A few years back I wrote a column about a New Jersey rheumatologist named Robert Fogari, MD. he was written up in the AMA News for being sued by a lupus patient, Irma Gernea…but not for malpractice. After seeing Dr. Fogari for 20 separate visits over 18 months, Gerena “made no allegations of medical negligence.” Rather she sued claiming a violation of the Americans with Disabilities Act because the doctor refused to hire a sign language interpreter to accommodate her deafness. Ms. Gerena, who persuasively claimed that she was the victim of inadequate communication regarding her care, corresponded with her doctor via written notes with the help of family members who were always present. The cost of the specialized interpreter would run according to the defense, $150-$200 per visit, while the reimbursement to the physician would be a Medicare-blessed $49. Result: the jury found for the plaintiff to the tune of $400,000, half of which was for punitive damages. Ms. Gerena’s attorney argued that the annual cost of the interpreter amounted to a tiny fraction of Fogari’s income, asking the court therefore to accept the notion that the patient had a claim to part of the doctor’s income without proving any material damages. So because Ms. Gerena was deaf, it was decided that she should be afforded more rights than the business owner unlucky enough to render her an apparently adequate service, despite obviously adequate communication rendered by family members present.
Uncle Sam also regards not speaking English as a disability. Title VI of the U.S. Civil Rights Law of 1964 prohibits hospitals, physicians, and other healthcare providers receiving “federal financial assistance” from discriminating against patients who do not speak English. Previously Medicare B payments were considered to be under insurance contracts, and therefore not subject to Title VI. However in 2010, the law was re-written to define Medicare B payments as federal financial assistance, making doctors who receive them subject to Title VI, and that means they have to pay for language assistance.
So who has to shell out for a translator? The HHS Office of Civil Rights looks at the number of “limited English proficiency” (LEP) patients, how often the LEP’s are seen, what the LEP’s are seen for, and how much the doc has to spend to communicate with the LEP’s. The physician might also be responsible for translating foreign documents and providing phone translation, and referral to another physician’s office may only be done if there is no discriminatory intent and it the referring doc makes sure that the receiving doc is language assistance capable for that patient. And yes, there are also numerous state laws with which to comply (good luck, California). “While the HHS makes allowances for small offices with limited resources, any medium to large size hospital is expected to provide translation services and written materials 24/7.” So whether it is a private office or a hospital, the onus is on the English-speakers to provide for the LEP’s at their own expense. Or, as with so much else in medicine and elsewhere, the onus is on those who do the work to accommodate those who merely express a need, under threat of legal force.