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What are liability risks when patients don't speak English?
Know your obligations under the law
by Stacey Kusterbeck, Contributing Editor
Imagine yourself at 2 a.m. trying to determine if a patient clutching his chest is having a myocardial infarction, but this patient doesn't speak a word of English. Would you use a Spanish-speaking housekeeper to translate or call a nurse away from her duties in the intensive care unit?
Both of these options are legally risky, says Val Warhaft, MD, chief medical officer of Emergent Medical Associates, an organization that manages the emergency departments of several hospitals in southern California. "They are fraught with potential bias, violation of patient confidentiality, and ultimately, risk, if things don't go well."
EDs nationwide are caring for increasing numbers of non-English speaking patients and patients with limited English proficiency (LEP). There is no question that these patients present significant liability risks. "As an ED physician, having someone with whom I cannot communicate with is very, very risky," says Warhaft.
In addition, if the physician doesn't fully understand the patient's complaint, there is a tendency to order extensive diagnostic tests to mitigate potential legal risks. "I am covering that which I don't understand by ordering additional labs and studies," says Warhaft.
Give patients "meaningful access"
To comply with federal regulations, you must provide "meaningful access" in your ED for non-English speaking and LEP patients, says Sue Dill, RN, MSN, JD, director of hospital risk management for Columbus, OH-based OHIC Insurance/The Doctors Company.
If you fail to provide this access, your ED could face malpractice lawsuits, fines, and violations of federal regulations, she warns.
"I think the potential risks are increasing as more EDs see more LEP patients," adds Mara K. Youdelman, a staff attorney with the Washington, DC-based National Health Law Program.
While federal regulations don't specify a time frame for providing translation services, some states do. For example, New York state now requires emergency departments to provide interpreters within 10 minutes.
Language barriers may affect the delivery of adequate care through poor information exchange, loss of important cultural information, misunderstanding of physician instructions, poorly shared decision-making, and difficulty obtaining informed consent, says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT
Many courts have begun to interpret Title VI of the Civil Rights Act of 1964 as protecting individuals from language discrimination, based on the concern that language restrictions might veil discrimination based on race and national origin. Language discrimination also is covered under the Americans with Disabilities Act, notes Monico.
"The potential exists for malpractice lawsuits due to improper medical care, lack of informed consent, or breach of duty to warn, he says."
To reduce liability risks when caring for non-English speaking patients, do the following:
A guidance from the Washington, DC-based Office for Civil Rights states that hospitals should notify patients of the availability of free interpreter services. (A complete copy of the guidance can be accessed at http://www.hhs.gov/ocr/lep.) Having a sign posted illustrates the hospital's recognition of the responsibility to provide competent language services and that it does not expect patients to bring family members or friends. "It also can help make patients more comfortable if they see information in their own language, and let them know that the hospital is trying to reach out," says Youdelman.
In addition, some languages have regional differences in usage of words or phrases. "A word that may be understood to mean something in Spanish for someone from Cuba may not be so understood by someone from Mexico," says Dill. Your interpreter must be aware when languages do not have an appropriate direct interpretation of certain terms and be able to provide the most appropriate interpretation.
"I would say that there is really no time that it is appropriate to use a family member except perhaps in an emergency while a competent interpreter is being obtained," says Youdelman.
Family members should not be used except in an emergency or if this is specifically requested by the patient, says Dill. If the patient asks that a family member is used, have the patient sign a waiver. "If a waiver is in the file, it may be more difficult for a person to later claim that an interpreter was not offered," says Youdelman.
Also have a competent interpreter listen in to ensure that the family member is indeed competent to interpret. "If the hospital allows the family member to interpret but has reason to believe the interpretation is not accurate, the hospital could still be at risk," explains Dill.
Verify the patient's request with an impartial interpreter and don't just take the word of the family member who is interpreting. "Also, make the patient aware that the services can be provided at no cost to the patient," says Dill.
Untrained interpreters may omit or add facts, substitute their own comments, or volunteer answers for the patient, says Youdelman. "They may also inject their own opinions and observations, or impose their own values and judgments as they interpret," she says.
Patients may not give complete information if family or friends are translating. "Using trained interpreters can ensure confidentiality, prevent conflict of interest, and make sure that medical terms are interpreted correctly," says Youdelman.
Under EMTALA, you are required to assess and treat non-English and LEP patients just as you are for English-speaking patients. "There are particular EMTALA issues regarding potential transfers," adds Youdelman. "Patients will not be able to give consent to a transfer if a competent interpreter or translated materials are not provided."
Also, you may not be able to provide a medical screening examination as required by EMTALA if there is a language barrier and a competent interpreter is not utilized. "This could raise liability issues if the screening process is inaccurate and the hospital fails to provide treatment because of a failure to fully communicate with the patient," Youdelman says.
A growing number of EDs are implementing real-time video technology that allows staff to use a portable unit to speak with trained interpreters in more than 100 languages, including sign language. This system is called MARTTI (My Accessible Real-Time Trusted Interpreter) and was developed by the Columbus, OH-based Language Access Network. "It's almost as though the person is right in the room at your bedside," says Warhaft. "It allows me to communicate in real time in a very effective manner through the language barrier. This clearly reduces the risk profile of the encounter."
The cost benefits to the ED are direct and indirect, including both the savings of no longer having to maintain a cadre of interpreters, and the malpractice suit that never occurs, says Warhaft.
"Prior to MARTTI, we had to rely on anyone available to help with translations — family, non-medical personal, or AT&T telephone operators," says Rhonda Robinson, RN, ED manager at Olympia Medical Center in Los Angeles.
Whenever possible, ED staff used nursing staff to translate, with a list kept with the nursing supervisor of staff names and languages spoken, but depending on the time of day, these individuals were not always available. It was also legally risky to depend on the translator's perception of the patient's complaint and history, adds Robinson.
"Often patients felt very uncomfortable discussing health issues with family or friends, and would not always disclose the full complaint or medical history," she says.
There was also a patient confidentiality issue when using non-medical persons for help with translations. "Now the patient can see the translator, and the translator can see the patient and the ED physician, providing a more private process for all," says Robinson. "We can access this immediately and not have to wait for someone to assist us, which means the patient's complaint is addressed quicker."
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