by Donna Vanderpool, MBA, JD

Ms. Vanderpool is the Vice President of Risk Management at Professional Risk Management Services in Arlington, Virginia.

Funding: No funding was provided for the preparation of this article.

Disclosures: The author is an employee of PRMS Inc., a risk-management consulting company for healthcare providers.

This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and on-site risk management audits, and other resources offered to health care providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers might provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other health care professionals so “clinician” is used to indicate all treatment team members.

Innov Clin Neurosci. 2019;16(11–12):40–42

Question

A colleague of mine was sharing that she had a patient who is hearing-impaired insist that my colleague hire—and pay for—an interpreter to assist in the physician–patient communication process. It occurred to me that I do not really know the legal rights of patients with disabilities.  What should I know?

Answer

The Americans with Disabilities Act (ADA)1 is a federal law, enforced by the Department of Justice, prohibiting discrimination2 on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Note that states have also enacted their own laws with similar protections. Importantly, the definition of “public accommodations” includes healthcare professionals’ offices.3 Accordingly, physicians cannot exclude or otherwise discriminate on the basis of a disability and are required to reasonably modify their policies, practices, and procedures to allow people with disabilities to participate. There can be multiple impacts of the ADA law. In Part 1 of this article, we will cover patients who are hearing-impaired. In Part 2, we will cover patients with mobility impairments, visual impairments, and service dogs.

Patients Who Are Hearing-Impaired and the ADA

Under the ADA, healthcare professionals are required to ensure effective communication with patients through reasonable accommodations, and this might require the provision of an interpreter.

Achieving Effective Communication

Effective communication is defined as “whatever is written or spoken must be as clear and understandable to people with disabilities as it is for people who do not have disabilities.”4 While physicians are not required to make unduly burdensome and fundamental alterations in their practices to accommodate patients who have hearing impairments, they must make reasonable modifications or otherwise provide auxiliary aids and services5 at no additional cost to the patient to comply with the law. Physicians must also take adequate steps to ensure the privacy of the patient’s health information.

Using family members as interpreters might impede both effective communication and physician/patient confidentiality. Psychiatrists should keep the following points in mind when working with patients who are hearing-impaired: 1) family members might not be able to accurately and meaningfully express complicated psychiatric issues, 2) family members might be part of the patient’s clinical concerns, and 3) confidentiality issues. Moreover, deaf patients’ attempts at lip reading may not be successful and exchanging written notes might not be sufficient. At least one court has found that, while an individual with a disability cannot insist on a particular auxiliary aid, there can be genuine disputes regarding whether the aid is effective based on the specific circumstances of the case. In that case, the physician’s motion for summary judgment was denied, and the patient was allowed to present evidence on whether note-taking was an acceptable auxiliary aid for the hearing-impaired father of a 15-month-old boy with chronic ear infections.6

Undue Burden

Under the ADA, a physician would not be required to provide such accommodations if it was demonstrated that taking those steps would fundamentally alter the nature of the services being offered or would result in an “undue burden, i.e., [a] significant difficulty or expense.”7 The regulations state that, in determining whether an action is an undue burden, various factors should be considered, including the nature and cost of the action and the overall financial resources available.8 However, with rapid advancements in technology, particularly in terms of video-conferencing and high-speed Internet, it might be increasingly difficult to uphold successful undue burden arguments.

Discrimination is Separate from Negligence

Physicians should also recognize that even if a patient who is deaf receives effective medical treatment, there might still be a violation of the ADA if the physician did not “effectively communicate” with that patient. In Aikins v. St. Helena Hospital,9 the court found that adequate medical treatment does not replace the physician’s obligation to provide effective communication under the ADA. Mrs. Aikins, an individual who is hearing-impaired, and the California Association of the Deaf (CAD), alleged that St. Helena Hospital and Dr. Lies failed to communicate effectively with Mrs. Aikins during her now-deceased husband’s medical treatment. Mrs. Aikins requested an interpreter to facilitate communication with Dr. Lies. Instead of an interpreter, the hospital provided an ineffective finger speller. Allegedly, Mrs. Aikins was unable to effectively communicate with Dr. Lies or other hospital staff until her daughter became available to interpret. Mrs. Aikins alleged that Dr. Lies and St. Helena Hospital violated the ADA; St. Helena asserted that it complied with the ADA by providing the finger speller and adequate medical care. The court found that adequate medical treatment is not a defense to a claim that a physician failed to provide effective communication.

The court in Naiman v. New York University10 also found that a physician’s effectiveness in providing medical treatment to a patient who is hearing-impaired does not prevent the patient from bringing an ineffective communication claim under the ADA. Mr. Alec Naiman, an individual who is hearing-impaired, was admitted on several occasions to New York University Medical Center and requested an interpreter on each occasion. On one occasion, the center provided Mr. Naiman with a person minimally capable of communicating in sign language and, on other visits, Mr. Naiman alleged that the center either did not provide an interpreter in a timely manner or did not provide an interpreter at all. New York University argued that Mr. Naiman did not have a valid claim under the ADA because he received adequate medical care from the medical center. The court ruled in favor of Mr. Naiman, holding that a claim under the ADA alleging ineffective communication relates to the patient’s exclusion from participation in his or her treatment, not the adequacy of the treatment itself.

Finally, a patient who was deaf was awarded compensatory and punitive damages in the amount of $400,000 for a physician’s failure to provide an interpreter.11 The physician had treated the patient for lupus for about 18 months, communicating through the patient’s civil union partner and their nine-year-old daughter or through written notes. The patient, after repeatedly requesting a sign language interpreter, eventually selected another physician and began a new treatment regimen. The new physician discontinued the previously prescribed steroid, and the patient noticed that the swelling in her face had resolved. The patient then alleged that because no sign-language interpreter had been provided, she had misunderstood that the swelling was a side effect of the medication but rather had believed it to be a symptom of her illness. She further claimed that she was deprived of the opportunity to fully participate in her treatment.

While the patient in this case apparently received adequate care, the misunderstanding regarding the medication side effect versus the symptoms of the illness is what prompted the suit and speaks directly to the need for truly effective communication.

Proactive Steps

Physicians should consult with private counsel and/or an accountant to explore means of compliance and legal ways in which a medical practice might absorb the costs of auxiliary equipment and services required so as to ensure effective communication with patients who are disabled.

Acknowledgment

The author wishes to thank Salima Ali, JD, who wrote the original version of this article published in 2012.

References

  1. 42 U.S.C. § 12101. Americans with Disabilities Act of 1990.
  2. 42 U.S.C. § 12182. Prohibition of discrimination by public accommodations.
  3. 42 U.S. Code § 12181. Definitions.
  4. U.S. Department of Justice. ADA Best Practices Tool Kit for State and Local Governments. https://www.ada.gov/pcatoolkit/chap3toolkit.htm. Accessed December 3, 2019.
  5. 42 U.S. Code § 12103. Additional definitions.
  6. Majocha v. Turner, 166 F.Supp.2d 316 (W.D. Pa. 2001).
  7. 28 CFR § 36.303. Auxiliary aids and services.
  8. 28 CFR § 36.104. Definitions.
  9. Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994).
  10. Naiman v. New York University, 1997 WL 249970 (S.D.N.Y.), 1997 U.S. Dist. 6 A.D. Cases 1345 (10 NDLR 39).
  11. American Medical Association. Doctor liable for not providing sign language interpreter. https://amednews.com/article/20090105/Profession/301059973. Accessed December 3, 2019.