Making sure your patients know what you're saying
■ Communication barriers continue to pose legal risks if doctors fail to provide adequate language assistance to patients who are deaf or don't speak English.
By Amy Lynn Sorrel — Posted April 20, 2009
When Richard Sagall, MD, had a deaf patient request that he provide a sign language interpreter for the initial visit, he was left scratching his head.
"From what I read, the law didn't say you had to provide an interpreter. It just said you had to have good communication," said Dr. Sagall, a family physician who is now retired in Boston. He turned to a nearby hospital for help, where he found an emergency department orderly who knew sign language to assist in the conversation.
Despite Dr. Sagall's efforts, however, the patient insisted that he pay for an interpreter of her choosing. After the initial visit, the patient never returned. The encounter left Dr. Sagall unsettled.
"There was some ambiguity in the law, and the problem came up as to who was going to define effective communication. Was it just the patient or not?" he said. "I felt I was meeting the letter of the law."
Doctors frustrated with picking up the tab for interpreter bills that can exceed reimbursement continue to search for alternatives. But language barriers continue to pose a world of questions -- and legal risks, if physicians fail to provide adequate assistance.
A New Jersey trial judge on March 10 upheld a $400,000 jury award in a discrimination claim against a doctor who refused to pay for a sign language interpreter at a deaf patient's request. The doctor had treated the patient for nearly two years, relying on written notes and the patient's family members. The award -- half of it in punitive damages -- is believed to be the largest of its kind. The court also tacked on attorney's fees, bringing total damages to $635,000. An appeal in Gerena v. Fogari is expected.
The case highlights doctors' obligations under state and federal antidiscrimination laws to ensure effective communication with patients who have language difficulties. Those statutes, in addition to federal regulatory guidance, "give doctors some substantial flexibility in what kinds of services or ancillary aids they can use," said Paul J. Russoniello, a New Jersey labor and employment lawyer who works with physician practices. "But the bottom line is, physicians want to be assured communication is effective enough for the services they are providing."
Finding a balance
While there is no clear definition of effective communication, courts and federal regulators consider a range of factors aimed at making sure patients have meaningful access to medical care, without imposing an undue burden on smaller physician practices, said Russoniello, a partner at the law firm Flaster/Greenberg.
Because most cases settle, there are few court precedents guiding the issue, legal experts say. The standards come from two areas of federal law addressing access for hearing impaired patients and those with limited English proficiency.
The Americans with Disabilities Act and similar state laws generally prohibit discrimination on the basis of disability. They require physician offices to provide reasonable public accommodations to ensure effective communication. The Rehabilitation Act bars discrimination by anyone who receives federal financial assistance, which includes physicians participating in Medicare, Medicaid or any other joint federal-state program.
"With any reasonable accommodation, it has to be a discussion between the two parties to try to come to a resolution," said Sharona Hoffman, co-director of the Law-Medicine Center at Case Western Reserve University in Ohio.
Similarly, Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of national origin, which the Dept. of Health and Human Services has interpreted to include language. The statute also applies to doctors accepting federal funds. Doctors participating exclusively in Medicare Part B may be exempt.
HHS regulations require physicians to create a plan for accommodating non-English speaking patients using four factors: number of patients with limited English skills, frequency of visits, importance of service provided, and available resources and costs. Federal guidelines also spell out a variety of tools physicians can use to communicate with deaf or non-English speaking patients, from written notes or documents to video, telephonic or computer-based translator services to bilingual staff.
Whether a qualified interpreter is required generally depends on the seriousness or urgency of care, Russoniello said. For example, a complex diagnosis or treatment decision, such as surgery, likely warrants an interpreter, as opposed to routine or maintenance care.
Cost still an issue
Physicians don't deny the need for effective communication. But they say the unfunded legal mandates leave doctors to bear the expense. For that reason, doctors say they should be part of the conversation -- as in any other treatment decision -- as to whether a translator is required.
"We trust our doctors to tell us when we should have an operation, what drugs we should take. We should trust those same doctors in deciding when an interpreter is needed," and when other resources are appropriate, said gastroenterologist Anmol S. Mahal, MD, a past president of the California Medical Assn.
Doctors fear that a decision like that in New Jersey could cause other viable, yet economical, options to disappear. "If this stands, it would change the expectations for physicians in terms of providing communication services and would also most likely make it much more costly," said Lawrence Downs, general counsel to the Medical Society of New Jersey, which plans to get involved in the case on appeal.
A panel of the 9th U.S. Circuit Court of Appeals on March 18 rejected a challenge by a group of physicians to HHS' policy mandating accommodations for patients with limited English proficiency. Judges in Colwell v. HHS said the doctors had the right to sue, recognizing that the regulation imposed a potential cost burden and could interfere with the doctor-patient relationship. But because the rules appeared somewhat flexible and HHS had yet to enforce any sanctions, they posed no immediate hardship, the court said. The doctors plan to ask the full court for a rehearing.
Courts will consider cost factors, as well as the impact of interpreter expenses on a smaller versus a larger practice, Hoffman said. But that evaluation typically hinges on an analysis of a physician's overall financial resources, not reimbursement for a particular visit.
Cost is a concern, but the law recognizes overall that "quality is at stake when patients can't effectively communicate in the doctor-patient relationship," said Mara Youdelman, director of the National Health Law Program's Language Access Advocacy Project. In addition to potential antidiscrimination violations, doctors also risk exposure to medical liability claims if misinterpretations jeopardize care.
Youdelman pointed to a 1984 Florida case in which a Spanish-speaking patient won a $71 million settlement after a hospital and its emergency staff misinterpreted the man's condition -- intoxicado, or nauseous -- as a drug overdose. The patient sued over the alleged misdiagnosis after it turned out he had a brain clot and ultimately became a quadriplegic.
Referring patients elsewhere also poses risks, said Linda C. Fentiman, a health law and bioethics professor at Pace Law School in New York. "There's this underlying issue of whether a referral is really a pretext to not treat the person -- which has the potential for discrimination -- or is it really to get the person better care."
The use of family members is discouraged for fear that privacy concerns or personal or cultural opinions will inhibit effective interpretation and interfere with care decisions, she said.
An ongoing conversation
The American Medical Association advocates for federal funding for medical interpretation services and other solutions to help relieve physicians. AMA policy also supports physicians' ability to use a variety of appropriate means to facilitate patient communication and continues to study how the use of interpreters, trained and untrained, affects patient care.
States have the option of using Medicaid or Children's Health Insurance Program funds to cover interpreter costs, though only about a dozen choose to do so, according to the National Health Law Program.
California recently became the first state to require health insurers to pay for interpreters for members with limited English-speaking abilities in doctors' offices and other facilities. The law applies to the most common language or second most common spoken by an insurers' members. State physicians welcomed the support, with cautious optimism.
"The mechanism ... should not be such that it hampers physicians' ability to provide services to their patients" by requiring additional time to set up the service and delaying care, the CMA's Dr. Mahal said. The CMA took no position on the statute.
The quality of interpreters is a top concern among doctors, said Donna Zimmerman, vice president of government and community relations at HealthPartners. The Minnesota-based health care system covers language assistance services for its hospitals and clinics. But Minnesota, like most states, does not certify interpreters.
"It's a big frustration when interpreters don't show up or [doctors] don't trust those interpreting," she said. That's why HealthPartners began training a pool of internally hired interpreters.
Zimmerman said costs are an issue: The health system in recent years has seen double-digit increases in its language service expenses as demographics have evolved.
"There's a strong consensus these services are important, not just because they are legally required, but because they make care safer and better," she said. "And that's something we can all agree on."