Doctor’s Liability in Using
the Non-English-Speaking Patient’s
Relative Instead of a
Professional Medical Interpreter

How Medical Clinics Benefit from Using Professional Medical Interpreters

We’ve blogged about the role of professional medical interpreter services and professional medical document translations in understanding the informed consent.  A Spanish-speaking male patient entered the emergency department at Anne Arundel Medical Center in Annapolis, Md., in December 2012 suffering from vomiting, abdominal pain and shortness of breath. Over two days in the hospital, he had blood drawn, underwent an abdominal CT scan, received IV fluids and had a urinary catheter inserted. But it’s possible that he never fully understood that fluid was building up in his abdomen and lungs and that his condition could be fatal.

According to a hospital inspection report, no one discussed his care plan with him in Spanish, the only language he understood, until an hour and a half before he died.

As the U.S. grows increasingly more linguistically and culturally diverse, some safety experts worry that healthcare providers too often are not making professional interpreter and translator services available to patients and families. Instead, they frequently rely on nonprofessionals, including patients’ family members, who are not knowledgeable about medical terminology. This increases the risk of medication errors, wrong procedures, avoidable readmissions and other adverse events. Nearly 9% of the U.S. population is at risk for an adverse event because of language barriers, according to the Agency for Healthcare Research and Quality.

Most organizations advise against the use of a patient’s family or friends, who can potentially do more harm than good. Bilingual clinical staffers also are discouraged from stepping in if they have not been certified as medical interpreters. But physicians and hospital staff often ignore these policies, typically because of time pressures, lack of knowledge about the availability of professional medical interpreters, or procedural difficulties in arranging for interpreters.

Position of the Law on the Use of Medical Interpreters

The Joint Commission requires hospitals to provide professional interpretation services to every patient who needs it. It also requires written materials be tailored to patients’ age, language and ability to understand. HHS’ Office of Minority Health updated its National Standards for Culturally and Linguistically Appropriate Services last year, to help hospitals comply with Title VI of the Civil Rights Act and the Americans with Disabilities Act.

In addition, every state has laws on language access in healthcare settings. Thirteen states and the District of Columbia directly reimburse providers for language services used by patients on Medicaid and the Children’s Health Insurance Program.

But there is plenty of evidence that continued gaps in interpretation are leading to adverse outcomes. A study published in June in the American Journal of Managed Care found that patients whose primary language was not English were significantly more likely to have multiple 30-day readmissions at a Los Angeles hospital. Patients speaking Russian, Farsi and Spanish each represented about 5% of patients with three or more hospital stays between July 2009 and December 2010, the study found.

A National Health Law Program study analyzing 35 claims filed in four states between January 2005 and May 2009 for one liability insurer found the insurer paid $2.3 million in damages or settlements and $2.8 million in legal fees for cases where the provider failed to offer a professional interpreter. Among the cases studied, five patients died and others suffered permanent damages, such as leg amputations and organ damage.

In the Tran case, the patient, a 9-year old Vietnamese girl, died from a reaction to the drug Reglan.

Her parents primarily spoke Vietnamese, yet no competent interpreter was used throughout Ms. Tran’s encounters with the medical system. Instead, records show that the 9-year-old patient and her 16-year-old brother served as interpreters during the medical encounter. The physician and hospital in this case settled for $200,000 in aggregate, while the Carrier paid legal fees of $140,000. The case demonstrates the failure to provide language access on multiple fronts – the failure to utilize a competent interpreter, the use of a minor child as an interpreter, and the lack of a translated informed consent form.

In the lawsuit, the Trans’ attorney retained an expert witness who was a professional interpreter. After reviewing the medical records, the expert witness testified that:

Conducting the communications without a professional medical interpreter failed to meet the standards of care applicable for the physician and the facility. The effect is [that] she did not receive the care she should have. The parents were not able to adequately understand and address her medical needs. In my opinion, the failure of the doctor and the facility to provide a professional medical interpreter was a substantial factor in causing [patient]’s death.
The reasons for not using family members, friends and particularly minor children as interpreters are widely recognized.”

Conclusion

The importance of and need for effective language services is increasingly critical in the delivery of quality health care for an increasingly diverse Limited English Proficiency population.

Health care providers, insurers and patients bear many costs – both monetary and non-monetary – that could be avoided with effective communication. Those costs include damages paid to patients, legal fees, the time lost when defending a lawsuit, the loss of reputation and patients, the fear of possible monetary loss, and the stress and distraction of litigation.

Of course, the heightened risk of patient harm from poor medical care is the ultimate critical and unacceptable cost. These can be avoided by setting objective standards of performance and implementing systems to meet them that include the provision of medical interpreting services for LEP patients. The investment in language translation services is far less than the direct and indirect costs of not providing language services.

Up Next: Deposition Interpreters Are
Critical When Deposing
a Non-English Speaking Witness