Patient can't hear you? Legal risks abound
If a hearing-impaired patient asked you for a sign language interpreter, would you readily agree or ask that the patient communicate with written notes instead?
A New Jersey rheumatologist chose the latter option when one of his patients asked for a sign language interpreter. Though no negligence was alleged, the patient sued the physician for disability discrimination and was awarded $400,000 by a jury, with half of the award for punitive damages.1,2
Larry Downs, Esq., CEO of the Medical Society of New Jersey in Lawrenceville, says the way that disability discrimination situations are handled by courts, by advocates for the deaf, and by physicians "really varies. It is not well-settled, and that creates risk for physicians and access problems for the hearing-impaired."
The case was settled before it reached the appellate stage. The settlement amount wasn't covered by liability insurance, adds Downs, as disability discrimination claims are not included in professional liability policies.
The Borngesser v. Shore Medical Center case, which sets the standard in New Jersey, established a standard of patients and physicians communicating in a manner that is mutually agreed upon, whereas the above case set a different standard requiring physicians to provide a certified sign language interpreter.3
"It was a shame we didn't get a chance to appeal that case," says Downs. "It would have been nice to have a court reinforce or follow Borngesser."
Downs says that while it's always a good idea for physicians to consider a sign language interpreter for first visits and major decisions, effective communication also can occur if the patient can participate in their care by written note or technology such as telehealth systems. "We were anxious to have an opportunity to argue that point; but unfortunately, it remains murky to this day," Downs says.
MDs often unaware
Some patients with hearing loss try to compensate by reading lips or simply nodding an understanding of what the physician is saying, when they haven't truly understood.
"Hearing loss is not apparent when looking at a person unless they have a hearing aid or cochlear implant," says Henry C. Fader, JD, an attorney with Pepper Hamilton, Philadelphia, PA. Fader represents the Hearing Loss Association of America, a national advocacy group for the hearing impaired.
History and physical questionnaires rarely ask about hearing loss, and patients with hearing loss will not always self-identify due to their concern over social stigma, he adds. "In my experience, physicians do not understand the legal risks involved if they do not make accommodations and have alternative services available such as a sign language interpreter," says Fader.
As with foreign language interpreters, there are certified American Sign Language (ASL) interpreters who can be called into the physician's office to interpret for the deaf patient, says Fader. "But what about the patient who is struggling with hearing loss brought on by age or occupation? They, too, are entitled to reasonable interpretation services," he says. Fader says such services might include:
- real-time captioning;
- using a hearing loss interpreter with technical medical knowledge;
- if patients have hearing aids, having a "looped" physician's office so that, through amplification and the use of microphones, the patients can have their hearing enhanced;
- making other electronic assistive devices available on a temporary basis in the medical office to help hard-of-hearing patients communicate with the medical professionals.
Technology available to connect American ASL interpreters in Canada with deaf patients by telehealth systems could increase the standard of care for such patients, adds Fader. The Ontario Telehealth Network recently established links to patients by wireless technology in the Thunder Bay Regional Health Sciences Centre in Thunder Bay, Ontario, Canada. Using wireless technology in all 22 intensive care unit beds and the emergency department, ASL language interpreters were made more accessible to deaf patients.
"Medical malpractice risks stem from a failure to properly communicate with the patient, lack of informed consent if the patient could not hear the physician, and discrimination for failure to provide reasonable accommodations," says Fader. (See related story, below, on cases involving hearing-impaired patients.)
Two 2013 cases on failure to provide interpreter
More handoffs are one reason
Due to inadequate communication between patient and caregiver as a result of the patient's hearing loss can certainly lead to misinformation and misdiagnosis resulting in medical malpractice. "However, the greatest potential for loss arises out of a violation of federal and state anti-discrimination laws," says Henry C. Fader, JD, an attorney with Pepper Hamilton in Philadelphia, PA.
These actions may be brought by a federal, state, or local enforcement agency that oversees discrimination of the disabled and can lead to lawsuits arising from a violation of statutes and regulations meant to protect the disabled, says Fader.
"In addition to the potential for medical malpractice, a stronger case could be brought by a patient for failure to obtain appropriate informed consent," he explains.
Most state courts view the failure of obtaining a valid informed consent as an action that can negate a defense on the merits in a malpractice action, says Fader. "Most risk managers would agree that failure to obtain the appropriate informed consent as the worst-case scenario in any malpractice action," he says. "The plaintiff would argue that due to the inability to hear and understand the physician, that the consent could not be valid."
In a 2013 case in the Western District of Washington, the U.S. District Court refused to dismiss a deaf patient's disability discrimination claim for a hospital's failure to provide an American Sign Language interpreter.1
"The allegations went beyond the violation of the Americans with Disabilities Act," says Fader.
The plaintiff alleged that the lack of an interpreter interfered with the patient's ability to receive "full and equal" medical treatment, interfered with the patient's understanding of his treatment and treatment options and the opportunity to ask questions about his treatment, and excluded the patient from providing informed consent.
In another case, a psychiatric evaluation of a deaf resident without a sign language interpreter led to a 2013 settlement agreement with one of the nation's largest long-term care providers.2 "The use of written notes and gestures was deemed to be discrimination against the resident," says Fader.
In its announcement of the settlement, the Department of Health and Human Services asserted that "the patient's care was unnecessary and significantly compromised by the stark absence of interpretation service." The investigation was undertaken when the Office for Civil Rights determined that the facility in question failed to take appropriate steps to ensure effective communications with the patient leading to problems in care delivery, notes Fader.
"These breakdowns in communication could lead to liabilities for the provider," he says.
References
1. Gough v. Peace Health St. Joseph Medical Center: 2013, U.S. District Court Western District of Washington at Seattle.
2. Settlement Agreement between the U. S. Department of Health and Human Services Office for Civil Rights and Genesis Healthcare. OCR Transaction Number: 10-116191(http://www.hhs.gov/ocr/civilrights/activities/agreements/genesishc_agreement.pdf).
References
- Gerena v. Fogari. N.J. Sup. Ct., App-Div.
- Doctor liable for not providing sign language interpreter. American Medical News. Jan. 5, 2009. Accessed at http://www.ama-assn.org/amednews/2009/01/05/prca0105.htm.
- Borngesser v. Shore Medical Center, 340 N.J. Super. 369 (App. Div. 2001).
SOURCES
- Larry Downs, Esq., CEO, Medical Society of New Jersey, Lawrenceville. Phone: (609) 896-1766. Email: [email protected].
- Henry C. Fader, JD, Attorney at Law, Pepper Hamilton, Philadelphia, PA. Phone: (215) 981-4640. Fax: (215) 689-4626. Email: [email protected].
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content
Already have an account? Log in