Saturday, April 02, 2005

Healthcare Delivery and Mandatory Language Translators

AMED News reported that a federal district court dismissed a lawsuit brought by a conservative advocacy group on behalf of some physicians and several other parties last month. The Pacific Legal Foundation just announced that they planned to appeal. Here's their side of it.

The suit was a response to a 2002 executive order signed by then President Clinton requiring any healthcare organization getting federal reimbursement to provide translators for patients with limited English skills. Failure to comply could result in loss of funding and worse, being subject to a discrimination lawsuit under the Civil Rights Act of 1964 (Title VI).

As far as I can tell, the suit was dismissed on the basis of what some might call a legal technicality. The plaintiffs couldn't prove that the order materially injured them in any way thus making the case moot. I think it's pretty clear that the suit will proceed with perhaps subtle restating.

The issue is an important one I think and one that comes up frequently. I see two main issues arising here.

One, does the government have the right to make specific demands on the doctors and healthcare organizations that receive government reimbursement? To me, it's pretty clear that the U.S. has the right to function as any other payer of health benefits, private or public. That includes the right to dictate the terms to which it will agree to pay. It's a free world. If the doctor (hospital, clinic, etc.) doesn't like the terms of the agreement, he doesn't have to take the money (or see the patient).

Every private insurer has the right to make whatever legal demands it likes pursuant to a contract. The feds should be no different. If the government demands a qualified translator at the doctors expense for patients that don't speak good English, so be it.

Whether or not this is good policy is another question and one that I think reasonable people can take both sides on. Hiring a translator is very expensive and onerous for a small practice and the price can easily exceed the revenue generated by that patient. Why must the provider rather than the patient absorb that loss?

On the other hand, does it serve the purposes of an egalitarian society that a patient, should have to penalized for the simple misfortune of not being fluent in English? This is a debatable and emotional issue for some. One of the parties to the lawsuit is a group that seeks to establish English as the national language.

The second main issue I see here is the part of the executive order that decrees that failure to comply constitutes civil discrimination and exposes the provider to legal action under Title VI. I'm no lawyer but I didn't think that this was up to the executive branch of government. Isn't it the courts' job to make determinations like that?

I will make one other point. Personally, I think such rules are to some extent irrelevant. As I'm sure most physicians are aware, they are legally responsible for any medical errors in diagnosis and therapy regardless of the language skills of their patients.

If I fail to diagnose or treat a patient properly because of a miscommunication arising from language problems, it's my fault. The fact that my patient only spoke Croatian is no defense for a malpractice case. This is all the legal protection that patients with limited language skills should need and it's a lot!

I will leave with one quick anecdote. I had a patient once who spoke no English. My group and I had to pay for a very expensive translator when I saw her in my office. I showed up. The translator showed up. The patient didn't. Guess who footed the bill for that adventure?


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