Dear LindaMF;

This could be a very interesting Title III plaintiff action. Great care needs to be taken to make sure that the plaintiff has standing under the ADA. If the standing of the patient was questionable such a case could create some very bad case law. However, if we look at such a case from the context of a person's who has chronic pain due to an impairment that clearly substantially limits the person's ability to engage in one or more major life activities then we have a very interesting case.

The question that comes to mind, not for us to answer but for a defendant to try and answer, is why would a physician refuse to treat such a patient other than because of discriminatory attitudes? If the patient has a real medical impairment, has need of health care, and a physician refused to provide that care there would need to be a reason that is consistent with medical ethics for refusing to treat such a patient.

Because it is possible for some creative defense lawyer to come up with a reason for denial of care it is important in such a case to identify other ADA violations at the office of such a physician. So if this chronic pain patient also needs grab bars to get onto and off of a toilet, and there are no grab bars, or if there is difficulty with steps and there is one or more steps to enter the office, then there is a case that cannot be lost by a creative lie by the physician.

I would be very interested in helping you or your members of your group put together such a case and to begin showing physicians that they cannot discriminate against patients simply due to them having chronic pain syndromes.

Sincerely yours,

Fred

Frederick A. Shotz
ADA Consulting Associates


On Sunday, February 3, 2002, at 03:18 PM, L D Misek-Falkoff wrote:

Hi Fred:
 
The situation fits (passes the tests) of all your focussing "ifs." Would this be  (ADA) Title III? 
 
Comment: it is amazing the humiliation that occurs too often regarding pain patients.  On chronic pain and other lists there is discussion of sub-standard treatment all too often.  One of my interests is the notion of the category "invisible disabilities"  and how it can be exploited to discriminate not only unlawfully but inhumanely. For example, in a given setting there is often someone who knows (the disability) even if others don't, and can take serious advantage. Anyway, before I go on too much here on a clearly complex topic not addressable quickly, I sure appreciate your shrewd and comprehensive post, and now if you or others have any pointers to the ADA or any readings etc. that would be great. I will look around in the case law and post again.
 
A good Sunday to you, and beyond, 
 
:) (smiles) LindaMF.  
----------
Individual e-post from:
Dr. L. D. Misek-Falkoff, Speaker, and Chronic Pain Caucus Chair of
The National Disability Party http://www.disabilityparty.com . bio (about)
http://www.yahoogroups.com/group/pain-in-the-law
http://www.yahoogroups.com/group/ChronicPainCooperate
http://www.yahoogroups.com/group/dismissed-as-diabled@yahoogroups.com
----- Original Message -----
From: Frederick A. Shotz
To: ada-lawyers@yahoogroups.com
Sent: Saturday, February 02, 2002 5:28 PM
Subject: Re: [ada-lawyers] Fw: Doctors Dismissing Pain Patients per se - ADA violations?

In my opinion, that depends *grin*. A lot of ADA violations that are based on conduct (rather than barriers) require understanding the intent of the actor. In this case if the person seeking care was in need of a pain specialist then, if there was no pain specialist within that group, it would be appropriate to refer the patient to a physician more able to treat this individual. However, if no referral was made and the patient was simply refused treatment that would change the picture somewhat. If the physician felt that the patient was drug addicted and simply claiming pain to get prescription drugs the physician could appropriately refuse treatment but should have provided a referral to a mental health professional or an addiction treatment program. After all addiction is a disease.

Now if there was no referral made and the patient is not a drug addict engaging in drug seeking behavior, and if the patient is a person with a disability as defined by the ADA, this could be an interesting ADA issue.

Sincerely yours,

Fred

Frederick A. Shotz
ADA Consulting Associates


On Saturday, February 2, 2002, at 04:53 PM, L D Misek-Falkoff wrote:

sorry, misaddressed previously:
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----- Original Message -----
From: L D Misek-Falkoff
To: pain-in-the-law@yahoogroups.com ; Dismissed-As-Disabled@yahoogroups.com ; ada-wyers@yahoogroups.com ; ADA-LAW@yahoogroups.com ; CPC ; NDP ; adf ; PsyDoc70@...
Cc: include@...
Sent: Saturday, February 02, 2002 4:49 PM
Subject: Doctors Dismissing Pain Patients per se - ADA violations?

Any ideas appreciated:
 
-----
 
Query: whether a doctors office which is an open to the public walk in arrangement, and has more than 15 employees and has a primary care function by specific physicians for returning individuals, violates the ADA or other law (and other standards and guidelines)  when it refuses to help a patient in pain and ousts them by letter from their practice, refusing discussion or input by the patient.
 
-----
 
Of course the facts and circumstances, transactions and occurrences, will tune the actual situation; but given the hypothetical is the ADA violated where the refusal to talk about, refer, manage extreme pain is blatant?
-------
Individual e-post from:
Dr. L. D. Misek-Falkoff, Speaker, and Chronic Pain Caucus Chair of
The National Disability Party http://www.disabilityparty.com . bio (about)
.

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