Your Legal Risks When Patients Don't Speak English Well

Leigh Page

Disclosures

February 07, 2018

In This Article

A Growing Number of Patients With Limited English

Physicians face a tradeoff choice when they treat patients who don't speak English well. Providing high-quality interpretation and translation involves extra costs, but cutting corners to avoid those costs can lead to substantial clinical and legal risks.

Basically, doctors are expected to provide interpreters and translate documents for free for patients who are designated "limited English proficient" (LEP)—a term that the US Census Bureau uses to classify anyone over age 5 years who reports speaking English less than "very well."

Providing LEP patients with language services—both interpreters and translations of documents—costs money, whatever doctors decide to do.

Image courtesy of Spencer Grant/Alamy

LEP speakers are a mushrooming group in the United States. Their numbers grew by 80% from 1990 to 2013, when they crossed the 25 million mark, or 5% of the total US population older than 5 years, according to the Migration Policy Institute.[1]

Many—but by no means all—LEP individuals are undocumented immigrants, but as a group, they account for a substantial number of visits to physicians. In 2002, they made an estimated 37.8 million visits to outpatient healthcare providers, amounting to 4.1 million hours of interactions, according to the White House Office of Management and Budget.[2]

In many cases, however, physicians don't provide adequate services for these patients, says Glenn Flores, MD, a pediatrics professor at the University of Connecticut who focuses on language barriers in healthcare.

Dr Flores reports that physicians have gotten better at dealing with LEP patients over the years, but many of them still have a long way to go. "The obligation to provide service for LEP patients is an issue all over the country, even in isolated rural areas," he adds.

Potential for LEP-Related Malpractice Lawsuits

LEP-related malpractice lawsuits are a real possibility, because many doctors have not paid much attention to LEP patients' needs and often unknowingly violate basic standards of care.

"If you fail to provide adequate interpreting or translation and the patient was harmed, you could end up with a significant payout," says Mara Youdelman, a managing attorney at the National Health Law Program and a leading expert on LEP requirements.

In a study of 35 malpractice cases involving interpreting problems, 32 had to do with failure to use competent interpreters. In 12 of those cases, family members or friends were used as interpreters, including children in two cases. And 12 cases involved failure to translate important documents, such as informed consent forms and discharge instructions.[3]

Sometimes, non–native-speaking doctors think that they are fluent enough in a language such as Spanish to conduct the patient interview without an interpreter, Dr Flores says.

One of the 35 cases in the malpractice study involved a neurologist who did not think he needed an interpreter to treat a Spanish-speaking LEP patient. Although he admitted that his Spanish was "somewhat limited," he insisted that he spoke "medical Spanish" well enough.

But the patient said she could not understand his Spanish and sued for an unnamed injury. Citing the Unruh Act, a California civil rights law, her lawsuit claimed that the neurologist withheld language services with the intent to discriminate, but the suit was dismissed.

What sort of interpreter training would meet the standards of care in a malpractice case? Experts have not identified any particular level of training or certification. Although two national certifying agencies have specific standards, they have not certified enough medical interpreters. For instance, California has by far the largest concentration of LEP patients in the nation, but only 738 interpreters in the whole state were certified by either agency in 2015, according to a report.[4]

What are the chances of being sued by a LEP patient? Dr Flores says many LEP patients do not file malpractice lawsuits because they don't want to be identified. "You're talking about a population that tends to be recent legal or undocumented immigrants," he says. "Because they fear being deported, they are less likely to engage a lawyer and file a lawsuit."

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