Linguistic Competence and the Law

Effective communication between patients and health care providers is essential to the delivery of quality medical care. A patient’s inability to understand and speak the English language not only compromises the health and safety of the patient but also exposes hospitals and clinicians to the risk of legal liability for malpractice, medical errors, allegations of lack of informed consent and deprivation of the patient’s right to participate in treatment decisions.

A 2007 study conducted by researchers at the University of California, Irvine found that language barriers are “a critical roadblock to quality health care delivery…[and] result in longer hospital stays, more medical errors and lower patient satisfaction.”1 According to the Minnesota Department of Health’s Office of Rural Health and Primary Care, “patients with limited English proficiency (LEP) are less likely to seek preventive and primary care and more likely to use emergency rooms for non-emergency care.”2

Nurses are most often the first medically trained personnel a patient will meet in his or her health care experience. When an LEP patient is not identified as such and is not asked about the need for language assistance services, the potential for compromised health care increases, raising the likelihood of a medical malpractice claim. Research from the National Health Law Program (NHeLP) confirms that “over one quarter of LEP patients who needed, but did not get, an interpreter reported that they did not understand their medication instructions, compared with only 2% of those who did not need an interpreter” or received an interpreter.3

Another recent study notes that language barriers not only deprive LEP patients of the ability to understand vital medical information but can also result in “far fewer services” being provided, compared to English-speaking patients. “The need for clear policy and detailed operational procedures, both to ensure quality health care services and to meet legal and regulatory requirements for language access, is the dilemma of virtually every health care provider in America,” the study emphasizes.4

With the number of LEP individuals in the U.S. continuing to increase, there is an even greater need for health care facilities to have effective language assistance programs. Some estimates of the LEP population range from “11 million people who speak English ‘not well’ or ‘not at all’ to over 21 million who speak English less than ‘very well.'”5  NHeLP reports that “between 1990 and 2000, 15 states experienced more than 100% growth in their LEP populations.”

Being Proactive

Legal problems can occur on many fronts when a health care facility fails to take an active role in ensuring that LEP patients are afforded the opportunity to fully participate in their health care by providing language assistance services. This becomes particularly crucial in regard to important medical discussions that must occur between patient and doctor, including consent to procedures, discharge/after-care instructions and decisions about treatment alternatives.

Lawsuits are filed when LEP patients allege that they did not understand, or were not explained, the risks and benefits of a procedure before consent was given. Under the law, if the consent was not informed, any consent form signed is considered invalid and treated as if the patient never consented. Additionally, if an LEP patient is given a consent form or any other written document in English, its validity is suspect. 

NHeLP has published a Statement of Principles, endorsed by many organizations (including the American Nurses Association), which emphasizes the need for effective communication between health care providers and LEP patients to facilitate access to care, reduce health disparities and medical errors, and assure a patient’s ability to adhere to treatment plans. The statement recommends that language assistance services must always be available—with quality improvement processes in place to assess the competency of those providing the services—and that health care facilities should educate their staff about identifying resources to improve access to quality care for LEP patients. In addition, patients must be initially screened when presenting to a hospital, clinic or doctor’s office to assess their ability to communicate effectively in English. If the person is found to be an LEP patient, properly trained interpreters must be made available free of charge.3

NHeLP has also called attention to several recent cases that vividly demonstrate the impact language assistance services can have on the quality of patient care. In one example, a Vietnamese man who repeatedly endured pain after treatments was unable to communicate this because there was no interpreter available. Only after a community organization stepped in did the clinic become aware of the problem and adjust the treatment. Another case involved a Russian-speaking patient whose blood pressure was at a life-threateningly high level. Through an interpreter, doctors were able to learn that the patient had been cutting his blood pressure medication in half so it would last longer.

Civil Rights Requirements

Not only do health care facilities have a duty to provide language assistance services to ensure quality medical care, it’s also required by federal law if the facility receives federal funding. Title VI of the Civil Rights Act of 1964 mandates providing all patients with equal access to services, including ensuring that LEP patients are able to communicate effectively with their providers.

To comply with Title VI in this context, the hospital must assess the language needs of the community it serves, develop a comprehensive written policy, train its staff on all language policies and procedures, and monitor at least annually to evaluate LEP needs and services.4

Title VI requirements included in the Office of Minority Health’s National Standards on Culturally and Linguistically Appropriate Services in Health Care (CLAS) mandate federally funded health care organizations to:

offer and provide language assistance services to LEP patients at all points of contact in a timely manner during all hours of operation free of charge;

provide verbal and written notices to patients in their preferred language informing them of their right to receive language assistance;

assure the competence of language assistance provided and refrain from using family members as interpreters unless requested by the patient; and

provide patient-related written materials and signage in the languages commonly represented in the community.

Hospitals that fail to provide adequate language services to afford all patients equal opportunity to receive quality health care are subject to federal civil rights complaints. Some states also have laws requiring formal language assistance programs and regulations for how they must be implemented. However, rural hospitals with limited budgets may not be required to provide the same level of language services as urban or larger hospitals.2

What Nurses Can Do

Having formal, written language assistance policies in place can help both privately funded and government-funded hospitals comply with the law and more effectively meet the needs of their LEP patients. If your hospital has no such formal policies, or if current policies have proven inadequate, you and your fellow nurses can advocate for comprehensive standards to be implemented. It is not only for your protection and the protection of the hospital, but most importantly, it is a way to protect your patients and ensure that every patient receives the best treatment.

If your hospital does have established protocols for providing language assistance, following such policies can reduce, or even eliminate, your risk of liability. Make yourself familiar with all the resources available.

The most important step is identifying LEP patients at the very beginning of their interaction with the facility and following through with obtaining language services. Doctors and nurses may think they can “get by” for day-to-day care with nonverbal gestures, but such limited communication can never be considered acceptable for overall medical care of the patient. Patients must be provided with a competent, trained interpreter to allow a thorough exchange of medical information—i.e., patients must to be able to convey all their symptoms, medical history and medications taken. They must also be able to understand treatment options, including the risks and benefits of each. Without complete language understanding, the LEP patient does not have equal access to health care and all sides are at risk for an adverse health effect.

Additionally, all important written documentation LEP patients are asked to sign should be in their native language if possible. This is most feasible for health care facilities that have high percentages of a few different languages.

Using trained interpreters, as opposed to patients’ family members, provides the best method for ensuring accurate translation. Many hospitals have language assistance policies that specifically discourage use of family members, particularly children under the age of 16. Using professional interpreters who have undergone testing and training ensures that important medical conversations can be conducted without heightened risk of misunderstanding. From a legal standpoint, this also serves as good evidence that the interpretation provided was competent. 

If your hospital is using bilingual staff members for interpretation (which is perfectly acceptable), there should be methods in place to ensure that these staff members are competent to provide medical interpretation. If a person is deemed fluent in a particular language, it should not be automatically assumed that he or she is competent to provide interpretation of medical information.6

If you are bilingual and are asked to provide interpretation services, consider obtaining outside certification as a medical interpreter if your hospital does not have an interpreter training program. This could bolster your credibility if there is any question as to the accuracy of your translation. However, the scenario that has the most potential for legal recourse is where patients who clearly demonstrate difficulty understanding English are not provided with any language services.

Document, Document, Document

Documentation is also important, particularly if a lawsuit is filed. The information you chart at the time carries much more weight than testimony you give years later. Brooklyn Hospital’s policy on what to chart is particularly useful:

“Language assistance must be documented. [Clinical] personnel should record in the patient’s chart every instance in which medical information is provided to an LEP patient in a non-English language. The clinician should note in the patient’s chart how and by whom language assistance services were provided; the language, time and date that such services were provided; and the length of the encounter. This notation should be uniformly recorded in a specific location in the LEP patient’s medical records.

“If an LEP patient refuses the hospital’s language assistance services and wishes to use a family member or other interpreter resource not provided by the hospital, the [clinician] shall document such refusal in a specific and uniform location in the patient’s medical records. Such documentation must include, at a minimum: (i) a statement that the availability of free language assistance services was explained to the patient and that he or she knowingly declined those services; (ii) the name, department and title of the employee used to explain, in the patient’s primary language, the patient’s right to free language assistance services; (iii) the patient’s reason(s) for refusing language assistance services; and (iv) if an outside interpreter is used, the outside interpreter’s name and relationship to the patient.” Additionally, signed waivers in the patient’s language would be an important piece of protection.

In Conclusion 

The best way to protect yourself and your facility from translation liability is to immediately determine whether a patient is in need of language assistance services and to have an effective program already in place to provide those services. The law does not allow—nor should you be satisfied with—”just making do” when it comes to the patient’s ability to convey and understand information. As a nurse, you have an independent duty to be an advocate for your patient and ensure that all patients receive the best possible care. If there is any indication that the patient is having difficulty speaking or understanding English, get a qualified interpreter. You are required by law.

References:

Language Line Services (2008). “Demand for Language Assistance in U.S. Hospitals Grows.” Retrieved from www.languageline.com.

Minnesota Department of Health, Office of Rural Health and Primary Care (2008). Language Access Services in Critical Access Hospitals for Patients with Limited English Proficiency in Rural Minnesota.

National Health Law Program (2006). Language Access in Health Care Statement of Principles.

Paras, M. (2005). Straight Talk: Model Hospital Policies and Procedures on Language Access. California Health Care Safety Net Institute.

Youdelman, M. and Perkins, J. (2005). Providing Language Services in Small Health Care Provider Settings: Examples from the Field. The Commonwealth Fund.

State of New York, Department of Health (2006). Language Assistance: Meeting the Needs of Patients with Language Barriers.

Providing Language Assistance for Hearing-Impaired Patients

Persons with limited English proficiency are not the only patients who face barriers to communication when seeking medical care. For patients who are deaf or hearing-impaired, hospitals have a duty to provide access to sign language interpreters. As with LEP patients, hospitals should have policies in place for meeting the needs of patients with hearing disabilities and should have staff or volunteers trained in sign language readily available to assist with interpretation.

In the 2001 case of Borngesser v. Jersey Shore Medical Center, the family of a deaf patient filed a lawsuit against the hospital for failing to provide a sign language interpreter, which they claimed prevented the patient from participating in her own course of care. The patient’s husband was also deaf and their 17-year-old daughter, though not deaf, was not trained as a sign language interpreter. The hospital, through the testimony of doctors and nurses as well as notes in the record, asserted that critical medical information was effectively conveyed to the patient through her daughter. The daughter denied being present during such times.

In the 2001 case of Borngesser v. Jersey Shore Medical Center, the family of a deaf patient filed a lawsuit against the hospital for failing to provide a sign language interpreter, which they claimed prevented the patient from participating in her own course of care. The patient’s husband was also deaf and their 17-year-old daughter, though not deaf, was not trained as a sign language interpreter. The hospital, through the testimony of doctors and nurses as well as notes in the record, asserted that critical medical information was effectively conveyed to the patient through her daughter. The daughter denied being present during such times. 

Medical charting by doctors and nurses showed a communication barrier that impacted their ability to provide complete medical care, including such comments as: “patient deaf and dumb and difficult to assess,” “difficult to communicate,” “unable to speak, but by impression she looks better,” “able to communicate by writing things down on paper but some of the translation gets lost” and “admission [information] is incomplete [due to] the lack of communicating.” Doctors also admitted that they could not obtain a full medical history and could not tell the patient she had acute renal failure due to the inability to communicate with her.

There was evidence that both the patient and husband could lip-read, write notes and read simple written material. The hospital staff communicated with them through written notes, hand signals and using the patient’s pastor as an interpreter. Although one nurse had noted on the patient’s chart that there was a communication barrier, she considered the use of written notes sufficient to solve the problem.

The jury found in favor of the hospital, and the patient’s family filed an appeal. The appeals court analyzed the case under Section 504 of the federal Rehabilitation Act of 1973, which requires appropriate auxiliary aids as may be necessary to afford people with disabilities an equal opportunity to benefit or participate in provided services. To establish a violation, the plaintiffs would have to prove they were denied the benefits of services because the hospital did not provide an effective means of communication. Therefore, the only issue for the court to decide was whether the hospital provided effective communication even though it did not have a sign language interpreter.

Quoting from another judge’s opinion in a similar case, the appeals judge noted that “‘effective communication’ encompasses the idea that knowledge is shared in a manner that is capable of bringing about a desired result, that is, the occurrence of a communicative exchange. Deaf patients must be afforded a means to describe their symptoms, to relay important information about allergies, for example, and to inform medical staff about the basic circumstances surrounding their illness or injury.”

In light of this, the appeals court ruled that while reliance upon written notes was probably sufficient when providing everyday routine care, a sign language interpreter may have been required for communication with the patient regarding her medical treatment, such as when consents for procedures were obtained and when discussing the risks and benefits of the procedures. Therefore, the patient’s family was granted the right to a new trial.

Meeting the Community’s Language Needs: How One Hospital Did It

In response to federal and state requirements, most hospitals have some type of protocol for providing language assistance services to patients with limited English proficiency (LEP). But simply making these services available is not enough. Health care facilities must continually monitor and assess their language access programs to make sure they are sufficient and are adequately meeting the needs of the community’s population.

For example, Brooklyn Hospital in New York is required by federal and state laws to provide skilled interpretation services (verbal and written) to ensure effective communication. A community-based organization alerted the hospital to complaints it had received, along with results of a survey, indicating that many LEP patients felt they were not receiving adequate interpretation and translation services. In response, the hospital agreed to modify and improve its language assistance procedures.

Here are some of the policies adopted by Brooklyn Hospital with approval from the community group:

 

• The hospital shall inform all patients of their right to receive free interpretation services and shall provide a Patient’s Bill of Rights. The hospital shall also provide literature and signage, in each of Brooklyn Hospital’s primary languages, regarding free interpretation services and [procedures for] filing a complaint [about] lack of language assistance.
• At registration or admission, forms should include a question about what the patient’s native language is and whether an interpreter is necessary.
• The hospital shall develop a color-coded system to prominently mark records that accompany a patient throughout the hospital stay (including patient charts) to identify the patient as an LEP patient and identify the patient’s primary language.
• The hospital shall actively recruit bilingual staff who will undergo an evaluation of fluency and complete a medical interpreter training program. Only those staff members who have completed the evaluation and training process will be allowed to interpret medical information to patients.
• Training to be a staff interpreter will include instruction on the role of an interpreter, the mechanics of interpreting effectively, interpreter ethics, medical and anatomical terminology, relevant cultural issues and (for non-medical staff only) how medical providers gather information. Interpreter training will also include practice exercises (i.e., role playing) and post-training competency evaluation.
• The hospital shall conduct training sessions on an annual basis for all hospital staff regarding the hospital’s legal obligation to provide language assistance services to LEP patients and the hospital’s policies and procedures. All new employees will be trained on the hospital’s policies and procedures for language assistance.
• The hospital shall employ a number of such staff members collectively fluent in all Brooklyn Hospital’s primary languages, with each clinical department head ensuring at least one staff interpreter is assigned during all hours of patient care. In the event that adequate staffing cannot be maintained during the night shift, at least one of the nursing supervisors shall be designated as the language assistance coordinator.
• The hospital shall also utilize volunteer interpreters, [who are] also required to complete the language assessment of competency.
• The hospital shall maintain a language bank with the names of all staff and volunteer interpreters and their language expertise. A list of such names must be kept current and available at each patient admission or registration desk, information desk, nurses’ station, financial services area, billing area and pharmacy.
• If a staff interpreter or volunteer interpreter cannot be located within a reasonable time, the employee shall access a telephonic interpretation service to assist the patient.
• Employees should not use a person under 16 years of age as an interpreter, even at the LEP patient’s request.