September 21, 2004

Medical Interpretation

Eric Bakovic's post about the lawsuit filed by a physician in San Diego opposing a federal requirement that federally-funded clinics and hospitals provide interpreters for patients with poor knowledge of English, and its successor, and Mark Liberman's response, all address the bizarre claim that this requirement violates physicians' freedom of speech. I take Mark's hypothetical example to show that in principle, yes, a requirement that a speaker provide translation of his speech could interfere with freedom of speech by making that speech impracticable, but I don't consider it applicable in this case, for two reasons.

First, in the medical situation, it isn't impracticable or even enormously burdensome. Second, in the medical situation, it isn't the kind of infringement of freedom of speech that concerns civil libertarians and the First Amendment. To take an even more extreme example than Mark's hypothetical, let's consider a law that required anyone speaking in public (for concreteness, let's say to three or more people in a public place) to provide translation into any language spoken by anyone in the audience. With current technology, this would impose an impossible burden and effectively make public speaking impossible. I think that we would all agree that this would be an intolerable infringment of freedom of speech and that such a law would be unconstitutional. Mark's example of university colloquia is comparable. The doctor's speech to a patient, however, falls into another category. I submit that it is commercial speech, which does not receive the same protection. Prohibiting deceptive advertising infringes in a way on the advertiser's freedom of speech, but this infringement is acceptable because commercial speech does not deserve the same protection as other speech and because there is a strong public interest in the restriction. Requiring translation of a doctor's speech to his patient is no more of a violation of his freedom of speech than is taking away his medical license for giving incompetant advice to patients.

The lawsuit also raises issues of liability for the physician if he fails to provide competant interpretation. I agree that that is potentially a valid issue. It would be unfair to require more of physicians than they can reasonably do. They don't have the time or, generally, the competance,to make a careful evaluation of an interpreter's ability. However, I don't think that this is a serious issue. To begin with, there don't seem to have been a spate of lawsuits against physicians on this basis. In fact, as far as I can tell, there haven't been any. Furthermore, as I read the Health and Human Services Guidance Memorandum, the regulations aren't very strict. All they say is that the physician should make an effort to use a competant interpreter. They explicitly provide that the interpreter need not be certified. A physician cannot be expected to give the interpreter a language examnation, but he can be expected to ask basic questions, such as whether the person speaks English sufficiently well and whether the person's background makes him or her likely to be sufficiently familiar with medical terminology.

Reading the brief and other statements of the plaintiffs convinces me that there is another linguistic issue here, namely the quality of medical care that results when patient and doctor can't understand each other. I don't think that the plaintiffs understand the nature and extent of the problem. It should be obvious that medical care suffers when doctor and patient can't communicate. The patient can't convey to the doctor his or her symptoms and history, so the doctor can't diagnose adequately and choose appropriate treatment. The patient can't express his or her needs to the nursing staff. The patient can't understand the doctor's instructions. All of this is well known, but the lack of adequate interpretation continues to be a problem.

According to this Medserv Medical News article, the California Assembly is considering a bill that would require hospitals to have official adult translators on hand. It bans the now common practice of relying on immigrants' children as interpreters. According to the article:

The California Medical Association last month warned that patients with limited English skills posed a health threat because they are not able to read medicine and prescription labels, follow doctors' instructions or absorb advice about healthy lifestyles. "Communication between a patient and his or her physician is at the heart of medical care," said CMA President Dr. John Whitelaw.

Here's an article from yesterday's Hartford Courant, entitled Language Still A Barrier For Good Medical Care, according to which:

advocates for immigrants and refugees in Connecticut maintain that a dearth of competent interpreters continues to threaten the health of non-English-speaking residents.

A study by Dr. Dennis P. Andrulis [PDF file] of 4,100 patients in 12 states reported that:

Patients who did not get needed language assistance reported problems that touched nearly all aspects of their healthcare experience. ... the most disturbing finding was that more than one quarter of those unsuccessful in finding needed language services did not fully understand the prescription instructions they were given - a problem experienced by only 2% of the other patients.

The response of Dr. Clifford Colwell, one of the plaintiffs in the case, is that patients' family members should be relied upon as interpreters. That's exactly what the bill in the California legislature intends to ban. To begin with, just because you speak two languages doesn't make you a good interpreter. That's all the more true in a situation which may be stressful for the interpreter as well as the patient. And even if they are competant at ordinary conversation, untrained interpreters may well not be familiar with medical terminology and the medical system. Using a family member as interpreter also raises privacy issues - the patient may not want the interpreter to know about his condition or related matters, such as his sex life. An additional issue is that the family members used as interpreters are often children, since the children learn English more rapidly than their parents. Children, however, are particularly unlikely to understand medical terminology, and their parents may be reluctant to discuss some topics in their presence. Finally, some people have no family who live nearby or are able to come with them and who speak English. Relying on family members to interpret is a dreadful idea.

Another plaintiff in the suit is the American Association of Physicians and Surgeons. This is not just any medical association. It appears to devote its efforts to opposition to efforts that in its view infringe on the sanctity of the doctor/patient relationship. Its positions include opposition to mandatory vaccination of children and to Medicare. The AAPS has posted its comments on the interpreting regulations here, here, and here. What I find striking is that most of the AAPS comments are directed either at the potential liability problems for physicians if a patient decides that his or her problem was caused by inadequate interpretation or by arguments in favor of requiring the use of English in various contexts and that it is improper "to shift the burden of understanding English from the listener to the speaker". The little that is said about communication between doctor and patient is disappointing. They suggest that patients may be more comfortable with a family member as interpreter than with someone they don't know. That's true: sometimes they will be. And other times they won't be. The regulations don't require patients to make use of non-family members as interpreters - they require that competant interpretation be made available, and forbid the clinic from requiring the patient to provide a friend or family member to interpret. The AAPS comments don't address the problems of interpreter competence or privacy issues, nor do they say what should be done when the patient doesn't have a family member to interpret. You would hope that a medical association would give more thought its public policy positions.

The AAPS comments dwell on the need to make clear the status of English as the official language of the United States, and complain about immigrants who "choose" not to learn English. The idea that immigrants refuse to learn English is one of the chestnuts of the English Only movement, and is without foundation. Most immigrants do learn English, and most who don't would if they could. Some people aren't good at learning languages, or live and work in a situation in which they can't. Some people lose their ability to speak a second language when they become old and sick. What is more, there are many people in the United States who speak languages other than English who are not immigrants. It is estimated that 75% of the older generation of Navajos do not speak English. There are many people in New Mexico and Arizona, and still a few in California, who speak only Spanish. They and their ancestors were born in what is now the United States. They aren't immigrants who chose to come to the United States but perversely refuse to learn English.

Without qualified interpreters, patients with limited English cannot communicate adequately with their doctors. Reasonable people can disagree about who should pay for such services (a sensible proposal is that Medicare should add a provider category for interpreters so that the interpreting bill could be reimbursed as a cost of the visit) and whether not providing them is illegal discrimination (the basis for President Clinton's Executive Order), but no reasonable person can claim that interpretation isn't necessary for adequate medical care. For doctors to oppose the requirement that patients be provided with interpretation is for them to oppose giving adequate medical care. Physicians have an ethical and legal duty to provide competant medical care, which isn't possible if doctor and patient can't communicate. Some of the arguments of the plaintiffs in this case are just thoughtless and ignorant, but what the AAPS position statements suggest to me is that the main problem is that the plaintiffs are bigots with an impoverished understanding of their ethical obligations.

Posted by Bill Poser at September 21, 2004 11:19 PM