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Doctor held liable for punitives for treating patient competently



I don't usually post about trial court decisions -- they have a high variance, that is typically narrowed on appeal. They are often the fodder for demagogic politicians of every stripe. I usually take them with multiple grains of salt.

But this New Jersey Law Journal report is, I think, worthy of larger notice. It describes a jury verdict from Hudson County, for $400,000, against a physician who treated his patient competently. His failing was to refuse to hire, at his own expense, an interpreter so that he could adequately communicate with his deaf patient. Why didn't the patient come with her own interpreter (hired at her own expense)? Because she doesn't have to, according to federal law as interpreted by the courts. Her lack of verbal skills is a disability that others must palliate at their expense.

More obscene still is that the defendant's malpractice liability insurance does not usually cover such liability, because the care actually given to the patient was quite appropriate.

The plaintiff claimed that she repeatedly asked her Jersey City rheumatologist to hire an American Sign Language interpreter. The doctor responded that as a solo practitioner, he couldn't afford the estimated $150 to $200 per visit an interpreter would cost, given that Medicare paid him $49 for each visit. He treated his patient (who declined to visit another rheumatologist, perhaps one who knew American sign language) for lupus for about 20 visits, stretched out over 20 months, occasionally exchanging written words with the patient's civil union partner [wait: if they were lovers, how come the partner didn't understand and use American sign language?] or verbal instructions via the "couple's" 9-year-old daughter (who apparently couldn't use sign language either -- it just gets stranger and stranger). But the patient claimed she never really understood the side-effects (swelling of her treatment), and that when she insisted the doctor was obliged to pay for an interpreter (she had an interpreter phone the doctor, self-serving legal advice if ever any has been dispensed), the doctor became angry and insulted her, forcing her to seek treatment elsewhere. Her next doctor was able to communicate with her, and ceased the treatment, since it turned out that the patient didn't want the swelling and preferred a different treatment. Essentially her lawsuit sounds in battery (touching of a patient despite the lack of informed consent) -- fine, except that the patient apparently was advised to seek out other providers and insisted on returning time and again to this one. I'm not excusing poor bedside manner or countenancing insults (though I have no evidence that any insults were uttered) --

During a three-week trial (!), the rheumatologist's argument that it would have been an undue hardship to pay an interpreter who cost more than the income he received for each visit was apparently undercut by the fact that the doctor's tax returns showed he earned over $400,000 a year. Sorry, but how did this evidence get in? Unless the doctor is obliged to treat handicapped people at a loss, why is his personal wealth relevant here?

The jury obviously doesn't share my disbelief. Fully half of the $400,000 verdict against the doctor was for punitive damages. To repeat, the sum is not insurable, apparently.

So, notice to all professionals out there: don't get wealthy, or you may be obliged to "share the wealth" with a disabled person. Can't professionals post a sign in their office that reads "Sorry, we decline to treat you if we must spend more money on your visit than you or your agents will pay us"? Apparently the answer is "Yes, such a sign is OK if the patient speaks only Slovak (since that is not a "disability", at least not yet), but not if the patient is blind or deaf.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.