The High Costs of Language Barriers in Medical Malpractice

1. The High Costs of Language Barriers in Medical Malpractice Mara Youdelman Senior Attorney youdelman@healthlaw.org QHCDP Conf. – Oct. 19, 2010 “Securing Health Rights for Those in Need”

2. LEP Demographics American Community Survey, 2007, Table B16001. LANGUAGE SPOKEN AT HOME BY ABILITY TO SPEAK ENGLISH FOR THE POPULATION 5 YEARS AND OVER - Universe: POPULATION 5 YEARS AND OVER • Over 55 million people speak a language other than English at home (an increase of 8 million since 2000) and 19.7% of the population. • Over 25 million (9 % of the population and an increase of 3 million from 2000) speak English less than “very well,” and may be considered LEP. • Who is LEP? • A person who is unable to speak, read, write or understand the English language at a level that permits him/her to interact effectively with health and social service agencies and providers

3. Treating LEP Patients Source: Reports commissioned by NHeLP from AHA/HRET, ACP, NACHC; available at www.healthlaw.org 80% of hospitals encounter LEP patients frequently – 63% daily/weekly; 17% monthly 81% of general internal physicians treat LEP patients frequently – 54% at least once a day or a few times a week; 27% a few times per month 84% of FQHCs provide clinical services daily to LEP patients – 45% see more than ten patients a day; 39% see from one to 10 LEP patients a day

4. National Health Law Program • NHeLP is a national, non-profit organization working to improve health care access and quality • With the generous support of The California Endowment, NHeLP began the National Language Access Advocacy Project in 2003

5. National Efforts to Improve Language Access • National Coalition convened by NHeLP • Participants – health care provider organizations, advocates, language companies, interpreters and interpreter organizations, accrediting organizations • Goals – A consensus-driven agenda to improve policies and funding for access to quality health care for individuals with limited English proficiency (LEP). Developed Statement of Principles and guide with approx. 100 endorsers

6. Coalition’s Activities • The Language Services Resource Guide for Healthcare Providers • includes information about conducing a language services needs assessment, language services resource locator (including information on interpreter associations and language companies), training programs, multilingual resources, and healthcare symbols • National surveys of hospitals, general internists, community health centers • CBPP/NHeLP issue brief on Medicare and language services

7. Reported Cases pre-2009 • $71 million settlement in FL • $250k settlement in OR • Reported in the literature • A 6-week-old infant was admitted for a barbiturate overdose caused by a 10-fold medication dosing error by an LEP mother who did not understand the outpatient dosing instructions available only in English. • A 10-month-old girl hospitalized for iron intoxication after a 12.5-fold overdose of iron. Her LEP parents were given medication instructions and a prescription only in English. When asked in Spanish, the parents reported giving 15 mL of iron elixir based on the prescription label that read: “15 mg per 0.6 mL, 1.2 mL daily.”

8. Study Background • NHeLP commissioned UC Berkeley School of Public Health • Reviewed med mal cases from one malpractice insurance carrier • Criteria for identifying relevant cases: • patient or physician spoke a primary language other than English; • was unable to speak English; or • was limited English proficient

9. Findings • 35 claims over 4.5 years • 2.5% of carrier’s total • Over $5 million paid in damages, settlements, legal fees • 32 of 35 cases – failure to utilize competent interpreters • 12 cases involved failing to translate important documents • Nearly all cases had poor documentation of language needs, language services utilized, etc. • 2 children and 3 adults died; others suffered major harm (amputation, organ damage)

10. The “Tran” Case • 9 year old died after reaction to Rx • Parents spoke Vietnamese • Patient and her 16 year old brother served as interpreters • Expert Witness at Trial (professional interpreter): • Conducting the communications without a professional medical interpreter failed to meet the standards of care applicable for the physician and the facility. The effect is [that] she did not receive the care she should have. The parents were not able to adequately understand and address her medical needs. In my opinion, the failure of the doctor and the facility to provide a professional medical interpreter was a substantial factor in causing [patient’s] death.

11. Failure to Provide Competent Interpreters • 32 of 35 claims had no documentation of use of competent interpreter • 12 cases utilized family members or friends including 2 cases using minor children

12. Defective Informed Consent and Lack of Translations • 12 cases involved defective informed consent or lack of translations • Cases repeatedly indicated patients signed informed consent forms only in English • Most cases had no documentation that physician discussed the course of treatment with the patient using an interpreter

13. Inadequate Documentation • Some cases documented language but often inconsistent • In a hospital chart, one patient’s language was recorded as Amharic while ambulatory surgery process record noted language as Arabic • Records documented one patient as from Hong Kong, Macau or Saigon, race as “Asian” and never mentioned that patient was Cantonese-speaking

14. Recommendations for Malpractice Carriers • Improve monitoring and tracking of claims by LEP patients • Establish specific codes to identify languages spoken by patients and providers to ease identification of relevant cases • Conduct ongoing analysis of claims to identify risks and trends

15. Recommendations for Malpractice Carriers • Identify methods of reducing claims based on language issues including: • Education of insureds • Contract requirements for insureds to provide language services • Explore methods of improving documentation by insureds’ of patients language needs and provision of language services

16. Recommendations for Providers • Clearly and consistently document patient’s primary language • Offer every LEP patient competent interpreters at each encounter and, if refused, document refusal • Record use of language services • Provide competent interpreters at each key point of non-healthcare contact

17. Recommendations for Providers • Document and describe the informed consent discussion • Translate informed consent forms, written discharge instructions, and other key medical/legal documents • Explain key forms and provide time to answer questions • Use methods to ascertain understanding

18. Conclusions • Monetary and non-monetary costs can be avoided with effective communication • Patients – medical harm • Providers – damages, legal fees, time lost to defending lawsuits, loss of reputation & patients, fear of monetary loss, stress/distraction of litigation