• Consent Forms & the Non-English Speaking Patient: Court Rules for Hospitals and Others in Healthcare
  • July 26, 2016 | Author: J. Matthew Thompson
  • Law Firm: Heyl, Royster, Voelker & Allen Professional Corporation - Peoria Office
  • In Mizyed v. Palos Cmty. Hosp., 2016 IL App (1st) 142790, the Illinois Appellate Court considered the impact of a patient’s inability to speak or read English on the effectiveness of a signed consent form. In a positive outcome, the court found that a hospital has no duty to determine a patient’s education or ability to understand English-language consent forms, and has no duty to ensure the patient subjectively understands a consent form he signs. If recent trends concerning language use in the United States continue, this decision could be applied in a significant number of future cases.

    Background

    In Mizyed, the plaintiff was sent to the ED at Palos Community Hospital for cardiac issues. He was a native Arabic speaker, who spoke limited English and could not read or write in either Arabic or English. He relied upon his adult children to read and translate documents for him.

    The plaintiff’s daughter and other family members visited the plaintiff in the emergency room and at times during the subsequent admission. Over the course of his emergency room visit and admission, the plaintiff executed five hospital consent forms, all of which were written in English. Each of the consents signed by the plaintiff contained a paragraph explicitly disclaiming any employment relationship between the hospital and its staff physicians. Specifically, a paragraph of each consent stated:

    I understand that all physicians providing services to me - are independent medical staff physicians and not employees or agents of Palos Community Hospital.

    Mizyed, 2016 IL App (1st) 142790. ¶7.

    At his deposition, the plaintiff admitted his daughter discussed some of the consent forms with him, testifying: “Yes. She told me, ‘Dad, sign the paper because they want to do surgery for you,’ and I trust my daughter. So I signed the papers.” He stated, “I don’t speak English 100 percent, and I don’t know what the doctors were telling me. I based everything upon what [my daughter] told me and based upon that I signed.” Id. ¶6.

    The plaintiff’s daughter testified that she did not read the consents entirely, but still encouraged the plaintiff to sign. She “did not exactly go line to line” through the consents. Id. ¶11. Nevertheless, she answered questions her father asked, and encouraged him to sign the consents.

    Upon admission, the plaintiff did not have a physician on staff at the hospital. Dr. Kanashiro, an employee of Cardiology Internal Medicine Associates who had staff privileges at the hospital, was on call for the emergency department at that time. Therefore, she became the plaintiff’s attending physician. Dr. Kanashiro stated that she exercised her own independent training, skill and judgment in treating the plaintiff, and her care was not controlled or directed by the hospital. Dr. Kanashiro never told the plaintiff she was an employee or agent of the hospital, but also admitted that she did not tell the plaintiff she was employed by Cardiology Internal Medicine Associates. Her badge simply indicated that she was a staff physician at the hospital, not an employee. Dr. Kanashiro testified that the plaintiff spoke English with her, and they did not need an interpreter to communicate.

    During his admission to the hospital, the plaintiff developed an infection resulting from a PICC line insertion. Dr. Kanashiro confirmed the presence of infection from blood cultures, and then consulted with an infectious disease specialist. The plaintiff was given vancomycin, and was later discharged with a prescription for outpatient antibiotics. However, the plaintiff was later readmitted to a separate hospital for further treatment of the infection.

    Later, the plaintiff filed a medical malpractice action against the hospital, alleging that the hospital was liable for the negligent acts of Dr. Kanashiro because Dr. Kanashiro was its apparent agent. The hospital moved for summary judgment, arguing that it had not held out Dr. Kanashiro as its agent or employee. The trial court granted the hospital’s motion for summary judgment, and an appeal followed.

    General Law Applicable to Apparent Agency Claims

    In Illinois, a plaintiff must prove three elements in order to hold a hospital liable for the apparent agency of a non-employee physician, including:

    (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

    Id. ¶38.

    The first two factors, typically grouped together, are referred to jointly as the “holding out” factor. There, the focus is whether the patient knew or should have known the physician is an independent contractor. If a patient knows or should know that a physician is an independent contractor, the hospital cannot be vicariously liable. Put another way, if a patient “is in some manner put on notice of the independent status of the professionals with whom he might be expected to come into contact,” the hospital cannot be liable.

    An important factor is whether the plaintiff signed a consent form that clearly states the physician is not a hospital employee. In such cases, a plaintiff typically cannot prove that he or she reasonably believed the physician was an employee of the hospital. One court has found that “consents are almost conclusive in determining whether a hospital should be held liable for the medical negligence of an independent contractor.” Id. ¶40. On the other hand, a plaintiff may be able to bring a claim if the consent is ambiguous or confusing regarding the physician’s employment status.

    New Issue: English-Language Consent Forms and a Non-English Speaking Patient

    Mizyed presented unique facts not addressed in any previous case - the plaintiff’s limited ability to speak English and inability to read or write in any language. Therefore, the plaintiff argued that he did not receive notice of or consent to the terms of the consent forms, and that the hospital was required to ensure the plaintiff actually understood the terms and legal implications of the consent forms. The plaintiff asked the court to find that the hospital was required to provide oral Arabic translation of the consent forms. The court, however, rejected the plaintiff’s arguments.

    First, the court rejected the plaintiff’s argument that the hospital was required to provide him actual notice of the terms of the consent forms so that he subjectively understood them. The court explained that “if a patient has actual or constructive knowledge that the doctor is an independent contractor, the hospital is not vicariously liable.” Id. ¶51. Therefore, the hospital had no duty to determine the plaintiff’s education or ensure that he understood the English language consent forms. All the hospital had to show was that the plaintiff was “placed on notice” that his physicians were not hospital employees. Here, the court pointed to the involvement of the plaintiff’s daughter who assisted the plaintiff in reviewing the consent forms and encouraging him to sign. Although the daughter claimed not to have read the consent forms entirely, the hospital “had no reason to doubt that she had fully read and understood the forms and accurately communicated them to her father before he signed, indicating his understanding and consent.” Id. ¶52. Under these circumstances, “the hospital could rely on [the plaintiff’s] signing of the documents as evidence of his understanding of their terms.” Id.

    Second, the court rejected the plaintiff’s position because a person is presumed to have knowledge of the contents of a document he signs, whether or not he actually read the document. Applying that principle here, the court pointed to an Illinois Supreme Court finding that “illiteracy does not exempt a party from the terms of the document he signs.” Id. ¶55. Thus, the court concluded that “although he may not have been able to read the consent forms, his decision to sign them legally signifies that he ‘had an opportunity to become familiar with and comprehend’ their terms.” Id.

    In sum, the court found that the plaintiff’s “inability to read or speak English does not undermine the effect of the consent forms that he signed” and “conclude[d] that the explicit language of those consent forms put him on notice that his treating physicians were not [the hospital’s] agents or employees, defeating his apparent agency claim.” Id. ¶57.

    Significance In Light of Population Trends

    The importance of this decision is only likely to grow in coming years. Recent statistics show that the United States is becoming more linguistically diverse. According to the U.S. Census Bureau, the number of people that spoke a language other than English at home grew from about 23 million in 1980 to more than 59 million by 2010. Language Use in the United States: 2011, American Community Survey Reports, p. 7, Table 2, U.S. Census Bureau (August 2013). During this timeframe, the total population increased by about 38 percent, while the number of people that spoke a language other than English at home increased by more than 158 percent. By 2011, more than 60 million people in the U.S. spoke a language other than English at home. Of those 60 million people, over 13 million could not speak English well or could not speak English at all. Similar statistics were reported in Illinois, where more than 2.7 million people spoke a language other than English at home, of which about 600,000 people (or 22 percent) could not speak English well or could not speak English at all. If such trends continue, this decision could be applied to many future cases.

    Decision Prevents Headaches for Hospitals and Other Institutions

    The Mizyed decision is a big win for hospitals and other institutions facing similar issues with consent forms. If the court had adopted the plaintiff’s arguments, it would have created significant problems for hospitals and health care providers, many of which would have no logical solution. For instance, in the Chicago metropolitan area, at least 153 languages are spoken. It would be nearly impossible for hospitals to provide consent forms in each patient’s native language. This would not even address the issue of illiteracy presented in Mizyed. Furthermore, it would be nearly impossible for a hospital to know whether a patient subjectively understands the terms of a consent form. For patients that do not speak English it is reasonable for the hospital to rely upon a family member to interpret the consent form. In cases where a patient asks for an interpreter or asks a question about the consent, it may make sense for the hospital to attempt to accommodate the patient, assuming the hospital can find an interpreter for the given language within a reasonable time frame in light of the patient’s condition. Fortunately, reason won out in the Mizyed case, which provides hospitals and other institutions a solid defense in similar future cases.