Jury splits its verdict in disability-bias suit


http://www.portland.com/news/york/001116verdict.shtml



Thursday, November 16, 2000

Jury splits its verdict in disability-bias suit

By KELLEY BOUCHARD, Portland Press Herald Writer

Both sides are claiming victory in a precedent-setting lawsuit that charged
two York obstetricians with refusing to provide a sign-language interpreter
for a deaf couple.

A jury in U.S. District Court in Portland decided late Tuesday that York
Women's Care Associates violated the Americans with Disabilities Act while
treating a Kittery couple dealing with a high-risk pregnancy in 1998.

But while the jury awarded Raymond McLaren $60,000 in damages, it rejected
claims that his wife, Megan Smith-McLaren, suffered disability-based
discrimination during her office visits.

The U.S. Attorney's Office is seeking additional civil penalties against the
physicians and a court order that would force them to comply with the ADA in
the future.

"We want to make sure the next person who comes in gets the services that
the law requires," Assistant U.S. Attorney Jim Moore said Wednesday.

The York case is one of only two ADA claims taken to trial by the U.S.
Justice Department since the law was passed in 1990. Most claims are settled
before they reach court, Moore said.

"This is a landmark case in that it sets a precedent that not only the
patient, but also the patient's family, deserves the protection of civil
rights law," Moore said.

Dr. Lynda Wright and Dr. Stephen Wagoner denied prosecutors' claims that
they ignored repeated requests and warnings to provide an interpreter for
the McLarens.

"We would never deny patients services," said Kenneth Pierce, attorney for
the physicians. "The allegations were that we did something terribly wrong
with Mrs. McLaren, so we feel vindicated by this verdict."

Despite the mixed verdict, advocates for the deaf believe this court
decision sends a clear message to doctors across the country.

"Although many doctors have recognized their obligations under the law, some
have resisted providing interpreters for deaf patients," said Deirdre Smith,
attorney for the McLarens.

According to prosecutors, the McLarens had difficulty understanding
physicians during visits to York Women's Care. The Maine Center on Deafness
sent letters, and Tufts Health Plan repeatedly warned the doctors that they
were required to provide an interpreter, Moore said.

The McLarens repeatedly asked for a sign-language interpreter, but none was
provided during four months of treatment.

Smith-McLaren developed gestational diabetes during her treatment at York
Women's Care. She was referred to Maine Medical Center for specialized
treatment, but ultimately chose a New Hampshire practice closer to home that
provided an interpreter. The baby was born healthy.

The defense testified during the weeklong trial that both parents could
communicate without an interpreter and were able to read lips. Pierce said
an interpreter was provided during Smith-McLaren's first visit to York
Women's Care, but Smith-McLaren said at a subsequent visit that she didn't
need one.

The defense also questioned the father's claim that he was denied an
interpreter, in part because he attended few of the visits to the doctor's
office with his wife.

"He didn't actively participate in his wife's visits and he never asked for
an interpreter," said Pierce, the doctors' lawyer. "If he had asked, we
would have provided one."

Pierce said the McLarens attended at least one visit to the New Hampshire
doctor's office without an interpreter, and the birth of the baby took place
without an interpreter.

York Women's Care hasn't decided whether it will appeal the verdict, Pierce
said.

Megan Smith-McLaren initially filed her complaint with the Maine Human
Rights Commission. She withdrew it after Brenda Maliska, a field
investigator, told advocates for the deaf that she planned to recommend that
the commission find no grounds for the complaint.

During her investigation, Maliska found that the doctor had asked
Smith-McLaren if their face-to-face communication was acceptable, and that
she indicated it was.

Maliska explained that Smith-McLaren was "ambivalent and voiced OK" to the
doctor's question even though she was "uncomfortable" with it, according to
commission documents.

The U.S. Attorney's Office filed its lawsuit on behalf of the McLarens in
January.

If a judge issues the requested court order against York Women's Care, the
doctors would be required to provide ADA training to employees, post a sign
advertising ADA services and develop a written policy on ADA compliance.

Additional civil penalties would cover the legal costs for the U.S.
Attorney's Office.