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More Lawsuits Against Doctors, Hospitals Due To Senate Amendment 3215 To NDAA

Earlier, I wrote about a proposed amendment to the National Defense Authorization Act for 2013, which would dramatically increase lawsuits against schools and colleges by allowing them to be sued for "disparate impact" and for punitive damages under Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. But I forgot to mention another area where the amendment, SA 3215, would have a huge impact: doctors and hospitals, which also are commonly subject to liability under Title VI.

The disparate-impact/punitive damages provision buried in the amendment several Senate Democrats want to add to the Defense Authorization bill (Amendment #3215) also would harm doctors, hospitals and other healthcare businesses by making it easier to sue them for failing to provide bilingual translators free of charge to patients. (Doctors or hospitals who lose Title VI lawsuits also can be forced to pay hundreds of thousands of dollars in attorneys fees, under the so-called Christiansburg Garment rule.)

Bilingual translation mandates imposed on doctors, hospitals and other businesses under Title VI regulations can be onerous. Here is a link to the Justice Department Title VI guidance on what providers must do to provide free bilingual translation for patients. This regulation will have a new lease on life, and lots more scary new teeth, thanks to the proposed Amendment to the Defense Authorization bill, SA 3215, which imposes punitive damages and authorizes private lawsuits for disparate impact, which previously could be enforced only, if at all, by federal agencies in administrative proceedings.

Healthcare providers are subject to the tentacles of Title VI if they accept Medicare, Medicaid, etc. -- meaning they are generally subject to it. And Title VI may be about to radically expand, in ways trial lawyers will love.

Prior to this proposed amendment, which the Senate may vote on soon, doctors and hospitals weren’t subject to punitive damages under Title VI because the Supreme Court interpreted punitive damages as being barred under spending clause statutes such as Title VI, in Barnes v. Gorman (2002), and weren’t suable by private parties or special-interest groups for so-called “disparate impact”  since such disparate-impact lawsuits were barred by Alexander v. Sandoval (2001). This amendment (SA 3215) abolishes both of those limits, threatening doctors and hospitals with lots of liability. The provisions that affect hospitals and doctors are found in Section 1806 of the proposed amendment, which is reprinted at the end of this article. They can also be found on page S7233 of the Congressional Record (Volume 158).