Language Barriers and Medical Malpractice

One misunderstood word resulted in 18-year-old Willie Ramirez becoming quadriplegic.

It was the year 1980. Ramirez had been enjoying a night out when he felt a sudden, sharp pain.  “It felt like someone was sticking a needle through my head,” he recounted in a recent interview for Health Affairs. Ramirez managed to drive himself to his high school girlfriend’s house, where he collapsed and lost consciousness.

Nobody knew what was wrong with him, but his mother and his girlfriend’s mother speculated that it may have been food poisoning earlier in the day, he had eaten a burger at a newly-opened Wendy’s. His girlfriend’s mother attempted to convey this to the paramedics, using a combination of English and Spanish. She used the Spanish word “intoxicado,” which can be used to refer to both intoxication and food poisoning. She recalls attempting to clarify that there was “no alcohol, no drugs,” but this may have been difficult to understand with her thick accent.

The paramedics assumed “intoxicado” meant drug abuse, and treated Ramirez accordingly. As a result, they failed to recognize the true cause of his symptoms: a brain hematoma. Had they known this earlier, they could have performed a timely operation, and he could have walked out of the hospital. Instead, he will never walk again.

Why Are Interpretation Services So Important?

Ramirez’s story underscores just how critical language interpretation is in healthcare. If a Spanish-English medical interpreter had been present, the doctors not only would have understood that “intoxicado,” didn’t necessarily imply the use of alcohol or illicit substances, but also could have communicated with Ramirez’s family in much greater detail. The family could have explained that drug abuse would be extremely out of character Willie rarely drank, even in moderation, and was strongly opposed to drugs (1).

Healthcare providers who receive federal funds (such as Medicare or Medicaid) have a legal obligation to provide patients with interpretation/translation services if they have a language barrier or sensory impairment (such as deafness). This requirement is outlined in Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Affordable Care Act (ACA). In 2016, Section 1557 of the Affordable Care Act was altered in order to strengthen access to healthcare information. Two key changes were made:

  1. Healthcare providers must now use qualified medical interpreters (2). Certifications from the following organizations are accepted: the Certification Commission for Healthcare Interpreters, the National Board of Certification for Medical Interpreters, and the Registry of Interpreters for the Deaf (3, 4).
  2. Patients with limited English proficiency (LEP) can now sue healthcare providers for failing to provide adequate interpretation/translation services (2).

If a medical professional or organization neglects to seek assistance from a qualified medical interpreter and/or does not provide translated written materials, and therefore makes an error that harms the patient, this constitutes medical malpractice.

Unfortunately, doctors and nurses often rely on their own rudimentary language skills or ask a nonprofessional (such as a patient’s family member or friend) to interpret for them. This can be problematic for a variety of reasons:

False Cognates Create Dangerous Misunderstandings in Healthcare

Inexpert translation can easily lead to dangerous misunderstandings, as we have seen with the Rodriguez case. “Intoxicado” is just one of many false cognates that can create problems. The following are a few other examples in Spanish:

    • Embarazada may sound like “embarrassed,” but it actually means “pregnant.”
    • Constipado may sound like “constipated,”  but it can actually be used when talking about a head cold.
    • Chocar may sound like “choke,” but it actually means “strike.”
    • Molestar may sound like “molest” (in a sexual way), but it actually means “to annoy/bother” (in a more general way).
    • Injuria may sound like “injury,” but it actually means “insult” or “slander” (5)

Of course, misunderstandings can arise from issues other than false cognates. Other causes of misunderstandings include improper pronunciation, difficulty understanding accents, unfamiliarity with idioms, etc. A doctor or patient may believe they understand the “gist” of a conversation, but even a missed word or phrase can drastically alter the meaning of a sentence for example, changing an answer from affirmative to negative (1).

Inability to Communicate About Complex Topics

People who do not speak the same language with a high level of proficiency are limited in the scope of their conversations. A patient may be able to make small talk in English, but lack a medical vocabulary, and struggle to understand complex explanations. Doctors are required to discuss patients’ health and treatment options with them (or with a parent/guardian/surrogate decision maker) in order to obtain their informed consent before pursuing a specific course of action. Informed consent discussions should be tailored to a patient’s linguistic background and hearing ability for many patients, it is necessary to use an interpreter in order to ensure that they truly understand everything that is being said and are able to ask questions about anything that is unclear. An interpreter can also explain what it is written on an informed consent document (if available, translated documents should also be provided).

Case Example: Lack of Informed Consent Due to Language Barrier

In one of our birth injury cases, language barriers and a lack of informed consent resulted in a baby sustaining serious brain damage. The mother (for the sake of privacy, we will call her “Salma”) spoke Arabic, and very minimal English. Despite this, her doctors provided translation services only intermittently, resulting in extremely poor communication. Moreover, Salma was insufficiently monitored throughout her labor and delivery. Her doctor decided not to do a vaginal examination, later stating that he “knew” Salma did not want a male doctor (in fact, no such preference was specified in her medical records). He was the only OBGYN at the hospital on that date, so he delegated tasks to a female nurse that, according to hospital policy, should have been done by a doctor. For example, he asked the nurse to perform an amniotomy (artificially rupture the fetal membranes). If the baby’s head is not engaged in the pelvis, an amniotomy can cause the umbilical cord to slip through the birth canal before or alongside the baby, potentially becoming compressed between the baby’s head and the presenting part of the cervix. This is called umbilical cord prolapse and compression; it can dangerously reduce the flow of oxygenated blood to the baby and cause lasting harm. The nurse was aware of this risk, but did not discuss the procedure with Salma, because there was no interpreter present.

Once it became clear that there was an umbilical cord prolapse, the medical team realized that Salma’s baby required an emergency C-section. They attempted to explain this to her and her husband, but did not call for an interpreter. At one point, Salma’s husband left to get another person who could speak both Arabic and English. Forty minutes after the umbilical cord prolapse was identified, the medical team finally decided to use an over-the-phone medical interpretation service. Once she spoke to the interpreter and understood the severity of the situation, Salma agreed to the surgery, but by that point it was too late to prevent permanent harm to the baby. Today, Salma’s daughter has spastic quadriplegic cerebral palsy, and cannot walk, talk, see, or feed herself. All of this could have been avoided if the hospital had simply called an interpreter earlier.

Stress and Emotional Trauma

In addition to potentially leading to lifelong physical problems, inadequate translation can be traumatic to patients and their loved ones. Gail Price-Wise, who interviewed Willie Ramirez for the aforementioned article in Health Affairs, experienced this first-hand when her stepmother was thrown from a horse and sustained a vertebral fracture while traveling in French-speaking Guadeloupe. “My French isn’t fluent,” wrote Price-Wise, “but I would guess that it’s better than the English spoken by many family members who are asked to interpret in US hospitals.” Although her stepmother ended up being okay, the situation was very stressful:

“The fear of a spinal cord injury added urgency to my attempts to accurately interpret a foreign language. ‘Does she have neurological damage or not?’ I struggled to pronounce ‘neurological’ in French and hoped they would understand me. The response: ‘There doesn’t appear to be any neurological damage.’ I didn’t understand the French phrase for ‘there doesn’t appear to be’ and asked the doctors several times to repeat it, as family members waited wide-eyed for me to interpret what was being said.”

In many cases, interpreting for a family member puts someone in the position of having to deliver bad news (1). Often, the amateur interpreter is a minor imagine a child having to tell a parent or sibling about a cancer diagnosis, or that they need a major surgery. That sort of news is traumatic enough for a child to hear, let alone be responsible for informing others.

How Often Does Improper Interpretation Lead to Medical Errors?

This question is difficult to answer because language-related errors are likely underreported (6). The same inability to communicate that leads to medical errors can also prevent patients with limited English proficiency from recognizing when they are given inadequate care, communicating their concerns, or reporting incidents of malpractice. LEP patients may also be unfamiliar with the medical and legal systems in the U.S.; they may not understand that they have a right to interpretation services, and may also not understand what legally constitutes malpractice. Additionally, some people may believe (incorrectly) that filing a complaint could affect their immigration status (7).

Although the exact incidence of language-related errors is unclear, studies have shown that LEP patients are at higher risk for negligences such as wrong procedures, improper medication, and avoidable readmissions (6). One study found that 2.5% of malpractice claims involved issues with language access (8). As Dr. Glenn Flores, the director of pediatrics at the UT Southwestern Children’s Medical Center in Dallas, told Modern Healthcare, “This [language barriers] is an area where you see some of the worst patient-safety problems.”

A 2012 study revealed that even professional interpreters often made mistakes, such as using idioms that didn’t make sense in the patient’s language, adding their own opinions, or omitting words. Moreover, 18% of the errors they made created a safety risk. Interpreters who had been through at least 100 hours of training were more competent  (6).

How Can Hospitals Better Serve LEP Patients?

The Joint Commission, which evaluates and accredits nearly 21,000 healthcare organizations and programs in the U.S., outlines best practices for handling language barriers in their publication, “Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care: A Roadmap for Hospitals” (9).

The Joint Commission notes that hospitals must identify the patient’s preferred language for discussing healthcare; even if the patient speaks English fluently enough not to struggle with casual conversations, they may prefer to communicate in another language when discussing complex topics (such as medical complications) or dealing with stressful situations. If the patient cannot understand the question “In what language do you prefer to discuss your health care?” in English, hospitals should use language identification cards or tools, or arrange for language services to help identify a patient’s language. For patients who communicate using sign language, it is also important to identify which sign language (i.e. American Sign Language, Signed English, or a sign language from another country). Once established, the patient’s preferred language or the language preferred by the patient’s parent(s), guardian, or surrogate decision-maker should be included in their medical record. This will help other staff members quickly ascertain whether an interpreter is needed. Moreover, it will alert staff to provide translated documents (such as informed consent forms) when available. If translated documents are unavailable, the clinician should use an interpreter to explain what each document means.

The Joint Commission mandates that hospitals “Refrain from relying on untrained individuals, including a patient’s family members or friends, to provide language services,” and stresses that professional interpretation minimizes the risk of medical complications. They also recommend that, whenever possible, interpretation services should be offered to patients’ family members who may otherwise be excluded from important conversations.

Mara Youdelman, managing attorney at the National Health Law Program in Washington, D.C., concisely explained these requirements to Smithsonian Magazine:

“If you have someone who is limited English proficient who comes in for services, you need to ensure that they have meaningful access to your programs. You can’t turn them away because they don’t speak English. You can’t say, ‘Come back next Wednesday when my bilingual staff person is here.’ You can’t make them bring their own interpreters. These patients should have the same access as an English speaking patient does” (7).

What Funding Exists for Medical Interpretation?

States are not required to reimburse healthcare providers for the costs of medical interpretation. This means that although hospitals are required to provide such services, the costs may need to be factored into existing reimbursement rates. Because of this, healthcare providers who work in places with a higher percentage of LEP patients may have to divert funding for other important programs into healthcare interpretation. Therefore, even if LEP patients do not suffer the costs of inadequate interpretation, they may be otherwise disadvantaged when it comes to the healthcare they receive (7).

Given all the evidence that language barriers can lead to medical errors, however, not providing interpretation services is simply not a viable solution to budgetary concerns. As Terena Bell put it in her Slate article,

“The right to understand what doctors are doing to your body is fundamental. The right to know your own diagnosis is basic, to know when surgery is being performed on what, to understand why people are putting needles and tubes inside of you. Interpreting isn’t too expensive it’s essential to providing accurate care. Hospitals’ failure to appreciate and act on this is not a failure that we should dismiss for mere budgeting” (3).

Francesca Gany, director of the Center for Immigrant Health and Cancer Disparities at Memorial Sloan Kettering Cancer Center, explained to Smithsonian Magazine just how great of an impact proper interpretation can have on a patient:

“I have seen what happens before and after we have implemented interpreter services. Patients are so grateful that they jump up and give you a hug, because it is the first time that they have felt understood in a doctor’s office…It makes a huge difference” (7).

Did You Experience a Medical Error Because of Inadequate Interpretation?

If a hospital or medical professional failed to provide you with the interpretation services you need, they were breaking the law. If a medical professional’s  inability to communicate with you caused illness, injury, or improper treatment, you may consider pursuing a medical malpractice lawsuit.

The medical malpractice attorneys at Reiter and Walsh ABC Law Centers specialize in birth injury/neonatal malpractice. We have extensive experience in this area, and have previously handled cases involving interpretation and translation issues.

To find out if you have a case, contact our firm to speak with one of our lawyers. We have numerous multi-million dollar verdicts and settlements that attest to our success, and no fees are ever paid to our firm until we win your case. We give personal attention to each child and family we help, and are available 24/7 to speak with you. If needed, we can provide interpreters to help you understand the legal process.

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Sources

1)  Price-Wise, Gail. “Language, culture, and medical tragedy: The case of Willie Ramirez.” Health Affairs Blog (2008).

2)  “Legal Risk & Compliance.” In Demand Interpreting, www.indemandinterpreting.com/wp-content/uploads/2017/03/InDemand-Interpreting-Trends-risk-1.pdf.

3)  Bell, Terena. “It’s Illegal for Hospitals to Not Provide Translation Services. So Why Is Proper Translation Still Scarce?” Slate Magazine, Slate, 27 Dec. 2017, www.slate.com/articles/health_and_science/medical_examiner/2017/12/hospitals_should_figure_out_how_to_provide_translation_services.html.

4)  McClymont, Geri. “How to Become a Medical Interpreter: Credentials, Training, and Certification.” ToughNickel, ToughNickel, 23 July 2018, toughnickel.com/industries/How-Do-I-Become-a-Medical-Interpreter.

5)  “An Argument for Professional Interpreters – False Cognates.” Alfonso Interpreting, alfonsointerpreting.com/an-argument-for-professional-interpreters-false-cognates/.

6)  Rice, Sabriya. “Language liabilities.” Modern Healthcare 44 (2014): 35.

7)  Hoffman, Adam. “Millions of Americans Are Getting Lost in Translation During Hospital Visits.” Smithsonian.com, Smithsonian Institution, 28 Sept. 2015, www.smithsonianmag.com/innovation/millions-americans-are-getting-lost-translation-during-hospital-visits-180956760/.

8)  Quan, Kelvin, and Jessica Lynch. “The high costs of language barriers in medical malpractice.” Berkeley: National Health Law Program, University of California (2010).

9)  Joint Commission. Advancing effective communication, cultural competence, and patient-and family-centered care: A roadmap for hospitals. Joint Commission, 2010.

 

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