More Lawsuits Against Doctors, Hospitals Due To Senate Amendment 3215 To NDAA

by Hans Bader on December 4, 2012 · 1 comment

in Healthcare, Legal, Regulation

Earlier, I wrote about a proposed amendment to the National Defense Authorization Act for 2013, which would dramatically increase lawsuits against schools and colleges by allowing them to be sued for “disparate impact” and for punitive damages under Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. But I forgot to mention another area where the amendment, SA 3215, would have a huge impact: doctors and hospitals, which also are commonly subject to liability under Title VI.

The disparate-impact/punitive damages provision buried in the amendment several Senate Democrats want to add to the Defense Authorization bill (Amendment #3215) also would harm doctors, hospitals and other healthcare businesses by making it easier to sue them for failing to provide bilingual translators free of charge to patients. (Doctors or hospitals who lose Title VI lawsuits also can be forced to pay hundreds of thousands of dollars in attorneys fees, under the so-called Christiansburg Garment rule.)

Bilingual translation mandates imposed on doctors, hospitals and other businesses under Title VI regulations can be onerous. Here is a link to the Justice Department Title VI guidance on what providers must do to provide free bilingual translation for patients. This regulation will have a new lease on life, and lots more scary new teeth, thanks to the proposed Amendment to the Defense Authorization bill, SA 3215, which imposes punitive damages and authorizes private lawsuits for disparate impact, which previously could be enforced only, if at all, by federal agencies in administrative proceedings.

Healthcare providers are subject to the tentacles of Title VI if they accept Medicare, Medicaid, etc. — meaning they are generally subject to it. And Title VI may be about to radically expand, in ways trial lawyers will love.

Prior to this proposed amendment, which the Senate may vote on soon, doctors and hospitals weren’t subject to punitive damages under Title VI because the Supreme Court interpreted punitive damages as being barred under spending clause statutes such as Title VI, in Barnes v. Gorman (2002), and weren’t suable by private parties or special-interest groups for so-called “disparate impact”  since such disparate-impact lawsuits were barred by Alexander v. Sandoval (2001). This amendment (SA 3215) abolishes both of those limits, threatening doctors and hospitals with lots of liability. The provisions that affect hospitals and doctors are found in Section 1806 of the proposed amendment, which is reprinted at the end of this article. They can also be found on page S7233 of the Congressional Record (Volume 158).

Uno Hu December 11, 2012 at 3:27 pm

It seems counterintuitive, but probably the best thing that could happen for medicine (and doctors) now is for the law to be expanded to allow soul-crushing and practice-closing levels of non-insurable damages to be assessed against physicians who don’t have interpreters free for all of their patients, regardless of language. (The interpreter could be arranged in advance to be present at the time of the patient’s appointment; of course, if the patient doesn’t keep the appointment, just consider the lost cost of the interpreter, who would have to be paid anyway, as simply “a cost of doing business!) Its a niggling little fact, almost irrelevant, and certainly worthy of no major concern, that a medically certified interpreter (who will contract only for a minimum, usually one hour, block of time) will cost the doctor more than Medicare & Medicaid will pay for the entire simple or intermediate office visit. (After all, its only fair that the rich doctor pay, not the non-English-speaking patient who needs the service.)

Why in the world would this be good for Medicine? Because it, or something must be the straw that breaks the ever-patient camel’s back and provokes doctors into a collective job action (read that STRIKE for people who prefer fewer syllables) if they are not to be boiled alive in rules, regulations, and requirements. The water has for the last 20 years been being heated ever so slowly around Hippocrates’ disciples that they are about to boil alive with rarely a thought of jumping – this might be the last chance they have to notice what’s happening to them and take collective action to change it!

Besides, it’s so blatantly unfair, and untethered to any notions of reality, that the idea has a certain beauty all its own.

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