Translation shortcuts might get you sued

Untrained interpreters pose legal risks

The biggest liability risk physicians face when caring for limited English-proficient (LEP) patients requiring interpreters is using untrained bilingual people such as staff, family members, or friends of the patient to interpret, instead of professional interpreters, according to Lisa Diamond, MD, MPH, an assistant attending at Memorial Sloan-Kettering Cancer Center in New York City.

"Professional interpreters have proficiency in both English and the target language that has been assessed," Diamond explains. "They go through many hours of training, including medical terminology and ethics, and are now certified under a national examination process."

In 32 of 35 cases analyzed by researchers at the University of California at Berkeley School of Public Health, healthcare providers did not use competent interpreters, according to a 2010 study that analyzed medical malpractice claims related to failure to provide appropriate language services.1

"Untrained bilingual people may not be proficient in either English or the target language. They may not know medical terminology or its nuances, and they may add, edit, or omit important parts of the information being relayed," says Diamond. Here are some legal risks faced by physicians treating LEP patients:

• Allegations of breach of the standard of care.

The physician's risk of breaching the standard of care in treating LEP patients does not differ from the risk posed when treating any other patient, so long as the physician did what a "prudent physician" would do to facilitate effective communication with the patient, says John W. Miller II, principal of Sterling Risk Advisors in Marietta, GA.

Though it doesn't directly bear on determining the standard of care, a 2003 guidance issued by the Department of Health and Human Services (HHS) provides a framework of what the government expects of physicians treating LEP patients, notes Miller. (To view the guidance, go to: http://1.usa.gov/pvbiE9.)

"This is certainly a fact a jury will take into consideration, should there be any questions of whether the physician should have more effectively acquired additional information or disseminated a treatment plan through the use of an interpreter," says Miller.

• Allegations of failure to obtain "informed consent."

"As many attorneys and risk managers will concur, physicians obtaining informed consent from patients is more than their signature on a form," says Miller. "Relying upon the signature on the form as proof that effective informed consent took place is potentially dangerous for physicians in some venues."

Informed consent is the process by which a physician explains the risks and benefits of a procedure, and decides with the patient what course of care the patient desires once those risks and benefits are weighed, says Miller. "This sort of communication warrants a higher level of certain communication by the physician and the patient," he advises. "The litigation risk associated with allegations that the patient did not understand the risks of the planned procedure can be significant."

Miller recommends physicians use a professional interpreter who is adept at explaining complicated medical terminology for the informed consent process whenever an invasive procedure is planned. "Further, it is good practice to have the patient repeat back through the interpreter the physician's instructions and their understanding of all information they have received," he says.

• Allegations of violating Title VI.

Title VI of the Civil Rights Act of 1964 prohibits healthcare providers who receive federal money from Medicaid, Medicare, or any other government program from discriminating on the basis of national origin, which the courts have determined includes language discrimination, says Miller.

Under Title VI, according to the HHS guidelines, physicians and other HHS recipients must take "reasonable steps" to ensure meaningful access to their LEP patients. Failure for physicians to comply with these requirements usually means an investigation by the HHS Office of Civil Rights (OCR), warns Miller.

"I've had several practices investigated by the OCR for LEP violations and for violations relative to deaf or hearing-impaired patients," he reports. "The compliance costs alone after a visit have resulted in many of my clients wishing they had paid for interpreters for their patients all along."

Reference

  1. Quan K, Lynch J. The high costs of language barriers in medical malpractice. National Health Law Program, 2010.

Sources

For more information on liability risks of limited English proficient patients, contact:

  • Lisa Diamond, MD, MPH, Assistant Attending, Memorial Sloan-Kettering Cancer Center, New York City. Phone: (646) 888-4246. Fax: (646) 888-4491. Email: diamondl@mskcc.org.
  • John W. Miller II, Malpractice Insurance Broker/Principal, Sterling Risk Advisors, Marietta, GA. Phone: (678) 424-6503. Fax: (678) 424-6523. Email: jmiller@sterlingriskadvisors.com.