In other words: Interpreters reduce medical and legal risk
By Jonathan D. Lawrence, MD, JD, FACEP, Assistant Professor of Medicine, University of California-Los Angeles (UCLA); Harbor General Hospital/UCLA, Torrance; Emergency Physician, St. Mary Medical Center, Long Beach, CA.
Editor’s note: As medical practitioners mature with experience, many discover that what was taught in medical school — History is the most important part of the patient encounter — is actually true. Yet, taking a history is a practiced skill even for the examiner who speaks the same language as the patient. The problems encountered with taking a history from a patient are compounded exponentially when the examiner and the patient are not skilled in speaking the same language.
In this issue, the author explores numerous facets of caring for patients who speak a language other than the physician’s language. The author discusses requirements now imposed upon the medical profession to make reasonable attempts to have access to language interpretive services when the population has a significant percentage of non-English-speaking patients. The author also provides some examples of how using impromptu interpreters can lead physicians and nurses astray when caring for these patients. These are lessons that we would be well to learn as the U.S. population becomes increasingly language-diverse. — Richard Pawl, MD, JD, FACEP
Introduction
In medicine, the history often is more important than the physical examination. For example, in differentiating the numerous causes of chest pain in the emergency department (ED), the onset, nature, and radiation of pain are historical variables, as are the multiple risk factors that increase or decrease the clinician’s suspicion of atherosclerotic disease. An accurate history, although ideal, often is difficult to obtain in the ED due to numerous factors, including time pressures. Sometimes this task is easy (e.g., the articulate awake patient who is under no stress). Other times it can be a downright nightmare as in situations where a patient is obtunded, in pain, inebriated, or purposefully vague.
When language barriers are added to the mix, the difficulty in obtaining an accurate history is multiplied. Even if an accurate history is obtained, how well will a non-English speaker understand communication about informed consent, the final diagnosis, or the aftercare instructions?
According to the 2000 census, 31.1 million Americans were foreign-born (11.4% of the total U.S. population). In 2003, that percentage had grown to 11.7%. There are wide regional differences: Foreign-born people constitute 5.5% of the population in the Midwest; 18.6% in the western states; only 1.1% of West Virginia’s population, but 26.2% of California’s population.1 With more than half (52%) of all foreign-born people coming from Latin America, Spanish is the language most often heard among the foreign-born population in the United States. Asian immigrants represent 26% of the foreign-born population, while immigrants from Europe and the rest of the world contribute 16% and 6%, respectively.2
Many, but not all, of these people have limited English abilities. The 2000 census data show that nationwide 17.8% of people 18 years or older speak a language other than English at home; 38.6% of Californians fall into the same category.3 Of these persons, Spanish is the primary language at home (57.3% nationwide and 62.2% in California).4 These numbers actually may underestimate the number of limited-English speakers because the undocumented population — which consists largely of non-English speakers — has been notoriously difficult to count.
What is the liability for ignoring or not making good-faith efforts to obtain accurate histories and informed consents or giving understandable aftercare instructions to patients with limited English capabilities? The purpose of this issue is to explore the problem of language barriers in the ED, the laws and regulations related to interpretation (oral) and translation (written) needs of patients, and the legal difficulties that may arise from language barriers and interpretation/translation. Although interpretation for the hearing impaired is similar, it is a separate issue, legally based on the American with Disabilities Act (ADA), and is beyond the scope of this article.
The Dilemma
How many EPs have been in situations such as the following scenarios? An elderly, foreign-born, non-English-speaking patient arrives with his or her family in the ED with complaints of chest pain. No one in the ED speaks the patient’s language. Family members assist in obtaining a history. But simple questions posed by the EP or nurse are followed by a minute or two of discussion between an ad hoc interpreter and the patient, followed by a one-word answer from the family member/ad hoc interpreter.
Or a patient presents in the ED, and the only available interpreter is a 7-year-old child. Not only is it evident that the child doesn’t understand the medical questions in his or her own language, it’s apparent that he or she is not interpreting the answers accurately. Even in situations where a child can interpret well, the patient may not be completely forthcoming to a 7-year-old or other family member about sensitive matters, such as gynecological conditions, illicit drug use, or spousal abuse.
In cases where the struggle to communicate may affect clinical decisions, it is in the best interests of the EP and the patient to have a nonfamily adult with a medical background serve as the interpreter. A trained interpreter helps ensure that the history is accurate, the consents truly are informed, and the aftercare instructions are understood, which provide the EP with a greater degree of confidence that he or she has done the best possible job for the patient. Better communication results in a greater rapport with the patient and his or her family, reducing the likelihood of legal action in case of an unexpected outcome.
At least two studies have investigated the quality of medical interpretation, though not in the ED setting. Flores and colleagues studied errors in medical interpretation and their potential for clinical consequences in pediatric practice.5 There is no reason to believe the results would be significantly different in the ED. Thirteen encounters were audiotaped and then transcribed. Then, the transcriptions were analyzed for errors in interpretation and whether those errors had a danger for clinical consequences. Of the 13 encounters, professional hospital interpreters were present for six, and ad hoc interpreters (e.g., nurses, social workers, or in one case an 11-year-old sibling) were present for the remainder. Three hundred ninety-six errors were identified, averaging 31 per encounter. Errors included omission (52%), false fluency (16%), substitution (13%), editorialization (10%), and addition (8%). The researchers believed that 63% of the errors had potential for clinical consequences. Examples included: 1) omitting questions about drug allergies; 2) omitting or giving improper instructions on dose, frequency, and duration of therapies; 3) instructing a mother not to answer personal questions; and 4) instructing a mother to put amoxicillin in the ears for the treatment of otitis media. The authors stated that errors made by ad hoc interpreters were more likely to be of potential clinical significance than those made by hospital interpreters (77% vs. 53%).
In a study using only bilingual nurses untrained as interpreters in 21 primary care encounters, researchers evaluated the quality of interpretation in video recordings of interviews by physicians through the nurse interpreters.6 The most successful interpreters completely translated as close to word for word as possible, leaving the physician to draw data and conclusions from the answers. Half of the nurses, however, interpreted in such a way as to mislead the physician. Such errors included: 1) providing information congruent with clinical expectations but not with the patients’ comments; 2) slanting interpretations reflecting unfavorably on patients and thus, undermining patient credibility; and 3) not explaining patient symptoms when described in terms of cultural metaphors not compatible with Western clinical concepts.
Some health care providers believe that using translation/interpretation services is an added financial burden, but as common sense and studies have shown, it is financially prudent to serve patients well. In one study of a group of uninsured patients who needed interpretive or translation services and were not provided them, nearly one-third said they would not return to the hospital (regardless of their health insurance status). Of those who were provided interpretive or translation services, only 9% said they would not return.7 The reputation of a hospital for good service spreads fast; the reputation for bad, indifferent, or hostile service spreads even faster. Another study found that when a language barrier existed and interpreters were not used or were questionable, EPs tended to order more extensive diagnostic testing and typically offered more conservative treatment, at higher costs.8 When a professional interpreter was used, costs were similar to those of English-proficient patients. In a survey of Arizona hospitals, at least one hospital reported that it used language services as a marketing opportunity to selected patient groups.9 Whether viewed as a service or a burden, and outside the purview of this article, it would be a mistake to believe uninsured patients don’t pay their bills. Not only do they often make attempts to pay for their medical care, but EPs frequently are reimbursed if the patients don’t. For example, in California, payment through the so-called AB75 and ASB12 exists for indigent care that until recently met or exceeded Medicaid rates.
The Law
Although Title VI of the Civil Rights Act of 1964 made it illegal to discriminate against people on the basis of their national origin,10 the implications for people of limited English proficiency (LEP) in obtaining health care services was ignored until President Clinton issued Executive Order (EO) 13166 on Aug. 11, 2000.11 The order defines an LEP individual as a person “who does not speak English as their primary language and who has a limited ability to read, speak, write, or understand English.”12 Prior to this order, no federal guidelines, regulations, or statutes made language services mandatory. State requirements were spotty if they existed at all. A physician could be liable under usual tort law (medical malpractice) if he or she didn’t take reasonable steps to get an interpreter to obtain a history or informed consent, or to give discharge and aftercare instructions. What constituted “reasonable” efforts depended upon the circumstances and the decision of a particular jury. Some juries might believe a 7-year-old family member would be a reasonable interpreter, while other juries might believe a formal interpreter service would be required. As always, the skill of an opposing attorney often may sway a jury’s view of what constitutes “reasonableness.”
EO 13166 changed all that by setting a standard. It stated that “. . . each federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services . . .” Further, the Office for Civil Rights (OCR) of the Department of Justice issued preliminary guidelines to set forth compliance standards for each federal department.13 Subsequently, the OCR has established revised guidelines that basically confirmed the original.14 Because Medicare and Medicaid are federal programs, and almost every health care pro-vider receives federal funding through these programs, health care providers are obligated to follow the guidelines (with no promise of compensation for the additional costs). The regulations extend to all recipients of federal financial assistance including those receiving research grants, federal training, and even donations of surplus property. The regulations apply to the whole institution, although only a part may receive assistance.
The guidelines outline the factors to be used by the OCR to determine each provider’s obligation under EO 13166. The obligation considers a balancing of the following four factors (modified to be relevant to the health care community): 1) the number or proportion of LEP persons eligible to be served or likely to be encountered by the provider; 2) the frequency with which LEP individuals come into contact with the provider; 3) the nature and importance of the program, activity, or service provided; and 4) the resources available to the provider and the costs of translation services. (See Table 1.) The OCR emphasizes that one size doesn’t fit all; the reasonableness of the steps taken by the provider in considering the four factors will determine whether a provider is in compliance. The OCR has issued Safe Harbor Guidelines as a rule of thumb for the extent of translation and interpretation required to be used in conjunction with the balancing of factors noted above.15 The term “safe harbor,” in the context of governmental regulations, refers to guidelines that, if followed, protect the regulated entity from governmental action. Note that these guidelines refer to translation of written documents. It is assumed oral interpretation will always be provided.
Enforcement can come by means of: 1) termination from the Medicare and Medicaid programs, 2) injunctive relief including possible contempt of court action for failure to comply with a court order, or 3) other means. The OCR has declared that it always will provide health care providers with the opportunity to come into voluntary compliance before proceeding with formal enforcement actions.16 In addition, the OCR makes suggestions for staff training and monitoring methods.
One can easily see that all hospitals have an obligation to provide translation services if requested by the patient with the largest burden falling on urban institutions. However, a large number of suburban, and even rural, EDs also will feel the effect of this change in governmental policy under the OCR guidelines. The OCR emphasizes that family members and friends may be used as translators if the patient wishes, but the patient has a choice. If the patient wishes a professional interpreter instead of a family member or friend, the hospital must provide one at no cost to the patient. The Congressional Office of Management and Budget (OMB) estimated that full implementation of the OCR guidelines would add approximately 0.5% to the cost of health care nationwide.17
State Laws
As of August 2003, 40 states had laws or regulations on this subject, governing access to health care services by LEP individuals. Some laws, such as that in Illinois, make a general call for language assistance, leaving the specifics to the health care provider.18 The Pennsylvania patient’s bill of rights declares, “The patient who does not speak English should have access, where possible, to an interpreter.”19 In 2000, Massachusetts required every acute care hospital to provide competent interpreter services for LEP patients in connection with ED services.20 Readers are advised to be familiar with their own state’s regulations. A state chart and local developments and news from each state are available from the National Health Law Program.21,22
Response to EO 13166
The directive from the OCR caused hospitals across the country to evaluate their translation services and establish their own guidelines to meet the OCR requirements. Also, predictably, immigrants’ rights groups and English-only advocates have squared off against each other. Immigrants’ rights organizations have brought complaints against numerous institutions for failure to provide translation services.23 English-only groups have tried (and have, thus far, failed) to have the Bush administration reverse the executive order or to reverse its effects through legislation. In fact, the current administration has emphasized its intention to continue the implementation of EO 13166.24-27 Some providers have filed suit against the federal government on the basis that: 1) the guidelines inhibit a physician’s free speech rights to choose the language spoken in his or her office; 2) prior court decisions do not support the notion that discriminating against non-English speakers is the equivalent of discrimination against a person on the basis of national origin; and 3) this EO represents a major shift of policy that requires more extensive hearings under due process before it can be implemented.28
Federal case law gives little indication of how this litigation would fare in the courts. There are many cases that reject the equating of language spoken with national origin.29-31 Most recently, the U.S. Supreme Court in Alexander v. Sandoval, a case that asked whether a private individual has the right to sue a state to administer a driving test in a language other than English, declared that no such individual right exists.32 The Alexander court did not address the issue as to whether language discrimination is the same as prohibited national origin discrimination. In the 5-4 decision, the court declared that a private cause of action exists only if the alleged discrimination as a result of a regulation is intentional rather than as a result of unintentional disparate impact on some racial or otherwise protected class. Thus, using this logic, only the U.S. Justice Department can bring an action enforcing rights granted under the Civil Rights Act of 1964 because Congress did not explicitly give individuals that right. In fact, to date, the OCR has come to agreements in the form of consent decrees with numerous providers without resorting to the more draconian enforcement tools available to it.33-35
Regardless where one stands on this controversy, one thing is clear: The issues of language barriers in health care have been brought to the forefront. Liability for EPs and nurses lays not so much in the threat of action by the U.S. Justice Department, but rather in missed diagnoses and misunderstood instructions leading to poor outcomes. Legal action from individuals proceeds on the basis of perceived and actual bad outcomes to themselves or their family members. Larger institutional issues of regulatory matters are rarely of concern to an individual patient. However, adhering to the OCR guidelines will provide a foundation upon which individual LEP patients may believe that their needs have been addressed. The sight of a brochure in his native language may make a patient more at ease with being in an ED setting. Satisfied patients are much less likely to sue their physicians. Two deadly ingredients for malpractice litigation are failure to communicate and bad outcomes.36 Both are far more likely in the context of language difficulties. Not only will a dialogue and rapport fail to be established between the patient and the physician, but also this failure increases the odds of a misdiagnosis or bad outcome.
Translation and Interpretation Services in the ED
On-site Interpreters
The OCR guidelines indicate that the accommodation required for LEP patients will depend greatly upon the number of LEP patients in each language at a given institution. The guidelines are purposefully vague.
For example, for a busy ED that has 20% of its LEP patients who speak Spanish, a reasonable accommodation would be to have a trained interpreter on site at all times. But there is no magic formula to determine a specific threshold number that would trigger such a response. If the same ED sees 10 LEP patients per month who speak only Polish, then other accommodations are acceptable, such as off-site telephone-based language services.
Clearly, the ideal situation would be that everyone working in an ED with a significant LEP population would be bilingual in the dominant non-English language of the area. But just as immigrants have a difficult time learning English, native English-speakers cannot all be expected to be proficient in learning foreign languages. Even if native English speakers learn Spanish with fairly good proficiency, cultural context and nuance often make it highly unlikely for the native English-speaker to be truly fluent. Furthermore, although the predominant language spoken by LEP patients in most areas of the United States would be expected to be Spanish, concentrations of LEP speakers of other less frequently taught languages exist. Thus, although motivated health care providers could take Spanish courses, practical possibilities do not exist for all languages taught in the United States.
Many EDs use on-site employees (e.g., admission clerks or hospital housekeepers) who may not be trained adequately in medical interpretation as interpreters. Although some interpretation may be better than none, especially in a critical situation, the accuracy of these ad hoc interpreters is open to question. Spanish, for example, is not spoken the same in all countries; idiom and dialect vary. If the ad hoc interpreter used in the ED is not from the same country as the patient, the quality of the translation may suffer. If the accuracy becomes an issue during litigation, the hospital and EP may face some tough questions as to why a more qualified interpreter was not used. Similarly, the hospital’s policies and procedures for certifying competency of interpretive skills might become an issue, thereby placing the hospital in legal jeopardy.
The OCR guidelines clearly state that one-size-fits-all solutions will not be applied, and therefore give no numerical baseline of LEP patients in a given hospital’s catchment area that requires on-site interpreters. However, the guidelines make it clear that oral interpretation (though not necessarily on site) is needed, even if only a few LEP speakers are likely to need services. As the number of patients speaking a given language increases, the guidelines mandate that more and more written materials be translated into the foreign language. (See Table 2.) Because the guidelines depend upon a “reasonableness” standard, each institution must determine if its volume of LEP patients requires on-site interpreters. As a guide, on-site interpreters should be considered if LEP patients in a language common to the hospital’s catchment area: 1) routinely are subjected to unreasonable delays in the delivery of services; 2) are provided fewer services than English proficient patients; or 3) are provided services that are not as effective as for English proficient patients. In addition to routine medical care, examples in an ED might include services of a social worker or psychiatric intake team, and spousal abuse counseling.
In compliance with the OCR guidelines, a hospital is free to develop a resource pool of its bilingual employees available to perform medical translations and act as interpreters; however, the volume of LEP patients in a particular language may require the services of a full-time interpreter to meet the OCR guidelines. More often, interpreters do double duty, filling other roles in the hospital when translation services are not needed. Hospitals would be well advised to reward these interpreters who are performing tasks beyond their routine job description.
Who trains and certifies medical translators/ interpreters? Currently, there is no official national certification organization for medical interpretation/translation. Hospitals are permitted to set their own policies as to the qualifications of translators. There is some danger, however, in setting no standards; an investigation might find translation services are subpar, thereby, interfering with the limited-English patient’s access to services. Companies, such as Language Line Services (www. languageline.com) and CyraCom (www.cyracom.com), provide testing and training services to assist hospitals in evaluating and developing the competency of their interpretation personnel.
Off-site Interpreters
Off-site interpretation services are ideal in four situations: 1) in hospitals that have a low total volume of LEP patients; 2) for rare languages; 3) for sensitive situations (e.g., drug use, domestic violence, sexually related matters) where a truly fluent nonfamily member translator is not readily available, and 4) in isolated tight-knit communities with small pockets of rare language speakers where maintaining privacy of health care information would be difficult using an interpreter from the community. For example, a patient from a small group of 50 Chavacano speakers (a local language from the Province of Zamboanga, Philippines) probably knows everyone in his small community. It could be a humiliating experience for the patient if someone from his community served as interpreter; privacy of health care information also would be at risk. In hospitals that routinely treat tourists from all over the world, the ability to have access to almost any language at any time is a major advantage both for the patient and the treating staff. Patients and their families accept telephonic interpretation readily, although some initially may feel awkward in its use.
Many national, regional, and local companies provide telephonic interpreter services. National companies include Language Line Services (formerly associated with and still known to some as AT&T) (www.languageline.com), CyraCom International (www.cyracom.com), Tele-Interpreters (www.teleinterpreters.com) and NetworkOmni (www.networkomni.com).
National services share the following characteristics: 1) availability 24 hours a day, seven days a week; 2) accessible by telephone; 3) screening and monitoring of their interpreters for quality37; 4) translation of documents as well as interpretation of conversations; and 5) interpreters available at all times for the most frequently spoken languages.
Many companies provide dual handset telephones for a small monthly maintenance fee to make interpreting easier. The phone is plugged into a wall jack close to the patient. With the physician on one handset and the patient on the other, the physician can take a history or give discharge instructions with the interpreter unobtrusively present in the background. The physician can observe the patient during the exchange. Most health care workers find that using interpreters in this manner becomes very comfortable after a short period of adjustment. Closed-circuit TV also may be available, which allows the interpreter to view the patient’s body language or hand gestures. Determine if the service has insurance against mistranslation/misinterpretation in the form of an errors and omissions policy. To date, the author is not aware of any suit being filed on the basis of misinterpretation when using a professional interpreter.38
Costs for off-site interpreters have been declining in recent years. Pricing structures should consider the volume and frequency of interpreter needs. Hospitals should weigh the costs of off-site interpreters against employing full-time on-site personnel; a mix of the two may be the most economically advantageous with on-site interpreters available during regular business hours and off-site available during other times.
Privacy and Confidentiality Issues
Private services should perform background checks on their interpreters; some have their interpreters sign a confidentiality agreement in accordance with Health Insurance Portability and Accountability Act (HIPAA) requirements. In addition, services may have their interpreters adhere to a code of ethics that pledges completeness, accuracy, impartiality, professionalism, and cultural sensitivity. While interpreters may take notes, these notes should be destroyed immediately upon the end of the session. In some companies, interpreting sessions are not recorded; supervisors who monitor quality do so live. These general guidelines may be incorporated into in-hospital training programs for interpretation.
Other Sources
A very useful item to have in any ED is a poster or book that allows the physician or nurse to determine what language the patient is speaking: a basic first step before an interpreter can be called. The patient points to the text that he or she understands. Then, the health care provider simply sees what the language is and obtains the appropriate interpreter. The U.S. Census Bureau uses this technique routinely. Examples are available at: www.languageline.com/cust_serv_training.php. The technique is limited in that the patient must be literate in his or her own language.
Publications also exist for use at the bedside. These usually have questions commonly asked during a history translated on one side of the page with the possible answers on the opposite page. The patient points to the answer that best describes his or her condition. This system is tedious and time consuming, and the range of answers may not accurately describe the history. Usually, each book is limited to one language.
The system requires the patient to be literate and to possess a degree of medical sophistication, but can be used successfully in situations where no other interpreter is available and a book with the language needing interpretation is available. Web- and book-based dictionaries can be useful for health care providers who have a fairly good grasp of the foreign language but need a minimum of words translated. In no way can they replace the fluent interpreter with a grasp of the nuance of phrase and cultural context.
The following cases illustrate the potential liability dangers of misunderstanding patients because of translation problems.
Case #1. K v. E Community Hospital (names withheld by request of hospital counsel; case still is active).39
A 74-year-old woman was brought to the ED on the evening of Sept. 18, 2002. Originally from Iran, she spoke only Farsi. One of her daughters acted as interpreter for the triage and treating nurses as well as for the EP. Through the daughter, the history to the triage nurse was that the patient had 4-5/10 chest pain for two days along with a cough and cold, and that she gagged when she coughed. She had been seen by her Farsi-speaking private physician earlier that day, placed on a cough medicine and amoxicillin, and given a diagnosis of bronchitis. The triage nurse was told that an echocardiogram (ECG) had been done the prior week. The patient had a history of a cholecystectomy and hysterectomy, but the triage nurse could not elicit any history of asthma, chronic obstructive pulmonary disease, or cardiac disease. She was awake and alert, but anxious, with normal vital signs and a pulse oximetry measurement of 96%.
The patient was brought to the treatment area where she was seen by Dr. G. He obtained much the same history as the triage nurse had taken from the daughter. Dr. G. noted in his dictated record, “The history of note is also obtained through the daughter, who is translator.” In addition, he learned that a treadmill and ECG also were done the prior week. His physical exam was essentially normal, finding only a 3/6 decrescendo systolic ejection murmur “which the daughter states is old for the patient.” Dr. G. interpreted the results from a three-lead cardiac monitor and from a two-view chest x-ray as normal. The radiologist’s interpretation the next day was “bilateral interstitial infiltrates representing early pulmonary edema or chronic changes.”
The patient was given ondansetron for her nausea with good relief. Dr. G. reasoned that with her normal cardiac work-up the previous week, cardiac disease was unlikely. He made the diagnosis of bronchitis and switched the patient to azithromycin, added albuterol, and referred her to her physician in two to three days. She was instructed to return for “worsening symptoms, new concerns, increase in shortness of breath, increase in chest pain, or palpitations.” She was given aftercare instructions in English and discharged at 12:30 a.m. Final vital signs including pulse oximetry were normal upon discharge, except for a blood pressure of 86/65 mmHg. The nurse noted “patient without any complaints at this time.”
At 3:30 a.m., the patient returned via paramedics in full arrest. Dr. G., who still was on duty, could not resuscitate her. No autopsy was performed, although Dr. G. opined in his chart that pulmonary embolism was high on his list of possibilities. The family (including the daughter/ad hoc interpreter) filed a wrongful death action against Dr. G. and the hospital.
Depositions of all the parties were taken, including Dr. G. and the daughter who had interpreted for her mother. The daughter stated in her deposition that her mother never improved while in the ED. Further, her mother continued to have the same pain the entire time and that it had worsened by the time she was discharged. Dr. G.’s testimony paralleled his written record. Trial is scheduled for this year.
Discussion
This case illustrates the potential dangers of using family members as interpreters. Even assuming that the daughter correctly interpreted her mother’s initial history, a glaring discrepancy arose between the nurse’s documentation of a pain-free patient on discharge and the daughter’s testimony that her mother was worse than ever at discharge. Although discrepancies can occur in situations where all the parties speak English, the problem is compounded when the interpreter also is a plaintiff. In this case, a party with a vested interest in the outcome of the legal action is the only conduit for what the deceased had to say before discharge. We can’t know if the nurse’s notation of “no complaints” is accurate. If all parties spoke English, the patient likely would have expressed her pain or lack thereof directly to the treating nurse and the physician.
At trial, this case will rest upon whom the jury believes: the daughter or the nurse and physician. If the health care providers are believed, Dr. G.’s well-documented and thoughtful analysis of his medical decision making will go far in providing a defense verdict. The opposite is true if the daughter is believed. It is easy to see how a disinterested third-party interpreter could make a difference. A trained or professional interpreter could allow an accurate and believable portrayal of the patient’s pain level or other complaints on discharge, thus lending weight to the testimony of one of the parties. In similar situations, the nurse or physician should make it clear that the words being quoted as the patient’s are through an interpreter.
Case #2. Chhung v. S. Medical Center (identity withheld as part of settlement agreement).40
Na Chhung, a 42-year-old, non-English-speaking female refugee from Cambodia, was brought to the ED of S. Community Hospital by ambulance on May 26, 2001. Her family called the ambulance because the patient was complaining of pain to her chest and abdomen, getting progressively worse during the prior two weeks. On arrival, she was evaluated by a nurse who obtained the history from the patient’s 11-year-old daughter, who acted as interpreter. The nurse was told the pain was steady, located diffusely in both chest and abdomen and associated with nausea, but no vomiting, occasional diarrhea, no fever or cough, but with intermittent shortness of breath. According to the daughter, there had been no similar pain in the past, and the patient was on no medications and had no history of surgery. Vital signs were normal with temperature 97.8ºF, pulse 86 bpm, respirations 18 bpm, and blood pressure 116/78 mmHg.
Again using the daughter as an interpreter, the EP examined the patient and got much the same history as the nurse had. The patient’s husband was present but also did not speak English. The EP further explored the possibilities of tropical diseases acquired before coming to the United States such as malaria, as well as any history of tuberculosis or hepatitis. The daughter interpreted her mother’s answers to those questions as negative. Likewise, the EP understood the patient to say, through the daughter, that her last menses had been within the last two weeks and was normal. The EP’s physical examination basically was normal, except for mild diffuse abdominal and chest tenderness to palpation, but no organomegaly and no abnormal lung or heart findings.
At a loss as to the etiology of his patient’s complaints, and having a nagging feeling he wasn’t getting an accurate history through the daughter, the EP “shot-gunned” a battery of tests including a CBC, a comprehensive metabolic panel (basic chemistries plus liver functions), lipase, urinalysis, pregnancy test, chest x-ray, and ECG. He administered a dose of morphine to the patient while waiting for the results. Two hours later, when all the results were normal, the EP re-examined the patient to find her resting comfortably and in no distress. Mrs. Chhung was discharged home with a prescription for hydrocodone/acetaminophen and referred to her own physician in two to three days. These instructions were relayed to the patient and her husband by their daughter.
Eleven months later, the EP received a summons and complaint for the wrongful death of Mrs. Chhung. During discovery it was learned that Mrs. Chhung had been depressed since fleeing her homeland. She had a long history of multiple somatic complaints and had gone frequently to her own physician (a local physician serving the Cambodian community with a bilingual office staff) who could not find any physiologic basis for her apparent illnesses. Her physician believed she was depressed, but the patient had resisted psychological intervention. On the morning of her ED visit, Mrs. Chhung had ingested an entire bottle of acetaminophen 500-mg tablets (the exact number in the bottle could not be established). In her deposition two years after the ED visit, the patient’s daughter stated that she knew her mother had been depressed but didn’t know how to express the idea of depression in English. Her father had asked her to tell the EP about the ingestion, but she didn’t, believing her mother would be in trouble if she revealed what had happened. The patient had developed acute liver failure, and died at another hospital 10 days after the ED visit. The position of the expert witness for the EP was that, in the ED, “you deal with the information you receive,” and that the EP acted reasonably in using the daughter as an interpreter. Predictably, the plaintiff expert thought otherwise. The case settled before trial for an undisclosed sum.
Discussion
The dangers of allowing the 11-year-old daughter of the patient to act as the interpreter are obvious: 1) Her language development in English and Cambodian should have been suspect growing up in a home where English was not spoken; 2) her maturity was not sufficient to be able to express concepts such as depression; and 3) her relationship as daughter to the patient interfered with her ability to pass on the important information about the ingestion for fear of the consequences to her mother.
Case #3. Sandoval v. St. Margarita Community Hospital 41
Rafael Sandoval was a 2-year-old male brought into the ED by his parents on Jan. 14, 1999, with complaints of wheezing and shortness of breath. He was triaged with vital signs revealing a temperature of 102.6ºF, pulse 146 bpm, respirations 40 bpm, and pulse oximetry measurement of 93%. The triage nurse noted intercostal retractions and diffuse bilateral wheezing. Rafael’s parents spoke only Spanish. Although the ED had a large number of Spanish-speaking patients and usually had someone among the staff who spoke fluent Spanish, on that day, there were no readily available interpreters. The triage nurse did as best she could with her limited Spanish capabilities and understood the parents to say that the child had a history of asthma, but was otherwise a normal child. There was no record of any medications available at home.
Rafael was brought to the treatment area; the EP reviewed the triage notes and started treating him as having an asthma exacerbation. Nebulized albuterol treatments were administered as well as acetaminophen. A weight-appropriate amount of prednisolone was given by mouth. Although the temperature resolved, and the child improved somewhat, he continued to have some wheezing on the right side, and his pulse oximetry remained at 94%. A chest x-ray was ordered and interpreted by the EP as hyperaeration, no infiltrates. The child appeared to have improved, and in the opinion of the EP, could be considered for outpatient treatment. He was given a prescription for amoxicillin, prednisolone, and an albuterol metered dose inhaler. He was discharged with instructions written in English to recheck with his own physician or the ED in two or three days.
Rafael returned by paramedics three days later in severe respiratory distress. His temperature was 104.3ºF, pulse 160 bpm, and respirations 40 bpm and labored; his pulse oximetry on room air was 86%. He was intubated and admitted to the pediatric intensive care unit. A chest x-ray revealed an opacified right lung. He had bronchoscopy during his hospitalization, which revealed a small, plastic foreign body in his right mainstem bronchus. His hospital course was stormy, although he eventually was discharged after having several drainage procedures for empyema.
His parents brought an action on Rafael’s behalf against the hospital and EP for failure to properly diagnose the bronchial foreign body in a timely manner leading to unnecessarily long hospitalization because of the development of empyema and the required surgical drainage procedures. Also, unspecified damages for future diminished lung capacity were demanded, as well as the usual claim for general damages (pain and suffering). The parents also brought their own actions against the hospital and EP for negligent infliction of emotional distress.
During discovery, the parents testified that they told both the triage nurse and EP in Spanish that Rafael’s shortness of breath started about one day after they heard him coughing while playing with some toys out of their sight. They thought nothing about the incident until he became ill and then tried to express their concern about a possible aspiration to the health care personnel. They both mentioned their frustration about suspecting they were not being understood, but they trusted the physician’s judgment in sending Rafael home because he appeared to have improved after his inhalation treatments. The EP didn’t remember the child specifically, but testified he appeared to have “garden-variety” asthma according to the medical records because the child improved with treatment. He admitted that if he had known about the coughing spell one day prior to the visit, an airway foreign body would have been part of his differential diagnosis.
Settlement negotiations failed, and the case went to trial. The jury found in favor of the hospital and the EP in an 8-4 decision. It also rejected the negligent infliction of emotional distress claims of the parents because the jurisdiction required proof that the parents understood at the time of the injury that negligence was taking place, and they could not convince the jury of this point. The jurors found sympathy for the health care workers on the issue of interpretation. The defense was successful in its portrayal of the ED as a busy place operating under less-than-ideal circumstances. One of those circumstances was not having an interpreter for every patient that needed one. The jury found the hospital and EP did what they could under those circumstances, and that what they did was reasonable.
Discussion
The EP and hospital were fortunate in the decision on this case. A jury easily could have decided that because Spanish is such a commonly spoken language in the United States, the EP and hospital could have made a small effort to get an interpreter from somewhere in the hospital (i.e., another patient, or even a visitor in the waiting room). Although we know that would not be ideal, it could probably persuade a jury of good-faith efforts to get an interpreter.
Rafael’s outcome, aside from any legal ramifications, likely would have been drastically better had an interpreter been available. Even an unqualified interpreter would have made Rafael’s parents’ observation of the prior coughing spell known to the EP. Most EPs would have instituted a work-up for the foreign body, and thus, avoided the complications that occurred by sending him home.
Conclusion
Being an EP or nurse in our multilingual society presents significant challenges. The essentials of the job are good communications with patients and their families — a challenge even when all parties speak English and more so when a language barrier exists.
Federal regulations recognize that meaningful access to health care and other services relies to a large degree upon having the recipient of those services understood by health care providers. These regulations formalize steps to allow patients full access to basic health care. Aside from the regulations, all health care providers must realize that understanding patients and having patients understand health care personnel are paramount to making the correct diagnosis and providing effective treatment. Any less is a prescription for poor outcomes, and poor outcomes are an invitation for legal action.
Endnotes
1. U.S. Census Bureau. The Foreign-Born Population. December 2003; www.census.gov.
2. Id.
3. Stanford University Center for Comparative Studies in Race and Ethnicity. Californian’s Use of English and Other Languages, Census 2000 Summary, No 14; 2003.
4. Id.
5. Flores G, Laws MB, Mayo SJ, et al. Errors in medical interpretation and their potential clinical consequences in pediatric encounters. Pediatrics 2003; 111:1,495-1,497.
6. Elderkin-Thompson V, Silver RC, Waitzkin H. When nurses double as interpreters: A study of Spanish-speaking patients in a U.S. primary care setting. Soc Sci Med 2001; 52(9):1,343-1,358.
7. The Access Project. What a Difference An Interpreter Can Make — Health Care Experiences of Uninsured with Limited English Proficiency. April 2002. www.accessproject.org/camspublications.htm.
8. Greenbaum M, Flores G. Lost in translation. Mod Healthcare 2004;34(18):21.
9. Hughes RA. Struggle to Communicate: Medical Interpretation in Arizona. 2004. Available at www.slhi.org.
10. Title VI of the Civil Rights Act of 1964. 42 U.S.C. 2000d, et Seq. and implementing regulations; 45 CFR Part 80.
11. 65 Fed Reg 50,123 (Aug. 16, 2000).
12. U.S. Office of Civil Rights. Frequently Asked Questions about LEP. 2002.
13. U.S. Department of Health and Human Services. Office of Civil Rights. Policy Guidance. Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency. Sept. 1, 2000.
14. 67 Fed Reg 47,311 (Aug. 8, 2003).
15. Supra note 13.
16. Supra note 9.
17. Office of Management and Budget. Report to Congress. Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services For Persons With Limited English Proficiency (March 14, 2002); http://whitehouse.gov/omb/inforeg/lepfinal3-14.pdf.
18. 210 Ill. Comp. Stat. 87/5 (The Illinois Language Assistance Services Act).
19. 28 Pennsylvania Administrative Code 103.22(b)(14).
20. M.G.L.A. 111, Section 25J.
21. Perkins, Youdelman, Wong, NATIONAL HEALTHCARE PROGRAM, Ensuring Linguistic Access in Healthcare Setting; Legal Rights and Responsibilities, August 2003, [email protected].
22. www.healthlaw.org/index.cfm.
23. Mozes A. “NYC Hospitals Sued for Lack of Spanish Services.” Feb. 22, 2002; www.reutershealth.com/en/index.html.
24. “It is our intention to pursue plans to issue a Federal regulation on limited English proficiency as required under E.O. 13166,” David Winningham, Acting Director, Office of Civil Rights, Department of Agriculture. Letter to Jim Boulet Jr., Executive Director, English First, Sept. 21, 2001. www.englishfirst.org.
25. “The Administration does not plan to repeal Executive Order 13166,” Ralph Boyd Jr., Assistant Attorney General, Civil Rights Division, Department of Justice. Letter to Jim Boulet Jr., Executive Director, English First, Sept. 21, 2001. www.englishfirst.org.
26. “Executive Order 13166 has been neither repealed by the President nor overturned by statute. Further, there has been no indication that the Administration intends to repeal E.O. 13166,” Harry Carey, Associate General Counsel, Office of Fair Housing, Department of Housing and Urban Development. Letter to Jim Boulet Jr., Executive Director, English First, Oct. 2, 2001. www.englishfirst.org.
27. “The Department of the Treasury published its guidance in the Federal Register on March 7, 2001. The Department has no plans to withdraw that guidance,” David Aufhauser, General Counsel, Department of the Treasury, Letter to Jim Boulet Jr., Executive Director, English First, Sept. 28, 2001. www.englishfirst.org.
28. Colwell v. HHS, No. 04-CV-1748 (S.D. Cal.) Aug. 30, 2004.
29. Garcia v. Gloor, 618F. 2d 264 (5th Cir.1980): “The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin.”
30. An v. General Am. Life Ins. Co., 872 F.2d 426 (9th Cir. 1989), “A policy involving an English requirement, without more, does not establish discrimination based on race or national origin.”
31. Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730, 733 (ED Penn. 1998) (surveying cases: “all of these courts have agreed that — particularly as applied to multilingual employees — an English-only rule does not have a disparate impact on the basis of national origin, and does not violate Title VII.”).
32. Alexander v. Sandoval, 532 U.S. 275 (2001).
33. Rancho Los Amigos/Los Angeles County DHS (OCR Docket No. 09-00-3014).
34. Fresno County Adult Services (OCR Docket No. 09-00-3007, 09-00-3300 & 09-00-3338).
35. Main Medicaid Center (OCR Docket No. 01-98-3025).
36. Levinson W. Physician-patient communication: The relationship with malpractice claims among primary care physicians and surgeons. JAMA 1997; 277(7):553-559.
37. Personal Communication with Dale Hansman, Language Line Services.
38. Id.
39. Personal communication with Kenneth W. Drake.
40. Personal communication with Anthony L. Chaves.
41. Personal Communication with Cynthia S. Coombs. Sandoval v. Santa Margarita Hospital, RCV 038571, Riverside Superior Court, CA.
As medical practitioners mature with experience, many discover that what was taught in medical school — History is the most important part of the patient encounter — is actually true. Yet, taking a history is a practiced skill even for the examiner who speaks the same language as the patient. The problems encountered with taking a history from a patient are compounded exponentially when the examiner and the patient are not skilled in speaking the same language. In this issue, the author explores numerous facets of caring for patients who speak a language other than the physician’s language.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.