A Hudson County, New Jersey, jury has held that a physician violated the federal Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) in failing to provide a deaf patient with an interpreter. Following a three-week trial, the Hudson County jury awarded the patient $400,000, including $200,000 in punitive damages.
The plaintiff, Irma Gerena, had lupus, a chronic inflammatory disease with joint pain or swelling as one of the most common symptoms. Her primary care physician referred her to rheumatologist Dr. Robert Fogari for treatment. Gerena was deaf and had poor written English skills. During the medical visits, Fogari sometimes would exchange written notes with Gerena’s civil union partner, who had better written English skills than Gerena, or communicate through the couple’s 9-year-old daughter.
The plaintiff claimed she was deprived of the opportunity to participate in and understand her medical situation, the treatment she was receiving, as well as the risks and alternative approaches available to her. Gerena asserted that she repeatedly asked Fogari to hire an American Sign Language interpreter in order to help her communicate during her medical visits. She even gave him an interpreter’s business card and had the interpreter call the doctor to explain the law to him. Fogari, a solo practitioner, maintained he could not afford the $150 to $200 per visit an interpreter would cost when he was being reimbursed only $49 per visit by the plaintiff’s medical insurer. Despite the lack of an interpreter, the plaintiff maintained she continued her treatment over the course of 20 months with the doctor because he was referred by her primary care physician and because of her own uncertainty and anxiety over her worsening symptoms. Eventually, due to the repeated requests for an interpreter, Fogari told Gerena to go to another physician.
Gerena sued the doctor for violations of the ADA and the New Jersey LAD, and the jury awarded her $400,000, including $200,000 as punitive damages.
The leading New Jersey decision on when a hospital or doctor must provide “auxiliary aids and services” is an appellate court case, Borngesser v. Jersey Shore Medical Center, 340 N.J. Super. 369 (App. Div. 2001). Borngesser also involved a request for a sign language interpreter. The court required a fact-sensitive inquiry to differentiate between critical points in treatment and routine care. “Auxiliary aids and services,” such as interpreters, video displays and note takers, are necessary to enable “effective communication” during critical points when, for example, taking a patient’s medical history, explaining a course of treatment and obtaining informed consent. Such aids and services might not be necessary for routine care, such as when taking a blood-pressure reading.
As the Gerena verdict shows, physicians and hospitals unprepared to deal with situations where patients may request and require an interpreter may face potentially significant exposure. Jackson Lewis attorneys are available to answer inquiries regarding the requirements of the ADA and the New Jersey LAD, as well as to provide guidance in your efforts to limit the risk associated with this verdict.
