Public Health Law Map - Beta 5 - Medical and Public Health Law Site

different dialects but with different meanings. Sometimes this is just embarrassing.
Usually it results in the patient’s believing that he or she understands the form,
which he or she does in the context of the dialect, but misunderstands what is about
to be done. This problem is similar to the functional illiterate who recognizes some
words but cannot make out the subtle meaning of the document.
The best solution for non-English speakers who may not read standard-school
Spanish or another well-defined national languange is to have someone who is
medically knowledgeable explain the treatment to the patient in his or her own
dialect, with the physician present to answer questions. Ideally the physician should
be able to understand enough of the patient’s language to know if the translation is
appropriate. Real informed consent is very difficult if the patient and the physician
have no common language.
e) Illiterate Patients
The ritual of the patient’s reading and signing a form or chart note is meaningless if
the patient is illiterate. Studies in the United States have found a substantial fraction
of the population to be functionally illiterate—unable to read well enough to carry
out day-to- day tasks. When the material that must be read is relatively technical in
nature, such as a description of the risks and benefits of medical treatment, the
number of persons capable of understanding the material drops substantially.
The first problem is determining if the patient is literate. This is not always easy, for
there are some intelligent, successful people who have developed elaborate
strategies to conceal their illiteracy. Moreover, many people in the United States are
literate and well educated in a language other than English, so for them an Englishlanguage
form is useless. Although this is obvious to the physician obtaining the
consent, it seldom stops administrative personnel from having the patient sign the
routine consent form. This undermines the documentation of the oral consent by
calling into question the integrity of the process.
This problem requires a translator familiar with the patient’s dialect and with the
medical terms. The translator should be identified in the medical record. If possible,
the translator’s address and background should be on file with the hospital or
physician. The translator may also serve as the witness if no one else fluent in the
patient’s language is available. The translator should be cautioned not to speak for
the patient but to indicate if the patient’s answer is inappropriate. The translator
should write a brief note in the chart as to the patient’s understanding and linguistic
abilities.
2. Documenting the Oral Consent
The best form of documentation is a recording, either audio or video. These are
cheap and easy to make but difficult to store. Medical records departments are
equipped to store flat, relatively indestructible materials; lumpy items get lost or
destroyed. This will change as medical images start being stored
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