EXECUTIVE SUMMARY

Malpractice litigation is possible if EDs fail to obtain a translator and, as a result, the patient is injured. Recent claims have shown that:

  • inadvertently checking a box indicating the need for a translator can lead to serious legal repercussions;
  • EDs should use a certified translator or language line instead of a family member;
  • discharge instructions also should be translated.

A triage nurse’s notes indicated that a 27-year-old man had a significant family history of cardiac disease, yet the EP’s documentation made no mention of this. The patient died of an aortic dissection several days later, and the family sued. One of the principal allegations was that the ED failed to obtain a translator for the patient. ED nursing documentation included a checked box indicating the patient needed a translator. “The plaintiff attorney made a big issue of this,” says Christopher M. Bracci, Esq., an attorney at Boston-based Ficksman & Conley.

The plaintiff attorney alleged that if a better history had been taken by the EP, the patient’s bad outcome could have been prevented. Family members testified that the patient had stated that he’d requested an interpreter but didn’t get one. The defendant EP testified that he was able to get all the information he needed from the patient. “The doctor swore up and down that he had no problem conversing with the patient and had no reason to get a translator,” Bracci says.

The defense contended that even if the patient’s family history of acute coronary disease was known, it would not have changed the treatment plan because it is not linked to increased risk of aortic dissection. The plaintiff alleged that if a CT scan had been performed, it would have shown the dissection, and the patient would have been brought in for emergency surgery. The defense’s cardiology expert countered that even if a CT had been performed, it wouldn’t have shown the dissection at the time of the ED visit.

Thorough documentation by the EP suggested that good communication with the patient took place. Also convincing was the EP’s own assertion that if he had any concern whatsoever that a translator was needed, he would not have hesitated to pick up the phone and request one.

“The jury must have concluded that the patient spoke enough English that he didn’t require a translator,” Bracci notes.

Without the checkbox indicating the translator was needed, the allegation would probably have never been made, Bracci adds. “An entire case can be brought around one inadvertent slip-up.”

ED Nurse Translated

Another recent malpractice case alleged that ED nurses and the EP failed to appropriately translate medical instructions. The patient was instructed to return to the ED or see a healthcare provider if he began to experience a fever or other symptoms. The discharge instructions were given to the patient in English. However, a Spanish-speaking nurse translated the information to the patient and his wife before asking the patient to sign off on the discharge instructions. The patient did not return or seek further care, even though he developed a fever and worsening symptoms. Thus, he became seriously ill and died.

“The theory against the defendants was that they were negligent in the discharge instructions and allowed the patient to be at risk,” says Linda M. Stimmel, JD, an attorney at Wilson Elser Moskowitz Edelman & Dicker in Dallas.

The patient’s wife alleged they did not understand the importance and the details of the discharge instructions. She testified that had they understood, they would have sought treatment for her husband.

“Unfortunately, the Spanish-speaking nurse was not certified to translate, and did not chart her name or any details,” Stimmel says. The plaintiff also made an issue of the fact that the instructions were not in Spanish, and that there was no follow-up call by the ED.

“It is risky to have a family member or friend of the patient be the translator,” Stimmel cautions. “The ED cannot rely upon such a person to translate accurately.” She recommends:

  • using a certified translator or telephone interpretation services to translate. “The transaction number or the translator’s name and certification must be in the chart,” Stimmel says;
  • maintaining a backup log. “The ED must have evidence that they acted in a reasonable manner in providing appropriate translations,” Stimmel says.

ED’s Legal Obligation

Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine, offers this evolution of the ED’s legal obligation to provide language interpreters to limited English proficiency (LEP) patients:

  • Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin.1

“In interpreting Title VI, the Supreme Court has treated discrimination based on language as equivalent to national origin discrimination,” Monico says.2 This means that in federally funded programs and activities, people who speak a language other than English are entitled to treatment equal to that of English speakers.3

  • In 1980, the Department of Health and Human Services issued a notice stating, “No person may be subjected to discrimination on the basis of national origin in health and human services programs because they have a primary language other than English.”4

“Furthering this notion, President Clinton issued Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, in August 2000,” Monico adds.5

  • In response to this, the Office for Civil Rights (OCR) issued an extensive policy guidance to assist healthcare providers and other federal fund recipients in meeting their obligations to LEP individuals.6

“Revisions of the Policy Guidance under the Bush Administration resulted in four factors that institutions, programs, and providers should consider in determining the extent and types of language assistance that should be pursued,” Monico says. The third factor in the OCR Policy Guidance suggests that given the nature and importance of healthcare services, healthcare providers carry a special obligation to ensure language access for their patients.

If failure to provide the necessary language interpretive services resulted in injury because a misunderstanding caused inaction or delay in care on the part of the provider, it could result in medical malpractice (for the delay or inaction), Monico says.7,8 A civil rights lawsuit also is possible — for failure to provide Title VI Civil Rights Act obligations.

“Triage nurses can mitigate the possibility of injury arising as a result of language barriers between patients and providers by proactively activating institutional language interpretive services early in the course of a patient’s presentation to the emergency department,” Monico advises.

REFERENCES

  1. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (“Title VI”).
  2. Lau v. Nichols, 414 U.S. 563 (1974).
  3. Chen AH, Youdelman MK, Brooks J. The legal framework for language access in healthcare settings: Title VI and beyond. J Gen Intern Med 2007;22:362-367.
  4. 45 Fed. Reg. 82972 (Dec. 17, 1980) (Notice).
  5. 65 Fed. Reg. 50121 (Aug. 16, 2000).
  6. Supra note 3.
  7. International Medical Interpreters Association. Lawsuits. Available at: http://bit.ly/2FoKQB7. Accessed March 5, 2018.
  8. Quan K. The high costs of language barriers in medical malpractice. Berkeley: University of California School of Public Health; 2010. Available at: http://bit.ly/1QMXmHz. Accessed March 5, 2018.

SOURCES

  • Christopher M. Bracci, Esq., Ficksman & Conley, LLP, Boston. Phone: (617) 720-1515. Email: cbracci@ficksman.com.
  • Edward Monico, MD, JD, Department of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. Email: edward.monico@yale.edu.
  • Linda M. Stimmel, JD, Attorney, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas. Phone: (214) 698-8014. Email: linda.stimmel@wilsonelser.com.