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We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Avoiding liability with interpreters”. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

Practicing medicine requires effective communication between doctors and patients. Some patients cannot hear their doctor. Others cannot understand their doctor. 

Interpreters play a pivotal role in not just serving the needs of patients but in preventing actionable errors by the doctor. 

However, getting an interpreter can be a financial and practical burden. That can lead the doctor to cut corners and so incur avoidable liability. 

In this column, we will look at avoiding liability with interpreters for (1) hearing-impaired patients; and (2) patients who have little or no English proficiency. 

1. Hearing-impaired patients

“I have to pay more for a sign language interpreter than I’m getting paid to see the patient?” 

We have all heard it. 

…but it is not quite as bad as that… 

To begin with, there is no explicit mandate for an American Sign Language (ASL) interpreter. 

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination by “public accommodations” on the basis of disability. Doctors’ offices are considered “public accommodations.”

However, the ADA only requires “reasonable accommodations” to bring about “effective communication.” If there are other effective means to communicate with a deaf patient, such as writing, lip-reading, or using family or friends as interpreters, the requirement can be met. 

Let’s look at an actual case to see how “reasonability” played out. 

A deaf lupus patient repeatedly asked her rheumatologist for an ASL interpreter, including giving the doctor an interpreter’s business card. That rheumatologist said that he could not afford the interpreter at a cost of $150 because he was only being paid $49 per visit. Instead, he communicated with the patient through her 9-year-old daughter and through her civil union partner, who primarily spoke Spanish.  

The patient did not feel free to seek care elsewhere. This eventually told the patient to see another doctor because of her repeated requests for an interpreter. 

The second rheumatologist took the patient off steroid treatment, which caused facial swelling.  Due to impaired communication, the first rheumatologist had never made the patient aware of this side effect. 

The patient sued the first rheumatologist under the ADA and the state’s anti-discrimination statute — for the failure to provide an interpreter.  

The jury returned a $400,000 verdict because the doctor’s substitutes for an interpreter – a young child and a woman who did not speak English well – were “not reasonable” when it came to explaining complex medical issues. 

Such cases are not typically covered under a malpractice insurance policy. ADA lawsuits are not for professional negligence but for intentional conduct governed by a separate statute. 

The take-home lesson is that any refusal to get an interpreter should be one you can defend as being reasonable under the medical circumstances. 

The devil in the details, though, is that the patient must agree to the suggested alternative. 

Admittedly, a small subset of the affected population will not consent to anything short of an interpreter.  However, most patients – who prefer that a stranger not be present at a private medical discussion – will actually agree to an alternative if they are assured the message they receive get will still be accurate.  

It is therefore best to formulate an office policy in writing for your front desk that states something like “As per Title III of the Americans with Disabilities Act, this office recognizes its responsibility to reasonably accommodate the needs of our hearing-impaired patients.  If you prefer that ASL be used when communicating with you, we encourage you to bring a  friend or family member of suitable age who is conversant in ASL to your appointment. If none is available and if communication in writing proves insufficient then this office can obtain an interpreter for you.”

You have thereby indicated an openness to a third party being there and have moved a hired interpreter down the list as an option, interposing an appropriate personal interpreter and written communication above it as reasonable alternatives.

You have also indicated that you actually know what the law requires…and what it does not.

The next issue is whether you will keep the patient who actually does need a hired interpreter in your practice.

It is always a good idea to have as your office policy that the first visit is simply to determine if you will accept the patient into your practice. This prevents the patient from reasonably believing that a doctor-patient relationship has formed just by that first visit having taken place. This gives you the flexibility to refuse to take any patient on more permanently. This should be told to new patients when they make the first appointment and then given to them in writing when they arrive for that appointment.

However, even in that general context as to all patients, the fact that a patient will actually prove costly is still going to raise suspicion if reject them only for that reason. You should be able to document an independently solid reason – their medical condition, insurance coverage issues, personal conduct of the patient while at the office –  unrelated to the cost of not taking on the patient who does need an ASL interpreter.

If you will be keeping the patient and they do need an interpreter, you can get assistance with that expense.

Although the ADA is an unfunded mandate, the tax code provides some help.

Under Section 44 of the Internal Revenue Code, tax credits (i.e.; reducing the taxes that you owe, rather than a tax deduction, which decreases your adjusted gross income) are available for “small businesses” (30 or fewer full-time employees or under $1,000,000 in annual revenues) to help cover the cost of making reasonable “access improvements” for individuals with disabilities, which includes obtaining a sign language interpreter or adaptive equipment such as a video relay system that allows a person with a hearing disability to make a relay call to communicate visually with an interpreter.

After the first $250, 50% of the eligible access expenditures can be claimed to a maximum expenditure of $10,250.  What this comes out to is a maximum credit for the tax year of $5,000.

Unless you have many deaf patients in your practice using interpreters and seeing you very often, this should significantly deflect your actual costs.

The final issue to consider is linguistic accuracy.  If you do not know ASL, how can you be certain that the translation is accurate? 

This brings us back to the issue of reasonability. Emphasizing accuracy on technical terms is a very good way to “sell” a patient on the idea of written communication. Your records should document that you made this point.

However, if the patient will not agree and you must bring in an interpreter, then you should bring one who has certified medical translation experience. You are then allowed to rely reasonably on their accuracy.

This brings us back to where we started – the fact that good communication prevents misunderstandings that can lead to a claim of malpractice. In this regard, you may prefer a certified interpreter rather than use whomever the patient brings with them. After all, the most expensive interpreter is cheaper than the cheapest lawsuit.

Before we move on to the next topic, here is a fact that will make many of you feel at least a bit better: Everything that applies here to doctors applies to lawyers as well and lawyers have also been successfully sued for non-compliance with the ADA.

2. Patients with limited English proficiency

This is primarily a hospital-based issue because patients will self-select physicians who speak their native tongue or have staff that does. (In the event that translation is occasionally needed in the office setting it can be accomplished through a video relay service.)

Title VI of the Civil Rights Act of 1964 prohibits exclusion from services and/or discrimination on the grounds of limited English proficiency.

It is therefore a Federal requirement for hospitals to have certified (a qualification since 2011) medical translators.  This can be accomplished via over-the-phone interpreter services and video remote interpreting if an in-person translator is not available or the language is not covered by in-house translators.

However, while using a trained and certified medical interpreter is the accepted standard, in real life it is far more common for doctors to use a staff member who speaks the language or someone accompanying the patient as their interpreter.

The good part is that it is efficient – after all, the linguistically knowledgeable person is standing right there.

The problem – both in terms of patient care and in terms of avoiding actionable errors – is that words mean things.

The Ramirez case from 1980 stands as an object lesson in the risks of using a casual interpreter who is not also conversant with medical terminology.

Willie Ramirez, a teenager in South Florida, spoke Spanish. He came to the hospital complaining of dizziness and a headache.

The problem is that the word that his family used to describe his symptoms was “intoxicado”, which can also mean feeling dizzy or nauseous just as it can mean being intoxicated.

That dual meaning led doctors to believe that Willie was suffering from an overdose for which they initiated treatment. However, Willie was actually suffering from an intra-cerebellar hemorrhage. He became a quadriplegic due to delayed treatment.

There is also the problem of cultural differences that can offend a patient and undermine the doctor-patient relationship.

For example, some of the potential words for “breast” in Spanish can be perceived to mean “tit” depending on which country the patient is from. A Spanish-speaking mammography technologist may thereby inadvertently offend the patient, who then makes a complaint against the doctor, in a way that a certified translator would not.

Bias or embarrassment by the casual translator can also introduce serious errors. For example, even an adult child translating for a parent will probably still be squeamish when discussing private health issues such as rectal bleeding or impotence that may be critical to a diagnosis.

This brings us to the same medicolegal issue which we discussed above as far as ASL interpreters – the reasonability of your reliance on communication mediated by someone whose accuracy you cannot verify personally.

The reasonability of that reliance decreases as you use increasingly casual interpreters.

A certified interpreter who has provably met a national standard allows the strongest level of reliance. A medical staff member would also be reasonably reliable. A hospital employee with no medical background or a family member of the patient simply does not afford you that level of certainty and could leave you vulnerable to a medical malpractice action based on a communication lapse like that in the Ramirez case.

You would also have difficulty defending your choice when the Federal standard – making it the Standard of Care – is the use of a certified translator. Other than in an emergency situation where it is not possible to wait for a translator or a video relay to be set up, you would be expected to use the most optimal translation available.

There is also another critical issue to consider when you have a patient who is not proficient in English: informed consent.

A consenting process done without an appropriate translator and then memorialized on a form written in English will be highly suspect if there is a later lawsuit. However, even a consent form written in, for example, Spanish, would be subject to a presumption of invalidity if the record is silent that a properly translated discussion occurred prior to signature.  On the other hand, your note in the chart detailing that the consenting process, including a review of the form itself, was translated by an appropriate person makes you very defensible.

This brings us to the usual critical medicolegal requirement: documentation.

Since you cannot predict what incident may ripen into a claim of liability or a complaint to a state medical board all contacts that are made through a translator should be documented.

If the patient elects not to use the hospital’s translation services in favor of a personal translator, this should be specifically documented, noting that the availability of free language assistance was explained to the patient in their native language (including identification of the person who translated that fact)  and that the patient knowingly declined those services.

In summary: To avoid liability translation must be adequate to reasonably allow communication about the complex issues involved in medical care. The ADA does not require an ASL translator if other reasonable accommodations can be made and translation services can be offset with a tax credit. Language translation is best performed by a certified medical translator and specific attention to documenting translation should be undertaken in all matters of informed consent.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.