Cultural Diversity Creates Language Barriers: Reducing Claims with Multilingual Patients

Rich Cahill, JD, Vice President and Associate General Counsel, and Susan Shepard, MSN, RN, Senior Director, Patient Safety Education, The Doctors Company

Ms. D., a naturalized U.S. citizen from Southeast Asia, presented to Dr. P. for a consultation regarding extensive acne scarring on her face and neck. The patient reported that she felt self-conscious about her appearance and sought advice on possible treatment options. According to the chart, Ms. D. spoke limited English. Her reading proficiency was not noted.

Following an examination of the affected area, Dr. P. offered CO2 laser resurfacing. The benefits and potential disadvantages of the procedure were discussed, including the possibility that her complexion type posed an increased risk of scarring and changes in pigmentation. Ms. D. subsequently agreed to undergo laser resurfacing and signed a written consent that specifically identified scarring and changes in skin color as possible postoperative outcomes.

The patient returned the following week. The treatment record reflects that Dr. P. performed the procedure under local anesthesia and conscious sedation. The surgery was uneventful, and no intraoperative complications occurred.

Ms. D. presented on numerous occasions over the next several months. Hyperpigmentation was noted, and Solaquin Forte 4% and Pramosone lotion were prescribed. At one point, the patient complained of experiencing a burning sensation on her face. Approximately one year after the procedure, Ms. D. returned for further evaluation. The scarring was barely visible; the discoloration on her neck was noticeably improved. However, the patient expressed dissatisfaction with the result.

Ms. D. thereafter retained counsel and initiated suit alleging causes of action for medical malpractice and negligent infliction of emotional distress. In substance, the patient claimed that because of her limited proficiency with English and the failure by the physician to utilize any translation services, including for any preoperative documentation, there was no informed consent.

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Providing Language Services: Obligations and Benefits

Clear and unambiguous communication constitutes the key component of the physician-patient relationship. Misunderstandings often create frustration and distrust, especially when an adverse event occurs, and can result in professional liability litigation or reports to state medical boards and third-party payers by disgruntled patients and family members. Proactively implementing office procedures for both physicians and staff to promote optimum communication reduces the risk of surprise and the potential for expensive, protracted, and unpleasant disputes.

With our culturally diverse national population, including many who speak a language other than English at home, language barriers raise the risk for an adverse event. The Department of Health and Human Services (HHS) Revised Guidance Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons outlines the requirements for recipients of federal financial assistance from HHS to take reasonable steps to ensure LEP persons have access to language services. (These recipients do not include providers who only receive Medicare Part B payments. However, providers that receive funding from any government program such as Medicaid or Medicare Advantage are subject to the requirements.)

To determine the extent of the obligation to provide language assistance, analyze the following four factors:

  • Number: The greater the number or proportion of LEP persons served or encountered by your clinic, the more likely language services will be needed.
  • Frequency: Even if unpredictable or infrequent, there must be a plan for providing language assistance for LEP persons.
  • Nature: Determine whether a delay in accessing your services could have serious or life-threatening implications. The more important the nature of the services you offer, or the greater the consequences of not accessing treatment, the more likely language services will be needed.
  • Resources: Consider the resources available and the cost to provide them. As a solo practitioner, you are not expected to provide the same level of service as a large, multispecialty group. Investigate technological services or sharing resources with other providers.

It is not recommended to use a family member as an interpreter. Lay personnel are rarely familiar with medical terminology. Additionally, the patient may not want a family member to access their confidential health information.

An adult family member should serve as interpreter if a family member must be used—unless no adult is available, and care must be provided immediately to prevent harm. It is preferable to have a trained clinical staff member provide interpretation; alternately, your practice can use certified interpreter services. Consult your local hospital or the patient’s health plan for a list of qualified interpreters. Other resources include a local nationality society, the Registry of Interpreters for the Deaf, or the local center for the deaf. Also, keep consent forms—especially for invasive procedures—translated into the applicable non-English languages by a certified translator.

The Agency for Healthcare Research and Quality (AHRQ) has prepared a guide, Improving Patient Safety Systems for Patients With Limited English Proficiency, which recommends that practices focus on the following:

  • Medication use: Understanding medication instructions is complicated for all patients, but even more difficult for LEP patients. Both patients and providers need to communicate accurately about mode of administration, allergies, and side effects.
  • Informed consent: Obtaining informed consent remains a hallmark of patient safety and a critical medical and legal responsibility. Achieving truly informed consent for LEP patients may require extra effort, but LEP patients should not be excluded from learning about choices that might affect their health and well-being.
  • Follow-up instructions: Understanding discharge instructions is especially challenging for LEP patients. Speaking Together: National Language Services Network, a project funded by the Robert Wood Johnson Foundation, which created the Speaking Together Toolkit, found the need for greater use of interpreters at key moments of information exchange, such as at assessment and discharge—not just during the acute phase of treatment.

Relatively simple communication tools can provide some helpful solutions. These include:

To protect your patients from harm resulting from their LEP, develop and implement a plan for language access in your practice. For more information, see the Centers for Medicare and Medicaid Services’ Guide to Developing a Language Access Plan.



The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

12/19

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