Many theories, rationales and explanations have been advanced in support of providing qualified, effective language assistance to Limited English Proficient patients – legal requirements, patient safety, quality of care, 30-day readmission reductions, and more.
The March 2017 issue of the American Medical Association’s Journal of Ethics advances another, highly cogent argument in support of qualified, effective language assistance in health care – It’s a matter of physicians’ ethical obligations.
Language Assistance and Physician Ethics
In an article entitled, “Clinicians’ Obligations to Use Qualified Medical Interpreters When Caring for Patients with Limited English Proficiency,” the authors examine the ethical situation that confronted Shiv, a fourth-year medical resident.
As the authors, Dr. Gaurab Basu, Vonessa Phillips Costa, and Dr. Priyank Jain, explain:
“Shiv is rotating with a couple of residents, the attending physician wants to demonstrate some skin findings on a patient, a Haitian woman with an immunologic condition who has limited English proficiency. The attending physician briefly explains, in English, to her and the residents what they will be looking for. As she is giving a hesitant nod to his request, he abruptly pulls down her hospital gown exposing her breasts.
She seems to be acutely uncomfortable, her eyes widen, and her arms remain paralyzed at her sides. She doesn’t say anything. Having spent a year working on tuberculosis (TB) in Haiti, Shiv happens to speak Haitian Creole and, sensing her discomfort, asks her in Creole if she is OK and explains that it is a teaching session. This seems to calm her somewhat. The attending physician chides Shiv for carrying on a conversation with the patient that the rest of the group can’t understand and accuses him of detracting attention from his teaching time. Shiv wonders how to respond. “
The authors note the patient’s legal right to language assistance and how the attending physician did not provide the patient with the language services she needed to understand the health care communications and interactions taking place in front of her. “In this vignette, the Haitian patient’s right to access language services was ignored, and the patient experienced unnecessary emotional distress. We believe that some of the patient’s emotional distress could have been avoided by trying to more meaningfully and clearly communicate with her via use of a qualified medical interpreter.”
A Complex Decision for Healthcare Providers
In the above scenario, Shiv found himself in a potential no-win, fraught situation. Does he intervene at potential risk to his career? Does he use his own language ability, even if he is not qualified to interpret?
The authors opine:
“Shiv finds himself with a complicated conflict of interest due to his dual roles as a clinician-in-training and possible interpreter. He probably could have prevented some harm to the patient by asking his attending physician to use a qualified medical interpreter at the beginning of the encounter. He did not do this, presumably because such interference could have angered the attending physician, thereby negatively impacting his career ambitions.
It is important to highlight that this dynamic was a direct consequence of the failure of the attending physician as a medical educator. Medical educators have a responsibility to role model medical professionalism, to teach students about patient rights, and to create a healthy learning environment. The attending physician failed as a medical educator when he did not use a qualified medical interpreter—not to mention when he abruptly disrobed the patient—and then chided Shiv when he attempted to respond to her vulnerability. While Shiv could possibly have done more to intervene, including requesting a qualified medical interpreter, we believe the poor outcome of this encounter is squarely the attending physician’s responsibility. ”
Language Assistance and Informed Consent
The failure here to provide effective language assistance also implicated informed consent. Without a qualified interpreter or an assessed bilingual staff member to discuss the encounter in a language the patient understands and then obtain her permission to move forward medically, there likely is a problem with informed consent in this scenario. According to the authors, “…the attending physician undermines the patient’s autonomy and informed decision making. Shiv tries to intervene, but even if he had been interpreting from the beginning of the encounter, the AMA Code of Medical Ethics statement on informed consent still would not have been upheld. “
In order to prevent the problems Shiv encountered and wrestled with, the article concludes by stating, “We believe that institutions providing health care and training should have processes to prevent transgressions such as those represented in this case.”
Clearly, meaningful language assistance education of physicians and medical students is an integral, vital part of understanding the legal and ethical issues and requirements that underlie language assistance. Indeed, such education likely would have prevented the article’s scenario from occurring.
Providing effective assistance touches many bases in health care, not the least of which is ensuring the highest quality of patient care by providing the highest quality of communication in languages patients understand. At the end of the day, the patient’s health comes first. But if she cannot understand what medical professionals are recommending, the inherent communication impasse imperils the life, safety, ad comfort of the patient and presents significant liability and ethical problems for the attending medical staff.
Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.