When patients don't speak English, what is the risk?
Understand your obligations under the law
(Editor's note: This is the second story in a two-part series on caring for non-English-speaking patients in the ED. This month, we give strategies to reduce liability risks. Last month, we reported on what ED nurses can do to decrease communication delays.)
Like many ED nurses, you're probably caring for an increasing number of non-English-speaking patients. But did you know these patients present significant liability risks for ED nurses?
Federal regulations require all hospitals that receive federal financial assistance to provide meaningful access to patients with limited English proficiency. If you fail to provide this access, it could result in lawsuits, fines, and violations of federal regulations, says Sue Dill, RN, MSN, JD, director of hospital risk management for Columbus, OH-based OHIC Insurance Co.
"Many ED nurses are not aware that a violation of the interpreting standards is not only a violation of CMS [Centers for Medicare & Medicaid], Office of Civil Rights, and Joint Commission standards — but the Department of Justice may also be visiting the hospital as well," she warns.
Be aware of your obligations under federal law, advises Patricia Iyer, RN, MSN, LNCC, president of Flemington, NJ-based Med League Support Services, a legal nurse consulting firm specializing in malpractice and personal injury cases. "ED nurses need to understand their responsibilities to secure a translator as quickly as possible," she says.
Your ED could be sued
To reduce liability risks when caring for non-English-speaking patients, do the following:
• Make sure you obtain consent.
Your ED could be sued for lack of informed consent if invasive procedures are performed on a person who does not understand explanations being offered and there is an untoward outcome, such as a punctured lung from insertion of a central line, says Iyer. "Keep a list of invasive procedures that require consent, such as insertion of chest tubes, central lines, and so on," she recommends.
You also must inform patients of their rights in advance of receiving care, to comply with federal patient privacy laws and the CMS Hospital Conditions of Participation, given in a language or method of communication that the patient understands, says Dill. For example, if the triage nurse uses a telephone translation service, have the interpreter tell the patient that he or she will be given a copy of the hospital's notice of privacy practices, she says. "The nurse should then document this process in the medical record," Dill says.
• Verify that patients understand discharge instructions.
If discharge instructions are given but are not understood by the patient, and the patient is unable to perform appropriate self-care as a result, the ED nurse could be held liable, says Iyer.
"ED nurses who ask a patient to sign discharge instructions should be verifying that the patient understands them," she says. "Using the interpreter, have the patient verbalize the instructions."
• Be sure that patients know interpreting services are available.
Post a sign in your ED stating, "Interpreting services available at no cost to the patient," recommends Dill. "Do this in several different languages, such as those most likely to present to your ED for treatment," she says.
• Don't use family members unless the patients make this request.
You may be tempted to automatically use family members as interpreters, but this is legally risky except in case of emergencies, says Dill. It's true that some patients may feel more comfortable when a trusted family member or friend acts as an interpreter, but you should verify this request by an impartial interpreter, and not just take the word of the family member who is interpreting, says Dill. "Then have the patient formally waive their right to a professional interpreter," she says.
Sources
For more information on liability risks of non-English patients in the ED, contact:
- Sue Dill, RN, MSN, JD, Director of Hospital Risk Management, OHIC Insurance Co., 155 E. Broad St., Fourth Floor, Columbus, OH 43215. Phone: (614) 255-7163. Fax: (614) 242-9806. E-mail: [email protected].
- Patricia Iyer, MSN, RN, LNCC, President, Med League Support Services, 260 Route 202-31, Suite 200, Flemington, NJ 08822. Phone: (908) 788-8227. Fax: (908) 806-4511. E-mail: E-mail: [email protected]. Web: www.medleague.com.
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