Americans with Disabilities Act Lawsuits

As a chiropractor and health care provider you have no doubt heard about the Americans with Disabilities Act (ADA). What you may not realize is that there are attorneys and plaintiff's out there who have a little cottage industry going where they file lawsuits against doctors alleging that the provider did not comply with the ADA in caring for the patient and no malpractice policy provides coverage for such claims.

What we have seen is that attorneys for the plaintiff's basically force you to settle the case for thousands of dollars because to fight it would cost you a lot more and if you lose you must pay the attorney's fees on top of the judgment against you.

The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress.

To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Chiropractic offices fall under the Public accommodations section of the ADA. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, zoos, funeral homes, day care centers, and recreation facilities including sports stadiums and fitness clubs.

Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources.

Keep in mind that some states, like California for example, also have their own state versions of the ADA and these may be much stricter than the Federal laws.

What can you do?

First, understand that you must provide "reasonable" accommodations for anyone claiming a disability who requests that you do so. But keep in mind that this person and their attorney may not agree with your interpretation of a reasonable accommodation, demand more and if not provided file a lawsuit against you. Ideally, create a written policy (that conforms to federal and local laws) as to what you can reasonably do and will do when a prospective patient has a disability – sight, hearing impaired, etc. Then stick to your policy. Not having an office policy in practice management is always problematic.

Neither Professional Liability or a Business Owners Policy (BOP – what DC’s generally get for their offices) will provide coverage for ADA allegations of violations. Employment Practices Liability (EPL) coverage provides defense of discrimination allegations when brought by an employee. This may be included in an office policy or added as an option. In reviewing these policies, you will find that generally speaking these policies come with a $10,000 - $25,000 limit automatically with higher limit options available. While not the norm, some carriers may include or can add “third party liability” (defense & damages coverage for customers, vendors, business invitees) to their EPL form. This could provide some dollars to defend you in these cases.

This situation is another good reason for chiropractors insured with ChiroFutures to let us provide or at least give a review of the rest of your policies i.e. General Liability, Work Comp, etc. instead of leaving those with a local agent.