Legal Review & Commentary: Without proper language interpretation, sight is lost in Oregon and a $350,000 verdict is reached
Legal Review & Commentary: Without proper language interpretation, sight is lost in Oregon and a $350,000 verdict is reached
By Edward J. Carbone,
Esq., Jan J. Gorrie, Esq., and Richard Oliver, Esq.
Buchanan Ingersoll Professional
Corp.
Tampa, FL
News: A Mexican laborer injured himself on the job when a piece of metal entered his eye. He did not seek medical attention until the next day. The day after that, he was referred to an emergency department (ED), where the eye was finally appropriately treated. The surgery was performed too long after the injury occurred to save the laborer’s sight. The jury awarded the laborer $350,000, less 35% contributory negligence, for a net verdict of $250,000.
Background: The plaintiff was working as a general laborer in Oregon at the time of the accident. He was a native of Mexico whose native tongue was Spanish but spoke a limited amount of English. He was on a construction site using a nail gun when he was struck in the eye by a 6-mm piece of metal. At the time of the accident, the laborer advised his employer of his injury. However, it was not until the next day that he was taken to a freestanding urgent care center and examined by a physician. The clinic did not provide an interpreter on site and neither the physician nor her assistant spoke Spanish. An interpreter was made available through a phone service, but it was the physician who remained on the line and the three parties were not joined via speakerphone. The patient never spoke directly to the interpreter.
The plaintiff claimed that he tried to communicate that he had been using a nail gun at the time of the accident and that a piece of metal struck his eye. However, it was noted in the clinic’s medical record that the patient had previously been hit in the eye by a wood chip. The clinic physician ultimately diagnosed the patient as having an abrasion to the eye and treated it accordingly.
By the next morning, the plaintiff’s condition worsened and he returned to the clinic. After he was triaged, he was sent immediately to the neighboring hospital. Once seen in the ED, surgery was performed to remove a piece of metal lodged in his eye. The date was July 1, 1998. Subsequent surgeries were performed July 20, 1998, Sept. 15, 1998, and Feb. 23, 1999, but to no avail. The laborer’s sight remains impaired.
The plaintiff brought suit against the clinic and the initial treating physician claiming that the lack of an interactive interpreter resulted in the impaired vision. The plaintiff averred that the standard of care required immediate referral to an ED if there was a history of using any sort of power tool at the time of injury, as was the case in this instance. The plaintiff maintained that had he been able to communicate directly with the interpreter, the details of the mode and extent of the injuries would have been conveyed to the practitioner. The plaintiff’s expert testified that had the surgery been performed earlier, the man’s sight could have been saved. The jury returned a verdict in favor of the plaintiff of $350,000, less his contributory negligence of 35%, for a net verdict of $250,000.
What this means to you: For most clinicians, a good case history is the foundation upon which good care can be given. Incomplete or inaccurate information generally leads to spurious conclusions and often incomplete, inappropriate, or delayed care. Often this is to the detriment of the patient, as it was in this case.
While the physician attempted to seek assistance from an interpretive service, the patient was not concurrently interactive in the communication with the interpreter and physician. When the need arises to provide foreign language interpretive services in a medical environment, it is preferred that the interpreter is a certified medical interpreter, who understands the importance of the need for three-way communication. The interpreter should be just that — the middleman interpreting for both the patient and their caregiver, and the lines of communication, should be interactive so that each parties’ questions and answers can be made known to the other. Further, a potential problem with using either family or staff as interpreters lies in the bias of the interpreter.
"A family member may interject their own desires into the patient’s care plan or staff may perceive that the family is doing such and modify their treatment plan accordingly. Conversely, staff may bias the interpretation to suit the interests of the facility or physician. Use of a certified medical foreign language interpreter eliminates bias and the interpreter is able to balance the technical medical terminology in transference of information to the layperson. This service can be contracted on a case-by-case need. The contract should include a timeframe in which the interpreter must respond to a request for services. This is particularly important to facilities providing emergency or urgent care, where acute conditions may call for the delivery of more timely care. The contract also should specify the credentials of the individual interpreters to be provided," observes Diane Giraudi Perry, PhD, LHRM, senior risk manager at Bon Secours Venice (FL) Healthcare.
Should the patient’s inability to communicate be related to a hearing deficit, additional considerations must be made. At minimum, an interpreter should always be made available during interactions between a hearing-impaired patient his or her physician.
"Not only can the lack of an interpreter result in medical errors and liability for such, but the failure to meet the needs of a hearing-impaired person in the delivery of medical care can also result in a lawsuit under the auspices of the Americans with Disabilities Act [ADA]. There are two basic interpretive services that should be available to the hearing-impaired and deaf populations: a manual interpreter (sign language) and an oral interpreter for patients who are not manual communicators. An oral interpreter rephrases the statements into words whose sounds are more easily heard by the severe to profoundly hearing impaired — those who generally use amplification such as hearing aids. The use of oral or manual interpreters who are certified medical interpreters is again recommended because the use of staff or family may result in the same pitfalls described above," states Perry.
Under the ADA, hospitals are required to provide qualified sign language interpreters to patients and the patients’ companions who are deaf or hard of hearing whose primary means of communication is sign language and are to provide qualified oral interpreters to such patients and companions who rely primarily on lip reading, as necessary for effective communication. The following are examples of the circumstances when it may be necessary to provide interpreters: determination of a patient’s medical history or description of the ailment of injury; provision of patient’s rights, informed consent, or permission for treatment; religious services and spiritual counseling; explanation of living wills or powers of attorney; diagnosis of ailments or injuries; explanation of medications prescribed (such as dosage and side-effects); explanation regarding follow-up treatments, therapies, tests results or recovery; blood donations or apheresis; discharge instructions; provision of mental health evaluation, group and individual therapy, and counseling; explanation of complex billing or insurance issues that may arise; and, education presentations, such as classes concerning birthing, nutrition, CPR, and weight management.
Further, health practitioners also should be aware of the tools and techniques used to meet the needs of individuals with oral/speech communication deficits. The use of a communication board will assist the clinician in communicating with a patient with a verbal communication deficit, such as expressive aphasia. "Regardless of the patient’s particular communication deficit whether the barrier is language- or hearing-related, if not appropriately addressed, the inability to appropriately and effectively communicate with your patient makes it difficult to treat the patient. Pediatrics and emergency medicine practitioners experience these circumstances more frequently and routinely; however, all practitioners should have the means to address these circumstances," concludes Perry.
Reference
• Martin N. Urbina v. Providence Health System and Lou Ann Goodrich, MD, Mulnomah County (OR) Circuit Court, Case No. 0006-06026.
A Mexican laborer injured himself on the job when a piece of metal entered his eye. He did not seek medical attention until the next day. The day after that, he was referred to an emergency department (ED), where the eye was finally appropriately treated. The surgery was performed too long after the injury occurred to save the laborers sight.Subscribe Now for Access
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