Medical Interpreters Protect from Malpractice Claims

When Medical Translators Are Not Used, Bad Things Happen

On-site medical interpreting services save human lives and shield hospitals and doctors from malpractice lawsuits. Recent studies indicate that medical malpractice is more likely to occur when there are communication barriers between a patient and his or her healthcare provider. The United States Census Bureau reports that approximately 20 percent of people in the United States speak a primary language that is not English. Of this number, 44 percent are considered to be limited English proficient. Individuals under this classification are more likely to require professional translation and interpretation services. In some parts of the country, this need is even more profound. For example, the percentage of non-English speakers is twice as much as the national rate.

When assistance is not used in this realm, medical communication errors are more likely to arise, placing doctors, nurses and medical facilities in peril.

One medical association says that the lack of medical foreign language translation causes up to 18 percent of malpractice errors in the United States, Canada and the European Union. When the doctor provides specific instructions regarding care and the patient cannot understand him or her, the patient may not be able to follow instructions and protect his or her own health. Doctors must be careful to ensure that their patients have a clear understanding regarding treatment, diagnoses, questions and instructions. When doctors and patients misunderstand each other, there is an increase in incorrect treatment, injury or sometimes even tragically death.

Part of the issue concerning limited English Proficiency patients is that many private doctors’ offices do not have qualified interpreters, especially for languages that are not widely spoken in the area. Sometimes even hospitals find it difficult to find local skilled translators. However, options are available when a local interpreter is not available, such as using a professional translation service provider or conferencing or videoing in a certified interpreter. Doctors who fail to explore these alternative options may be at risk for medical malpractice liability.

In one medical malpractice case, a 9-year-old Vietnamese girl died from a reaction to a prescribed drug. The child’s parents did not speak English well and the child and her older brother served as interpreters during interactions with healthcare providers. The case resulted in a $340,000 settlement in favor of the child’s family in a wrongful death action based on medical malpractice. The child suffered an infection and eventually a heart attack which resulted in her death. The emergency room physician had initially misdiagnosed the patient and failed to warn the parents of the side effects of the prescribed drug, which was not recommended for pediatric use. The family’s attorney hired a professional interpreter as an expert witness. This expert testified that conducting communications without a professional medical interpreter failed to meet the appropriate standard of care. Due to this oversight, the parents did not have an accurate understanding of her medical needs and the risks at play. The expert also testified that using a minor child as an interpreter is problematic.

It is important to use a trained professional medical interpreter in these situations, and the expert testified that the parents should have been asked if an interpreter was needed. Since the child was only nine, the parents’ informed consent was necessary. They also did not receive an informed consent form in their language. The parents needed to understand the further treatment and care that their daughter would require, be able to ask about information regarding medications and potential risks and have ongoing and direct communication with the provider. Since all communication was in English, including the discharge papers and none were translated into Vietnamese, the parents did not have adequate knowledge of their daughter’s condition. As such, the doctor’s conduct was found to be negligent.

It is also important to have professional medical translation services available to assist with possible litigation. When bringing forth cases, it is common for attorneys to write briefs to the court. Sometimes cases can be won on summary judgment as a matter of law, meaning that there is no legal reason to rule in favor of the other side. These briefs include holdings in cases with similar fact patterns.

However, in the case of Cruz-Gascot v. HIMA – San Pablo Hosp. Bayamon, 728 F. Supp. 2d 14, 2010 U.S. Dist. LEXIS 79226 (D.P.R. 2010), the court held that cases that have deliberations in other languages must be accompanied by certified translations before they can be accepted as precedent. This is another critical area that must be addressed when presenting a case.

Having professional medical interpretation services readily available can help medical facilities protect themselves from claims of medical malpractice based on a lack of informed consent.

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