Making Language Access to Health Care Meaningful: The Need for a Federal Health Care Interpreters' Statute

I. INTRODUCTION II. BACKGROUND A. Existing Federal Law 1. Title VI 2. Executive Order 13166 3. Extent of Language Assistance Obligations 4. Enforcement of Federal Regulations B. Case Law Dealing With Issue of Language Access 1. Court Imposed Limitations to Actions under Title VI C. Other Federal Statutory Language Access Provisions 1. Federal Statutes III. ARGUMENT A. The Need for a Statute 1. The Court Interpreters Act 2. Quality of Current Language Services in the Health Care Industry 3. Certification of Medical Interpreters 4. State Initiatives B. Other Legal Considerations 1. Patient Rights 2. Malpractice Actions a. Lack of Informed Consent b. Breach of Duty to Warn c. Improper Medical Care C. Current Problems Due to Lack of Federal Statutory Guidance 1. Assessing Patients' Language Proficiency and Interpreters' Competence 2. Costs and Efficiency of Using Language Services 3. Maintaining a Uniform Language D. Policy Considerations 1. A Health Care Interpreter Statute 2. Right to an Interpreter 3. Access 4. Certification 5. Statutory Framework IV. CONCLUSION I. INTRODUCTION In Miami, Florida, the misinterpretation of a word delays treatment for Willie Ramirez and results in the eighteen-year-old-year old living the rest of his life as a quadriplegic. (1) At a doctor's office in Merced, California, Ker Moua's son, acting as the communication conduit between the doctor and his non-English speaking mother, mistranslates the doctor's instructions with respect to the prescription medication, and she overdoses. (2) In Queens, New York, Moon Chul Sun, a Korean-speaking patient, is unable to communicate with doctors for three days until an interpreter that "spoke little Korean" tells him, while he is being discharged, that the only course of treatment was to take Tylenol. (3) He dies a month later. (4) And in Phoenix, Arizona, Griselda Zamora, a thirteen-year-old girl, dies from a ruptured appendix after being discharged from a local hospital, where she was given a pregnancy test and a diagnosis of gastritis. (5) These cases illustrate a significant challenge facing a health care system that is unable to comply with federal regulations designed to address the needs of patients who are unable to communicate proficiently in English. One central tenet of the delivery of high-quality health care is the physician-patient relationship. Communication is essential to the development of this relationship and the status of patients' health is directly related to it. (6) The communication gap between the increasingly language diverse population throughout the United States and their health care providers not only affects the health outcomes and lives of millions of limited English proficient (LEP) American taxpayers, but it also jeopardizes their legal rights. Language proficiency can be a barrier to accessing health care services and understanding and exercising important rights, such as the right of self-determination to grant or withhold informed consent. It can also pose a barrier to complying with applicable responsibilities, and understanding other information provided by federally funded facilities. Title VI of the Civil Rights Act of 1964 provides that "[n]o person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. " (7) The Supreme Court has interpreted language to be a proxy for national origin and, as a result, discrimination on the basis of language is protected under Title VI. (8) Furthermore, Executive Order 13166 requires all recipients of federal financial assistance to improve access to their LEP applicants and beneficiaries. …