Posted on August 31, 2004

Doctors Challenge Translation Rule Services (Cal.), Aug. 30

SAN DIEGO — Several doctors and a group supporting English as the nation’s official language filed a lawsuit Monday challenging a Clinton-era executive order requiring federally funded hospitals, clinics and doctors to offer translation services for patients who speak limited English.

The plaintiffs said the order is an illegal intrusion into their practices and will further motivate doctors to restrict their services or leave the industry.

The lawsuit, which names as defendants the U.S. Department of Health and Human Services and its secretary, Tommy G. Thompson, challenges the 2000 policy known as Executive Order 13166 on several fronts, including claims that it is an expensive and intrusive burden on physicians and limits a doctor’s free speech rights.

Health and Human Services issued guidelines for complying with the order last year. They advise health-care providers to offer to their patients, free of charge, translation services ranging from written materials and phone conferences to bilingual medical staff and trained interpreters.

Patients may use family members or volunteers but should be offered the option of a professional interpreter.

The lead plaintiff, San Diego orthopedic surgeon Dr. Clifford Colwell, attorneys from the Pacific Legal Foundation and the nonprofit group ProEnglish argue the order improperly interpreted civil rights law to include language as part of anti-discrimination based on national origin.

ProEnglish, based in Arlington, Va., and Colwell filed a similar lawsuit in Virginia in 2002 that was dismissed for, among several reasons, lack of standing and failure to prove the plaintiffs were harmed by the order.

Lawyers from Pacific Legal Foundation, a Sacramento-based firm that supports limiting government interference in private life, said they chose to file in San Diego because Colwell lives in the city.

Colwell said patients are best served not by outside professional translators but by their own family members whom he often sees acting as translators.

The mandate from the Department of Health and Human Services “changes how we approach our patients,” he told reporters. “In most cases, a family translator is by far the best because they represent the patient to the best degree they can.”

But the National Alliance for Hispanic Health, a Washington-based group that works to improve the health of Hispanics, said patients with limited English skills need to fully understand what their doctor is saying.

Relying on family members to translate opens the door for problems such as a patient who doesn’t want relatives to know about a medical condition, or a relative lacking the skills to accurately translate medical terms, she said.

Patients who can clearly communicate about their symptoms, medical history and treatment will help save money by avoiding unnecessary tests and problems stemming from poor diagnosis or a patient’s failure to follow instructions, according to Dr. Jane Delgado, president and CEO of the alliance.

Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons, a plaintiff in the lawsuit, said the order will lead doctors to move out of heavily immigrant communities or leave the profession due to the cost of providing translation services and the fear that failure to fully comply will lead to claims of malpractice or a civil rights violation.

Physicians, she said, “have only one choice and that is to not serve patients in a situation in which they fear they may run afoul of this law.”

“That means that they will probably be withdrawing their services from areas in which they may come in contact with many patients who are not . . . English proficient.”