Reduce liability risk when treating non-English speaking patients

April 4, 2008

Make sure you comply with antidiscrimination laws to avert legal problems.

Key Points

Cardiologist M.P. Ravindra Nathan, of Brooksville, FL, has never forgotten the elderly man who was admitted to his hospital after a stroke.

"He couldn't respond to any of my questions and had a blank expression," says Nathan, who regarded the patient as "totally aphasic." Then the patient's daughter showed up. "The man suddenly brightened and spoke a few words in what turned out to be his native Hungarian, which dispelled my initial impression of aphasia."

No misdiagnosis or injury resulted from this incident, fortunately. But it's a vivid reminder that language barriers can interfere with patient safety, leading to delayed diagnoses, care-plan miscues, medication errors, and poor patient follow-through. In one dramatic case, an 18-year-old who was brought unconscious to a Miami hospital suffered permanent neurological damage after a language misunderstanding between caregivers and the boy's Spanish-speaking mother and girlfriend caused proper treatment to be delayed. The malpractice suit that followed resulted in a whopping $71 million settlement.

Problems like these are likely to accelerate as the country becomes increasingly diverse. According to the latest Census Bureau data, 52 million US residents speak a language other than English at home. Of these, 44.6 percent-or roughly 23 million people-speak English "less than very well." And estimates of people with even greater language difficulty-those with "limited English proficiency (LEP)," that is-range from 11 million to 21 million, depending on who's doing the counting.

We'll tell you how to minimize your risk while doing right by your non-English speaking patients.

Know what's required of you

Federal antidiscrimination law is intended to protect such people in the healthcare arena, as well as in other areas. And, for the most part, physicians and other healthcare providers have taken steps to accommodate them, although not always in ways that adequately mitigate risk or ensure good patient care the way a professional interpreter would.

"Sometimes you can't find anyone other than a relative to translate obscure dialects from Eastern Europe or variations of tribal languages from Brazil," says Steven Kamajian, an FP in Montrose, CA. A pediatrician from Massachusetts who asked not to be identified puts the matter more bluntly: "In the private office setting, it's cost prohibitive, impractical, and idealistic to expect a doctor to do anything other than have a relative or friend of the patient help with the translation." He'd "go by the book," he admits, only in the most extreme cases.

Comments like these are understandable. And yet in situations where family members (sometimes, patients' young children), friends, or other "ad hoc" interpreters are clearly inappropriate-when they don't understand medical terminology, say, or when the patient objects-it's imperative that physicians provide the appropriate language services.

"Not getting it right not only leads to medical errors and potential life and death consequences, but also legal risk for providers," says Mara Youdelman, a staff attorney with the National Health Law Program, a public interest law firm.

Both federal and state laws govern what you must do to provide "meaningful" language access to your LEP patients.

Title VI of the Civil Rights Act of 1964 is the most inclusive federal legislation. Among other things, it prohibits healthcare providers who receive federal money-from Medicaid, SCHIP, Medicare, or other government programs-from discriminating on the basis of national origin. That includes language discrimination, the Supreme Court has determined. Under Title VI, according to HHS guidelines, physicians and other HHS recipients must take "reasonable steps" to ensure meaningful access to their LEP patients.