How to Obtain Informed Consent from Non-English Speaking Patients

When crafting your patient consent forms, there are two primary goals: (1) ensure that your patient understands and freely offers their consent, and (2) protect yourself against liability for failing to obtain a patient’s consent to treatment.   But what happens if you only accomplish one of those goals? And, do providers really get sued over consent issues?

informed-consent

The Mizyed v. Palos Community Hospital Decision

Sometimes, a success for providers means a failing for patients. Recently, the Illinois Appellate Court, First District, affirmed the trial court’s dismissal of a medical malpractice complaint filed by a patient against his treating physicians. The patient had signed consent forms acknowledging that he understood his treating physicians were not hospital employees.  However, he was a native Arabic speaker who can speak only limited English and can read neither language.

While hospitalized, the patient contracted an infection and sued both his physician and the hospital.  The trial court dismissed his case against the hospital because the consent forms’ terms explicitly stated that its physicians are not its employees.

Ultimately, the court focused on the fact that the patient’s daughter understood English, and that she reviewed the forms and instructed the patient to sign them.  Although his daughter later acknowledged that she did not read the forms, the hospital had no way of knowing that the forms’ terms were not communicated to the patient.

Patients who feel that they received treatment to which they didn’t consent may feel betrayed by their providers and distrustful of the medical system. This does patients and providers a disservice, and it undermines the patient’s dominion over his/her body.

Providers: 1, Patients: 0

The hospital was spared liability in the patient’s lawsuit because of his signature on the consent forms. But, aside from liability, what about the patient’s actual understanding of the parameters of his treatment? The goal of consent forms is to actually obtain a patient’s consent to the terms of his treatment.

Informed consent laws are intended to ensure that patients control their bodies.  Generally, the adequacy of a provider’s informed consent is judged by asking what a reasonable provider under the same or similar circumstances would have provided to the patient.  The parameters of “reasonable” are typically assessed through the testimony of expert witnesses after a patient sues.

In our view, patient-centered informed consent forms respect the lessened medical knowledge of the patient.  Because the provider is in the best position to assess likely treatment risks, it’s the provider who bears the responsibility of educating the patient about those risks – not just because the law requires informed consent, but because it’s the ethical way to proceed with treatment.  

As Abraham Schwab wrote in the AMA’s Journal of Ethics, informed consent “is often provided to the patient by less-than-ideally motivated [providers] in the manner that they, and not the patient or other experts (i.e., cognitive psychologists), deem appropriate.”

Patients who feel that they received treatment to which they didn’t consent may feel betrayed by their providers and distrustful of the medical system.  This does patients and providers a disservice, and it undermines the patient’s dominion over his/her body. "Patient autonomy" isn't a buzzword; it's a mandate.

The Takeaway

  • Illiteracy doesn’t exempt a patient from the terms of the consent forms that he/she signs. When a person signs a document, the act of signing it generally signifies that he/she had an opportunity to review and understand the document’s terms.
  • A patient’s inability to understand English is not a determinative factor in assessing the effect of consent forms that he/she signed.
  • While providers are generally not required to warn patients about “remote” risks, the determination of what qualifies as a “remote risk” is often subjective.
  • Provider-patient relationships should be driven by the patient’s goals and values.  Providers should ensure that they obtain genuine and comprehensive consent each time they treat a patient.
  • A failure to obtain a patient’s informed consent to treatment constitutes grounds for a medical malpractice lawsuit.  In a typical case, the patient asserts that he/she would have made a different decision had they been informed of the risks of treatment. 

Read more:

Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790 (May 9, 2016).

Abraham P. Schwab, The Patient’s Piece of the Informed Consent Pie, 10 AMA J. Ethics 527 (2008), available at http://journalofethics.ama-assn.org/2008/08/pdf/msoc1-0808.pdf.

Rita L. Lowery Gitchell, Proposal for an Informed Consent Statute for Elective Treatment Decisions in Illinois: Standards for the Health Care Practitioner, Ill. Ass’n of Defense Trial Counsel, available at http://c.ymcdn.com/sites/www.iadtc.org/resource/resmgr/imported/PublicationPDfs/7.3.41.pdf.

Reminder: This blog is not a substitute for legal advice. If you need help drafting your intake forms, or if you have legal questions, you can email Erin at erin@jackson-legal.com.

© 2016 Jackson LLP

 

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