr. Fogari lost and suffered a $400,000 judgement against him. To make matters even worse, a portion of that was a Punative Damage award. Most states specifically forbid an insurance company to cover punative damages, so this well-intending physician was spanked hard. At this date, it has yet to be determined if an ADA judgment is allowed to be covered by professional liability insurance. The bottom line? Seeing that patient cost Dr. Fogari $400,000 plus the time defending his practice against the allegation, and damage to his reputation. Yet refusing to see that patient might have been deemed discriminatory. It seems the ADA is proving a bit short-sighted in places.
Everyone in the medical profession wants to help their patients to be well and live the best quality of life possible. When a miscarriage of justice like this happens, it can be difficult to feel good about trying. We join Medical Justice in expressing our frustration and disappointment at the court’s judgment, and bring this to you as something to be mindful of when dealing with Disabled patients.
Presidio Insurance Solutions would also like to clarify that, on a state-by-state basis, the insurance company may be legally prohibited from paying any punative damage awards. Nevertheless, a good quality of medical malpractice coverage will protect you from the direct-out-of-pocket costs of legal defense against such a suit. For additional information on the insurability of punitive damages in the United States visit: THE INSURABILITY OF PUNITIVE DAMAGES
Call Presidio now for a free policy check up, find out where your coverages start and stop in such situations.