Today’s burning question: Could a medic who fails to obtain an informed refusal from a patient who does not speak English be liable? Could the fire department be held liable for not providing refusal forms in other languages?
Answer: While any medic who accepts a refusal against medical advice without obtaining an informed refusal could be held liable under the appropriate circumstances, I think it would be pretty difficult (not impossible) to hold the medics or the fire department liable for not providing refusal forms in foreign languages. The ultimate test in any situation will come down to what would the reasonable prudent medics/fire department have done under the circumstances.
It goes without saying that EMTs/medics need to get a patient’s consent to treat and informed refusal to decline – but the reality is we cannot always do that for a variety of reasons, including unconscious patients, minors, and impaired patients. In such cases implied consent may require that we not allow certain patients to decline aid – or that we at least exercise due diligence to try to secure the patient’s cooperation. Contacting medical control for guidance is always advisable.
In language barrier cases – we have a conscious competent patient with whom we cannot communicate. Any refusal we accept cannot possibly be an informed refusal. Given the number of foreign languages spoken in many communities – how could any fire department or EMS provider possibly have refusal forms to cover them all. And even if you have the forms in the patient’s language – how would a medic possibly be able to explain the risks of refusal to the patients, or the symptoms they needs to watch out for, etc. etc. etc. When I was with Providence, the mayor at the time used to boast that 83 different languages were being spoken in Providence schools. If a fire department was somehow able to have refusal forms for all 83 known languages, could someone claim you should have had 84, or 85… where would it end?
At the end of the day – separating everything else out – we are held to the reasonably prudent professional standard: what would the reasonably prudent professional firefighter, EMT, or medic do under the circumstances. If the medic has no consent/RAMA forms in a different language – the medic has to do the best he/she can. That is all any of us can be judged by.
If the patient decides to sue the medic and/or the fire department – they will likely find themselves challenging the department’s policy decision to not have forms in the appropriate foreign language. That decision is likely to be considered a discretionary policy decision subject to immunity protection that cannot be second-guessed in a court-room.
This brings me back to a point I try to make in my lectures: Do the right thing because its the right thing to do. Don’t do it because you are afraid of liability. If we use liability as an excuse to do things we become like Chicken-Little. We also get crazy ideas about how to limit our liability by useless exercises like changing our policies to guidelines… Do the right thing… prevent the harm from happening to a patient… and you don’t have to worry about liability.
If you TRULY believe a patient needs to go to the ER and you cannot communicate with them to explain that… get them to the damn ER. Find a way. Don’t be grousing about the fact your fire department lacks some magical liability protection associated with refusal forms in every conceivable language. If the patient needs to go to the ER, get them to the ER. If you don’t think the patient needs to go and are just looking for a refusal sign-off to CYA… well… that is a different question, isn’t it….
Note that in some jurisdictions, 911 has a foreign language translation service available via phone… so certainly where such an option is available, it should be explored.