The foundation of a healthy doctor/patient relationship is good communication. But what happens if language barriers exist?

MIGA26039_Language-barriers---making-sure-your-patient-understands

A recent NSW Court of Appeal decision determined that where a language barrier exists, a medical practitioner must take all reasonable steps to ensure that the material risks related to a proposed surgical procedure are conveyed, and that practitioners must satisfy themselves that the substance of the information has been conveyed and has been understood.

Facts

The patient was Macedonian and her English was poor. The patient was diagnosed with a tumour on the sheath of an acoustic nerve. The patient consulted an otolaryngologist (‘the practitioner’) and surgery was recommended. The patient agreed to undergo surgery to remove the tumour. During the operation an adjoining facial nerve was severed1, resulting in a facial palsy. Further treatment to try to rectify the nerve injury was unsuccessful.

Prior to the surgery, the patient attended four pre-operative consultations. The first consultation was with a different practitioner. The patient brought a friend to interpret. Following this consultation the patient mistakenly understood that an MRI scan showed a brain tumour.

The second consultation was with the practitioner. The patient again attended with her friend as interpreter. She still believed she had a brain tumour.   A decision was made to have surgery. The patient’s version of events was that no warnings or risks were explained to her at this consultation. The practitioner had no notes of the consultation and gave evidence based on his usual practice, that is, he would have informed her of the risks, including the material risk of injury to the facial nerve.

The third and fourth consultations were held at the hospital, the third with the practitioner, the fourth with a hospital staff member, and both with a professional interpreter present. The practitioner’s and hospital’s version of events was that there was discussion about the risks on both of these occasions and the patient provided consent.

District Court Proceedings

The patient commenced proceedings in the District Court against the practitioner and the hospital. The patient alleged that there had been a failure to warn her of the risk of damage to the facial nerve (which was the risk that materialised in this case) and alleged that the operation had been performed negligently.

The trial Judge found the patient was not successful in relation to her allegation that there had been negligent performance of the surgery, however, the patient was successful in establishing that there had been a failure to warn her of the risks and was awarded $331,000.

In finding that there had been a failure to warn in this case, the trial Judge devised a form of protocol to be followed by practitioners in order to comply with the duty to convey relevant information to patients, comprising 16 separate elements.

The practitioner and the hospital appealed the decision of the District Court Judge.

Appeal Proceedings

The issues that the Court of Appeal were asked to consider included:

  1. whether the trial Judge overstated the obligations on a practitioner in circumstances where effective communication was dependent on an interpreter;
  2. whether adequate warnings of the risk were provided to the patient;
  3. whether the alleged failure to warn materially affected the patient’s decision to have the operation.

The appeal was successful.

The appellants successfully argued that the 16 elements devised by the trial Judge were, amongst other things, onerous and not a true statement of the duty to warn.

The Court of Appeal found that the medical practitioners involved in the patient’s care had taken reasonable care in ensuring the patient was provided with, and had understood, the relevant information about the material risks of the surgery.

The Court of Appeal found that there may have been a misunderstanding on the patient’s part as to her condition (a brain tumour) and treatment options leading to her choosing surgical intervention, but her misunderstanding was not due to any breach of duty on the part of her doctor.

Tips

Although the case focussed on the consent process for a surgical procedure, the Court of Appeal’s decision applies to any practitioner providing any form of treatment, surgical or otherwise.

This case highlights that in relation to non-English speaking patients, you must take reasonable care to ensure that the material risks of a proposed procedure are explained, and you must be satisfied that the patient understands.

If you cannot be satisfied that a patient understands the risks of a procedure by reason of their command of English (or otherwise), the procedure should not go ahead.

We recommend, for non-emergency situations, involving a professional interpreter and making detailed notes of the discussion of risks, the presence of the interpreter and confirmation the patient understands the information conveyed.

Contact one of the solicitors in the Claims and Legal Services department for advice if you have concerns.

1 The nerve was severed by a member of the surgical team under the practitioner’s supervision

Other resources

  1. Read the judgement

    Biggs v George [2016] NSWCA 113

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