News & Insights

Avoiding ADA Claims: Preparation is Key

November 12, 2019

By Deborah Schroeder, J.D., Schroeder & Trahan

Avoiding ADA Claims: Preparation is Key

A recent uptick in filings of federal suits against healthcare providers for alleged discrimination under the Americans with Disabilities Act (ADA), primarily involving deaf patients or their family members, warrants attention by healthcare providers. Such claims are typically not submitted to medical review panels, as they do not involve treatment-related injuries. Furthermore, the Louisiana Patient’s Compensation Fund (PCF) is not responsible for payment of these claims. 

These suits do not center on the issue of whether the care was appropriate, but rather seek to compensate the patient for disparate treatment causing emotional distress and embarrassment, and to compensate his or her lawyer - ADA law specifically provides for the recovery of attorney fees separate and apart from damages awarded to the patient. In addition, many of the suits seek injunctive relief requiring the healthcare provider to establish appropriate procedures and protocols to provide interpreter services to deaf or other ADA-covered patients.

Such suits frequently involve long-term deaf patients or their deaf or hearing-impaired companions who may for the first time claim that they are unable to adequately communicate with their healthcare provider. The ADA requires all public accommodations (which include doctors’ offices, clinics and hospitals) to provide effective communication to the deaf and hard of hearing. What is considered effective communication will depend upon the nature and complexity of the medical problem, the need for discussion and the needs of the patient or companion (sign language interpreter, oral interpreter, cued speech interpreter or computer-assisted, real-time transcription). In some situations, note-passing may be enough, but deaf patients or companions frequently assert that they have limited education in written English. 

Even if the deaf patient is an established one who for many years has been satisfied with the care provided and the communication methods employed, be aware that “sudden” demands for interpreters must be satisfied. It is the responsibility of the healthcare provider to provide a qualified interpreter, either live or by video, for such patients. 

Recent ADA Cases

A recent illustrative case in Louisiana involved the care of a pediatric patient who had been treated for minor childhood illnesses over the course of a decade. His mother was deaf. She had been apparently content to use family members and notes to communicate with the pediatrician (use of family members is generally considered inadequate). After nine years of treatment, she appeared in the doctor’s office asking for an interpreter. The office did not have a system in place to accommodate this request. She immediately filed a federal suit as a result of her past and current interactions with the group. In another non-Louisiana case, the deaf husband of a pregnant woman recovered damages as the obstetrician and hospital had no interpreter available to explain the prenatal care and labor process. 

Therefore, it is suggested that healthcare providers be proactive in their approach to all patients who are covered by the ADA. In addition to deaf patients, it is important to make arrangements for those who do not speak fluent English. Here are suggestions for healthcare providers to prepare for such situations:

  1. Make arrangements with translation services now, even if you do not currently have a patient who qualifies under ADA. Check with the hospital to see what services are in use at the facility. 
  2. Determine the patient’s actual needs. There are multiple methods of communication employed by deaf and hearing-impaired patients. Find out what method each patient uses. Check the back of any insurance, Medicaid or Medicare card for translator services. Many programs have interpreters available and pay for the service.
  3. DOCUMENT, DOCUMENT, DOCUMENT. If the record must be examined a year later, can you tell what was done, by whom and why?
  4. Train your staff and create a policy on handling ADA patients/companions.
  5. If a patient arrives with a private translator, confirm their qualifications and fees before agreeing to use their services. The patient is entitled to a “free” translation service but not necessarily to one of their own choosing. 
  6. There are video translation services available for relatively nominal fees, which through usage of tablets or other devices provide sign and language interpreters for even the most unusual needs - such as Mandarin sign language! If you choose to use one, make sure your internet signal is secure and strong enough to support the system.
  7. Preparation is key to successfully avoiding suits. Make sure the interpreter service is available at the time of the visit before scheduling the patient. You cannot refuse to treat the patient based on the office’s lack of such services. 

Even if there is a failure of the procedure (the interpreter is late, the device does not work, etc.) the availability of the services and the fact that a policy exists will likely defeat a claim of intentional discrimination. A recent claim against a hospital was dismissed as the patient could not show intentional discrimination. The hospital’s system did not function correctly, but the fact that there was a system on which the staff was trained and quick action was taken to rectify the equipment failure resulted in dismissal of the ADA suit. Good faith action to comply with the law is essential to avoid a claim. 

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