A physician was found to have violated the federal Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD) by failing to provide a deaf patient with an interpreter, and was ordered to pay $400,000, including $200,000 in punitive damages, to the plaintiff. The plaintiff had lupus, a chronic inflammatory disease, and her primary care physician referred her to a rheumatologist, Dr. Robert Fogari, for treatment. The plaintiff was deaf and had poor communication skills, including a limited ability to use written English. During the medical visits, Fogari sometimes would exchange written notes with Gerena’s partner, who had better written English skills than Gerena, or communicate through the couple’s 9-year-old daughter.

The plaintiff 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, claimed he could not afford the $150 to $200 per visit an interpreter would charge when he was being reimbursed only $49 per visit by the plaintiff’s medical insurer. The plaintiff continued her treatment with Dr. Fogari for nearly two years without the use of an interpreter and claimed that she continued to see him because she was referred to him by her primary care physician and because of her anxiety over her worsening symptoms. Even so, she claimed she was deprived of the opportunity to participate in and understand her medical situation and the treatment she was receiving, as well as any risks, and alternatives that might be available to her. After the plaintiff repeatedly requested an interpreter, Dr. Fogari told her to go to another physician. She 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 court relied on Borngesser v. Jersey Shore Medical Center, 340 N.J. Super. 369 (App. Div. 2001), in considering when a hospital or doctor must provide “auxiliary aids and services” to a patient. The court required a fact-sensitive inquiry to differentiate between critical points in treatment and routine care. The court found that “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, but might not be necessary for routine care, such as taking a blood-pressure reading.