Strong Medicine

You might recall that I recently praised the NY Times for its great blogs. I need to qualify that praise after reading an entry in today’s Freakonomics blog taking issue with the “unintended consequences” of the Americans with Disabilities Act. Stephen Dubner writes about a verdict in a recent ADA lawsuit where a physician had to pay damages to a deaf patient for failing to provide a sign language interpreter. Dubner quotes details of the case from an obviously biased website that advocates for physicians. Dubner’s source bemoans the fact that interpreters are expensive and defends the physician for communicating with the patient via written notes. Fortunately, a little Googling unearths a more impartial recounting of the facts behind the case.

Dubner goes on to say that physicians will be less likely to serve patients with disabilities because of trial verdicts like this one, “[i]n which case a law designed to prevent discrimination will, yes, encourage discrimination.” It’s an argument I’ve heard before and it’s a cop-out; a weak excuse for softening laws like the ADA. The ADA is unique among federal civil rights laws in that it places affirmative duties on businesses both large and small. It’s not enough to simply be well-meaning; the business owner sometimes has to make reasonable accommodations for a customer or client. But this obligation is not without limit. Businesses don’t have to provide accommodations that would place an undue hardship on the business. What constitutes an undue hardship? That’s why we have juries.

Dubner wants to frame big jury verdicts as exacting an unintended “price of disability law”. But in the cases he cites, the law worked as it was supposed to. Civil rights laws without enforcement mechanisms are only so much happy talk. Physicians who refuse to see patients with disabilities are only creating more business for other physicians who rightly see accommodations as just another cost of doing business.

The only thing more troubling than Dubner’s post were the reader comments, which are illustrative of why we need laws like the ADA.