David C. Alexander, Director
New Jersey Jury Decides in Favor of Deaf Patient Denied Interpreter in Doctor’s Office
$400,000 Awarded In Landmark Decision
Submitted by Clara Smit, Esq.
In the largest verdict in the United States against a doctor for failure to provide a sign language interpreter, Irma Gerena, a Deaf patient of a Jersey City rheumatologist was awarded $400,000 by a jury on October 9, 2008. The jury awarded $200,000 in compensatory damages and $200,000 in punitive damages. After a three week trial before the Honorable Mary K. Costello at the Hudson County Superior Court in Jersey City, Dr. Robert Fogari will pay Ms. Gerena $400,000 plus attorney’s fees. Ms. Gerena sued Dr. Fogari for failure to provide interpreters under the New Jersey Law Against Discrimination, the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973 during a 20 month period.
Ms. Gerena began going to Dr. Fogari in May 2004. In 20 visits, she was not provided an interpreter despite repeated requests. She was diagnosed with lupus and put on steroids without the opportunity to participate and understand her medical treatment because Dr. Fogari refused to provide a qualified interpreter. The care Ms. Gerena received including risks, benefits and/or alternatives to the treatment performed, prognosis and diagnosis were not explained to her in a manner she could understand. On some visits, the doctor would write a few words back and forth on the examination table paper with Ms. Gerena’s Deaf partner, Lourdes Torres. On other occasions he used the couple’s nine year old daughter to interpret.
The couple did everything they could to try to get the doctor to provide a qualified interpreter including giving him an interpreter’s card and having the interpreter call and explain the law. However, Dr. Fogari still refused to provide her with an interpreter. Despite all of Ms. Gerena’s attempts to obtain an interpreter, Dr. Fogari repeatedly refused to provide one claiming it would cost him too much money. During the trial, Dr. Fogari, a solo practitioner, tried to defend his case claiming undue hardship. However, when tax returns were revealed, it was found that he earned $425,000 a year. Dr. Fogari finally admitted during the trial it was not an undue hardship despite the fact that he only received $49 per visit from the insurance company After experiencing the terror, frustration and emotional anguish of trying to understand her medical treatment and after the doctor retaliated against her by telling her to go to another doctor because of her request for an interpreter, Ms. Gerena decided to sue Dr. Fogari so this would not happen to other Deaf patients. She was represented in the case by Clara R. Smit, an attorney in East Brunswick who specializes in serving the Deaf. After three years of litigation and three long weeks of trial, the jury returned with the verdict against Dr. Fogari. It is hoped this will send a message to doctors across the country that they need to follow the law and provide interpreters to Deaf patients.
Ms. Gerena, Lourdes Torres and Ms. Smit are extremely pleased with the settlement and hope to see major changes in doctors’ offices across the country, in their policies and practices, as more and more of these cases are brought. Although the ADA and the Rehabilitation Act specifically require that a doctor provide reasonable accommodation, such as interpreters to the Deaf when necessary for effective communication, it is only during the past several years that Deaf people have begun to feel empowered to start bringing these lawsuits.
Communication difficulties in the past created limited access to the legal community and the courts in general for Deaf individuals. Thus, Clara R. Smit, who is fluent in American Sign Language and whose parents were Deaf, is the first attorney in New Jersey to bring these suits. Ms. Smit has already settled thirty cases against hospitals in New Jersey and Florida as well as thirteen cases against various doctors in New Jersey and Florida. She currently has a case pending against Dr. Laurie Glasser and Orthopedic Institute of Central Jersey as well as several cases pending against New Jersey hospitals including Community Medical Center, Plainfield Health Center, and Muhlenberg Regional Medical Center for failure to provide interpreters to Deaf patients.
For additional information, please contact Clara R. Smit, Esq. at 732-843-6600.
By David Alexander, Director, Division of the Deaf and Hard of Hearing
On October 2, the DDHH was pleased to be a co-sponsor of the NJ Relay’s Taste of Technology Conference. The conference, held at the Marriot Hotel in Trenton, drew more than 100 participants who were exposed to current telecommunication technology available for persons who are Deaf and hard of hearing.
Over the last several decades, we have seen remarkable advances in the field of communication technology. The technology on the market today reflects the diversity in communication strategies used by people with hearing loss. Video Relay Service, for example, enables people who are Deaf to use ASL to communicate over the phones. The Captel phone, captions the dialogue from the person called and enables people who are hard of hearing to read the conversation. Additionally, there is a variety of amplified digital phones available for people who prefer to use their residual hearing.
Today, people with hearing loss have access to telecommunication never before possible with previous generation communication technology. However, the new communication technology brings with it a new set of challenges. Employers must be encouraged to install the new communication technology in the workforce where it will benefit people with hearing loss. Additionally, people who are Deaf and hard of hearing require assistance and support to make the transition to the new technology.
DDHH and the NJ Relay are using their resources to actively promote awareness and access to the new communication technology. For additional information and/or a demonstration of telecommunication equipment for the Deaf and hard of hearing, call the DDHH office.
The deadline for the January 2009 issue is December 1. The deadline for the December issue was November 1.
Send e-mail submissions to the editor: Alan.Champion@dhs.state.nj.us. Submissions should be “text only,” in a standard word document (no pdf files). Photos, that accompany submissions are encouraged. For a style sheet, contact the editor.
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DDHH Visits Assisted Living Facility for Deaf
Submitted by Ira Hock
For years, New Jersey’s deaf community has been yearning for housing dedicated to those who are Deaf or Hard of Hearing. The DDHH recently took the opportunity to tour Valley View Assisted Living Residence located in Media, Pennsylvania, which is such a housing facility dedicated to those who are Deaf and use sign language. David Alexander Ph.D., Division Director, along with staff members Ira Hock, Traci Burton and Jason Weiland participated in the visit.
Dr. Geralyn Ponzio, who has an internal medicine practice here in New Jersey, and her nurse, Janine, collaborated with the DDHH in touring Valley View. The idea for the visit germinated from conversations between Dr. Ponzio and Dr. Alexander, upon acknowledging there are NO facilities for Deaf seniors throughout the entire state of New Jersey. Dr. Ponzio, in fact, has assisted several Deaf patients who could have benefited if this type of housing was available in New Jersey.
We were all greeted very warmly by Valley View Director Carole Surdyke (who has a Nursing Home Administrator License and a degree in social work) and Residential Services Coordinator Rachel Ketner (a social worker). Both are hearing people who sign fluently.
Valley View’s direct care staff are all Deaf except for one individual who is a CODA (Child of Deaf Adult). Some of the management staff also sign. There are 46 Deaf residents, who all appear very comfortable in their surroundings. Many residents were watching programs on the lobby flat screen television with the captions in view for all (the sound was off - not needed). Others were involved in activities such as games, crafts, and Deaf club trips.
We were informed there are plans to increase the size of the common area and install new lighting. Though the building may have been erected in the 1960s, it is decorated like someone’s home with beautiful antiques placed throughout - one small showcase had a very old “ear trumpet” that at one time was used to speak through to enhance the ability of someone to hear.
We were able to see some of the living quarters, which included a room with two beds and closets, kitchenette with microwave and refrigerator, and a bathroom with toilet and shower. The dining room, which of course is one of the more popular rooms, has a kitchen that offers an impressive variety of meals served family style.
There was one videophone installed for the residents in a semi-private area, although residents may choose to have their own if they pay for the cable. There are a few consumers with Alzheimer’s; the front door is rigged with an alarm that sets off a light signal when these residents open it, from wearing a bracelet that activates the system.
Although operating at capacity during our tour, we were informed that Valley View does accept New Jersey residents, if no Pennsylvanians are on the waiting list.
It is our hope and effort, that we will see a similar living facility in New Jersey. If anyone would like additional information about Valley View, log on to www.elwyn.org/DS/Valley_View.
The Assistive Listening Technology Loan Program
A Joint Effort of the NJ Library for the Blind & Handicapped and DDHH
Submitted by Chrissy Olsen
Assistive Listening Devices (ALD) are amplification systems designed specifically to help people with hearing loss hear in a variety of difficult listening situations. ALD’s can be connected to a personal hearing aid, cochlear implant (CI) or used with headphones, ear buds, or neckloop, to help overcome background noise and distance from the sound source.
The basic function of an ALD is to improve the “signal to noise ratio” for the listener. This means that the desired sound or “signal” – ordinarily a speaker’s voice -- is amplified, while undesired sound or “noise” is minimized.
ALD’s accomplish this by putting a microphone close to the desired sound source in order to pick up that sound without interruption or interference. This desired sound is then delivered directly to the listener’s hearing aid, cochlear implant, or other listening equipment. The closer the microphone is to the sound source, the louder and clearer the desired sound will be. The overall effect is that background noises are reduced or eliminated, making it easier to understand the sounds you want to hear.
An FM system is a high quality assistive listening device. FM stands for “frequency modulation,” and is based on FM radio technology. The range of operation for the FM systems we are using is 150 feet for the personal system, to 500 feet for the wide area system.
The ALD Lending Library has both the personal FM system, and wide area FM System available. The personal system can also be used in conjunction with a conference microphone. The wide area system can use its own microphone, or the sound system in an auditorium or other facility can be plugged directly into it. Both systems are easy to use and very portable.
Both FM systems allow the listener wearing the receiver to hear a speaker utilizing a microphone connected to a transmitter without amplifying ambient surround sounds in the environment. Various headsets and connectors are available for use with the listener’s FM receiver, depending on personal preference, other equipment (a hearing aid or cochlear implant), and the application or environment. If you have a hearing aid with a T-switch, it is recommended that an FM be used with a neckloop If you already have Direct Audio Input connectors for your hearing aids (sometimes called “boots”), these too are compatible with FM technology. If you have a cochlear implant, you may need a patch cord.
A neckloop is an accessory device that allows for the audio output from an FM receiver, or other ALD, to be magnetically transferred directly into a hearing aid equipped with a T-switch. (The T-switch, or telecoil, is a separate setting on the hearing aid.) This is a great advantage because the neckloop transmits the sound from the receiver directly into the user’s hearing aid, and/or cochlear implant.
A patch cord connects the FM receiver, or other ALD, directly into a person’s CI speech processor. However, not all CI brands and/or models have the same the size inputs, so it is important to use a patch cord that “fits” both your CI processor and the ALD you want to utilize. The ALD Lending Library has a variety of patch cords available.
FM Systems can be used most any where including, classrooms, at work, meetings, restaurants, family dinners, in the car, on a plane or trains, for TV listening, at conferences, workshops, lectures and tours, places of worship, and in auditoriums.
The Assistive Technology Loan Program is available through sixteen regional libraries, called Regional Resource Centers for the Deaf and Hard of Hearing, one of which is the NJ Library for the Blind and Handicapped located in Trenton, NJ. Simply contact any library and make arrangements to borrow and pick up the equipment you need from one of the following libraries through the inter-library loan program.
By Paul Arabas
Employment and the workplace present many challenges for people with a hearing loss. There are various views on the best way to find a job and how to survive in the work place. It is my hope that this article will provide some helpful tips for people with a hearing loss.
Three factors which people with normal hearing consider when seeking employment are a dream job (doing what you love), an appealing salary and good benefits including health care. By contrast, people with a hearing loss are happy to get a job they can do with their hearing loss. In addition, they have an additional factor to consider: When to reveal you have a hearing loss.
Each individual should decide when to reveal their hearing loss based on his or her unique situation, and comfort level. I personally prefer to disclose my hearing loss from the very beginning. Fortunately, for my current part-time job as a fiduciary tax accountant during the tax season, I was hired because of my knowledge and experience which, to my boss, was more important than my hearing loss. Some may feel that revealing their hearing loss may jeopardize their chances for getting the job. It’s a tough decision but each individual must make it based on personal knowledge and experience.
There is no single way to handle hearing loss in an employment setting. The following is a list of criteria to consider for entering and succeeding in today’s competitive work force:
P Only apply for jobs for which you are qualified.
P Focus on your skills and not on your hearing loss.
P Plan how you are going to hear at the interview.
P Psych-out your interviewer by establishing a mutually beneficial, calm atmosphere.
P Get hold of your fear by practicing stress-relieving activities – relaxation, exercise, positive thinking, or whatever works best for you.
P Take courses in resume preparation and cover-letter writing.
P Do some interviews for practice.
P Get experience through volunteering.
P Consider being your own boss by setting up your own business, perhaps starting out in your own home.
Note: Make this list your own by personalizing it and adding to it as you wish.
Some jobs may be unsuitable for most people with a hearing loss. Such jobs may involve a high level of multitasking, especially if they involve listening, jobs that involve the use of multiple portable communications devices, very fast paced jobs, jobs that require heavy telephone usage, or those as public safety officials – police officers, firemen and lifeguards, for example.
It is the employee’s responsibility to provide or request accommodations needed to perform successfully on the job. The following provides a common sense approach to these accommodations.
P Be willing to disclose your hearing loss.
P Know exactly what you need for telephone use, meetings, training, hearing a warning signal on a machine, communications with supervisors employees, and with clients.
P Research what is available as possible solutions to problems on the job related to hearing loss. This could be some type of listening device, change in behavior on your part or those with whom you work, restructuring your job or relocation of your desk or office.
P Know when to request accommodations and when to be patient.
P Advocate on the basis of being more productive or for better performance.
P Seek out tax incentives for your employer such as targeted tax credit or disabled access credit. Get details from the IRS.
P Keep a paper trail. Follow up verbal requests for accommodations in writing and keep a file should you need to file a complaint with the EEOC.
Immediately confirm all verbal communications with the person giving them. Double check all instructions in writing or with e-mail. Misunderstandings can happen. Never try to bluff on professional issues. There is too much at stake for your successful employment and promotional prospects not to mention your relationships with your co-workers and supervisors.
Consider the following suggestions:
P Keep hearing loss in perspective. Try to stay light and keep a sense of humor.
P Try to use a buddy system to help you in unstructured situations.
P Remember to say “thank you” often and show your appreciation to those who go out of their way to communicate with you.
P Be specific about communication needs. Educate others on how best to talk in a quiet place or face you when they speak.
P Remember your colleagues have needs and frustrations also.
P Monopolizing conversation is a negative coping strategy. Take time to listen to others even though it may be a struggle.
P Strive to create an atmosphere of mutual creativity,
P Work within limits of job conflict. If problems continue, consider a job change.
P Realize that office politics exist. Choose to play, defer or move on.
P Most of the above listed items came from the SHHH Journal Jan/Feb 1996 issue.
People with hearing loss often express frustration with under-employment in entry level jobs with little chance of advancement. The possibility for promotion starts on the first day on the job. It is up to us to show that we are promotion material and that we are motivated to achieve. We can demonstrate our work commitment with good work ethics that include the amount and quality of the work we perform, punctuality, attendance, good safety record, the way we react to supervision, ability to follow instructions, our flexibility, and willingness to change in today’s work world. Interpersonal skills, teamwork and creativity are also important promotional considerations. Other factors to consider are:
P Consistently upgrade your skills through company training or taking courses at a local community college.
P Keep working on your attitudes especially when you experience a change in supervision or management.
P Nip communication difficulties in the bud. Do a quick inventory of what is creating the problem. Is it acoustics, bad lighting, back-ground noise, speaker’s communications style, distance from the speaker, request for change in behavior, change in seating location or possibly an accommodation such as an assistive listening device?
P Half the battle is figuring out what we need in any given situation and then being assertive to set it up in a nice way.
P Consider developing a mentor in the workplace who can offer help, support and motivation when the going gets tough.
Some people lose their hearing after having been employed for a few years. The first experience is fear of losing your job because of deteriorating job performance due to not hearing correctly. Rather than concentrating on what can I do to cope with my hearing loss, the emphasis is all negative. Most people with a hearing loss are in denial for 5-6 years but for those who are working the average denial is about two years.
The first line of defense is to get a hearing aid or two if needed to survive on the job. Consider telephone devices to help you hear better. Joining a support group is very helpful so you can realize you are not the only person in the world with a hearing loss. Then learn about accommodations you can request from your employer that can help you perform satisfactorily.
There are people, especially women who leave the work force to raise a family or for other reasons, develop a hearing loss and later choose to return to the work force. They are willing to take any job available
because of their hearing loss. Below are some suggestions that may be helpful:
P The information under item 2- Getting a job is a good beginning.
P Doing volunteer work in the field of your choosing is a great way to get started. Many times this may lead to part-time or full-time employment.
P Consider upgrading your skills by taking courses at a local community college.
P Visit a temporary job agency to find an entry level job that may lead to full time work.