For Immediate Release: May 25, 2016
Contact: Craig M. Sandberg, 312.263.7249, firstname.lastname@example.org
Chicago, IL – In August 2015, this blog included a posting addressing Title VI of the Civil Rights Act of 1964 in the context of patient consent related to limited English proficiency (“LEP”). See "Title VI of the Civil Rights Act of 1964: Limited English proficiency (“LEP”) Patients and Obtaining Proper Consent".
Since that original blog-post, a number of individuals inquired about whether Illinois has any statutes that seek to ensure limited- and/or non-English speaking residents of Illinois have appropriate and understandable access to health care information and services. In fact, Illinois does have just such a statute on its books, namely, the “Language Assistance Services Act” (210 ILCS 87/1, et seq.); see also 77 Ill. Adm. Code 940. Incredibly, it appears that no Illinois appellate courts have either written about or interpreted that act since it became law in 2004.
The Language Assistance Services Act provides that “where language or communication barriers exist between patients and the staff of a health facility, arrangements shall be made for interpreters or bilingual professional staff to ensure adequate and speedy communication between patients and staff.” 210 ILCS 87/5 (emphasis added). The reasons for this is because “[t]he General Assembly finds and declares that Illinois is becoming a land of people whose languages and cultures give the state a global quality. The Legislature further finds and declares that access to basic health care services is the right of every resident of the State, and that access to information regarding basic health care services is an essential element of that right.” Id. “To ensure access to health care information and services for limited-English-speaking or non-English-speaking residents and deaf residents, a health facility must” follow develop a policy and post notices in conspicuous locations. 210 ILCS 87/15. A person who believes that the act or its rules may have been violated may submit a complaint to the Illinois Department of Public Health ("IDPH") .
Similarly, the Supreme Court of Illinois, in the Preamble to its Language Access Policy recognized that Illinois “has a significant and growing number of people with limited English proficiency throughout the state.” “This policy is based on the fundamental principles of fairness, access to justice and integrity of the judicial process; the principles of due process, equal protection and judicial independence rooted in the Illinois constitution; and the legal requirements of state and federal law, including Title VI of the Civil Rights Act of 1964.” Id. “‘Limited English Proficient Person’ means someone who speaks a language other than English as his or her primary language and has a limited ability to read, write, speak, or understand English and requires the assistance of a foreign language interpreter or sign language interpreter to effectively communicate in a legal proceeding.” Id.
In light of the deliberate and meaningful steps taken by both the legislative and judicial branches of government in Illinois, to force English forms in front of non-English speakers is intolerable and it must stop now. One can easily find examples where there are failures to provide language access on multiple fronts – the failure to utilize a competent interpreter, the hospital's use of a patient's family member to interpret, and the lack of a translated informed consent form. The reasons for not using family members, friends and particularly minor children as interpreters are widely recognized. Family members, friends, and especially minor children are often not competent interpreters because they do not interpret accurately and are prone to omissions, additions, substitutions and volunteered answers. See, e.g., Flores, et al., Errors in Medical Interpretation and Their Potential Clinical Consequences in Pediatric Encounters, Pediatrics, Vol. 111, No. 1 (January 2003); and McQuillan & Tse, Child Language Brokering in Linguistic Minority Communities- Effects on Cultural Interaction, Cognition, and Literacy, Language and Education, 9(3) at 195-215 (1995). See also, Why Relying on Family Members, Friends and Children as Interpreters is Dangerous and Should be Discouraged, available at http://www.healthlaw.org .
Effective communication should include provision of a translated written informed consent form when the patient is LEP. Effective communication is critical to informed consent. Generally, courts have found that informed consent requires more than just providing a “form,” and a patient must understand the issues and information that is material to the decision at hand. Macy v. Blatchford, 8 P.3d 204 (Or. 2000) (discussing whether a physician failed to obtain a patient’s informed consent for surgery, the court stated “a physician can mouth words to an infant, or to a comatose person, or to a person who does not speak his or her language but, unless and until such patients are capable of understanding the physician’s point, the physician cannot be said to have explained anything to any such person”); McQuitty v. Spangler, 976 A.2d 1020 (holding that an informed consent violation can be based on the omission of important information the patient needs to make decisions about his/her medical care. The court said, “The gravamen of an informed consent claim, therefore, is a healthcare provider’s duty to communicate information to enable a patient to make an intelligent and informed choice, after full and frank disclosure of material risk information and the benefit of data regarding a proposed course of medical treatment”). As it relates to the “notice” paragraph of the consent forms, how can it be held to any lesser standard?
I will restate a few comments I included in my original posting. Notice, in the context of physican-patient relationship, is important because, as the Illinois Supreme Court noted over 20 years ago in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (1993), there is an important “reality” related to the “business of a modern hospital.” Gilbert, 156 Ill. 2d at 520; see also York v. Rush-Presbyterian-St. Luke’s Med. Ctr., 222 Ill. 2d 147, 854 N.E.2d 635 (2006). “‘[H]ospitals increasingly hold themselves out to the public in expensive advertising campaigns as offering and rendering quality health services…Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital. In essence, hospitals have become big business, competing with each other for health care dollars.’” Gilbert, 156 Ill.2d at 520. (quoting Kashishian v. Port, 481 N.W.2d 277, 282 (1992)).
However, without guidance from the supreme and intermediate courts of Illinois, circuit courts will continue to wrestle with the level of ambiguity permitted or the level of “knowing and voluntary” required to bind a party to an executed medical “consent” form where the individual has LEP, who signs his/her name to that hospital’s “consent” form for the sole purpose of undergoing an emergency medical procedure. In Illinois, an “emergency” is defined as an “urgent need for assistance or relief.” Young v. Forgas, 308 Ill. App. 553, 561 (1st Dist. 1999) (quoting Merriam-Webster’s Collegiate Discovery 377 (10th ed. 1998)).
Almost ten years ago, the Illinois Supreme Court in Melena v. Anheuser-Busch, Inc., 219 Ill. 2d 125, 847 N.E.2d 99 (2006) wrestled with application of the heightened standard of “knowing and voluntary” in the context of Joann Melena’s signature on an “Employee Acknowledgment and Understanding” document related to “The Promotional Products Group [PPG] Distribution Center Handbook” that described defendant’s new employment program involving an agreement to arbitrate employment disputes pursuant to the Federal Arbitration Act [“FAA”]. There, the Court rejected utilizing a heightened standard for establishing a “knowing and voluntary” entry into a contract, finding that such a standard would be “inconsistent with the FAA.” Melena, 847 N.E.2d at 108.
However, in the context of Illinois hospital consent forms and subject to the Language Assistance Services Act, there is no statute that trumps Illinois common law related to “knowing and voluntary” in the context of a signature’s application to bind the signatory to the documents contents. In Melena, the lower court noted that it had “serious reservations” about whether an agreement to arbitrate, offered as a condition of employment, “is ever voluntary,” the court deemed “illusory” whatever choice plaintiff was said to have had in this matter. Melena v. Anheuser-Busch, Inc., 352 Ill. App. 3d 699, 707-08 (5th Dist. 2004).