Collins v. Dartmouth-Hitchcock Medical Center

Part II – Tips for Avoiding “Win = Loss” Cases

In my last blog, I discussed the Collins v. Dartmouth-Hitchcock Medical Center decision. In that case, the Court found that a hospital and doctor properly accommodated a deaf patient without providing her with an ASL interpreter. The focus of the previous blog was to highlight the fact that, even though the hospital and doctor “won” in court, they still “lost” in terms of the time and money it took to get that victory.

In this blog, I will focus on three tips for avoiding “win = loss” situations. While there is no way to completely avoid being sued, ensuring consistent use of a compliant Language Access Program at all steps within a patient encounter goes a long way toward preventing claims (not to mention creating positive patient experiences and happy patients!). Here are three tips you can use to help avoid “win = loss” situations in your facility:

  1. Use “I Speak” Cards. A simple, cost effective way to ensure that your Language Access Program is used is to post “I Speak”cards at registration, at help desks, in waiting areas, in patient rooms, and anywhere else a Limited English Proficient, deaf or hard-of-hearing patient might be. An “I Speak” card is simply the phrase “I speak ______. Point here if ________ is your preferred language for medical information.” repeated in numerous languages (and, for deaf patients “I am deaf. ….”.). In the Collins case, the patient came to the hospital with limited hearing, and left profoundly deaf after her new cochlear implant could not be placed. Having an “I Speak” card available only at registration would not have gotten the job done. Having an “I Speak” card in the surgery recovery area or in her room, however, may have alerted her or her sisters that ASL services were available upon request.
  2. Record, record, record! Keeping the medical record up-to-date is crucial, not only to ensure quality care for the patient, but also to serve as evidence should litigation arise. Asking the patient about their communication preferences and putting that on record is required under Joint Commission standards. But asking one time, during registration, may not be enough. Whether an English-as-a-second-language patient loses the ability to speak English due to physical trauma or psychological distress, or a limited-hearing person becomes profoundly deaf as in Collins, or an English-speaking patient becomes unconscious and the medical staff must begin communicating with an LEP family member, medical staff must be trained to ask the language question again. Once the question has been asked, the answer should be put in the medical record.
  3. Be cautious with formal waivers. In the Collins case, one of the claims made was that the patient was “forced” to waive her “right” to an on-site ASL interpreter in order to receive medical treatment. The actual facts revealed that the waiver simply explained the differences between an on-site ASL interpreter and a Video Remote interpreter, and asked the patient’s consent to use VRI. Still, healthcare providers struggle with patients/family who simply do not want to use a professional interpreter. While it is always important to clearly and thoroughly explain why a professional medical interpreter is needed, whether to ask the patient/family member to sign a waiver remains a gray area. In many instances, patients are intimidated by the formal, legal language included in the waiver (which, by the way, is almost always in English). This can lead to the patient believing “they must be doing something wrong or I wouldn’t have to sign this!” The alternate approach is to carefully explain the importance of using a professional medical interpreter – preferably using the interpreter to interpret the explanation – receive a verbal response, and note both the explanation and decision in the medical record. Having a standard “script” that all medical staff must use when giving the explanation minimizes the risk that the staff and/or interpreter won’t recall exactly what was said. Your legal team will be your best resource making the choice between written and verbal waivers. If you choose to use written waivers, consider having them translated into the most common languages you encounter at your facility and also noting in the medical record that the document was explained verbally to the patient.

Hopefully, you noticed the “hidden” fourth tip in the three above: training. Schedulers, registration staff, nurses, doctors and others with patient contact cannot use a Language Access Program if they do not know about it. Ensuring that everyone on your team understands when to call an interpreter, how to call an interpreter, and how to work with an interpreter plays a huge part in ensuring effective patient communication.