ADA Lawsuit victory in NJ: NOT DEAF TO 'HUMILIATION'

[Guest guest]

The following story appeared today in The Jersey Journal a local New

Jersey Daily Paper.

It's not Dwarf related, but since so many LP's having hearing

impairment or loss (And it is an ADA victory) I thought it would be an

interesting as well as inspiring read

Link:http://www.nj.com/news/jjournal/jerseycity/index.ssf?/base/news-7/122482953\

080640.xml & coll=3

NOT DEAF TO 'HUMILIATION'

Jury says doc must pay for not having interpreter

Friday, October 24, 2008

By PAUL KOEPP

JOURNAL STAFF WRITER

When Irma Gerena came down with lupus, a chronic autoimmune disorder,

in 2004, she went to Dr. Fogari, a Jersey City rheumatologist

with a checkered legal past but many strongly supportive patients.

The doctor treated her for about 20 months, prescribing steroids to

control the symptoms of the disease.

There was a hang-up, though. Gerena is deaf, and Fogari said he could

not afford to pay the $150 to $200 it would cost to provide an

interpreter for her monthly visits - especially since Gerena's

insurance only reimbursed $49 per appointment.

So with the backing of disability attorney Clara Smit, of East

Brunswick, the Jersey City native filed a lawsuit in November 2005

under the New Jersey Law Against Discrimination and the Americans with

Disabilities Act.

On Oct. 9, a jury in the Jersey City courtroom of state Superior Court

Judge Costello awarded Gerena $400,000: $200,000 in compensatory

damages and $200,000 in punitive damages.

No malpractice or diminished care was ever proven.

Smit called the case " very novel " and disputed Fogari's claim that he

could not afford an interpreter, saying he makes over $400,000 a year.

" It's the cost of doing business, just like putting in a (handicapped)

ramp, " Smit said. " It's what our statutes require, it's what our

society requires. "

Speaking by phone through an interpreter, Gerena, 38, who now lives in

New York City and worked at Bear Stearns until she was laid off last

year, said she was " very satisfied " with the verdict.

Fogari's attorney, Antranig Aslanian, of Fort Lee, called the verdict

" grossly excessive " and said the doctor will appeal.

age 2 of 2

He pointed out that there was no proof that Gerena received deficient

care, and said Fogari believed he had " effective communication, " as

required by the ADA, with Gerena's civil union partner and the

partner's 9-year-old daughter acting as interpreters.

But Smit said that since Gerena's partner, Lourdes , is also

deaf, " It was like the blind leading the blind. "

She said Gerena did understand her lupus diagnosis " but she couldn't

ask questions about what that meant " since communicating secondhand

and through written notes was " cumbersome. "

Smit argued the jury award was " completely justified " because Gerena

" experienced so much frustration, so much humiliation " when Fogari did

not accommodate her.

This is not the first brush with the law for Fogari, a former director

of the Board of Managers at the old Jersey City Medical Center.

The doctor was indicted in 1988 on charges he falsified data on drug

studies for the treatment of arthritis and that he faked studies to

scam drug companies out of $1.8 million. Fogari pleaded guilty to some

of the charges, paid almost $4 million in fines and restitution and

was sentenced to four years in federal prison.

His medical license was revoked by the state Board of Medical

Examiners in 1989, but he regained a limited license after he was

paroled in 1990. Fogari reopened his practice at Kennedy Boulevard and

St. s Avenue in 1996.

He did not return phone calls seeking comment.