What if an injured worker was legally prevented from discussing his or her medical condition directly with the worker’s doctor, if the worker was required instead to listen to the doctor’s questions relayed to him or her by a third party, with whom the worker had little or no prior contact and then utter his or her response not to the ear of the doctor responsible for treatment, but instead to that of a third party, with only the hope that any nuance in the worker’s message would be understood by the medically untrained intermediary and then appropriately communicated to the doctor? What if the worker’s medical condition wasn’t some rather objective condition like a broken femur, a laceration of the foot, or a herniated disc, but rather a difficult to diagnose subjective mental condition like PTSD?
A divided Florida appellate court, in Trejo-Perez v. Arry’s Roofing, 2014 Fla. App. LEXIS 8384 (1st DCA, June 3, 2014), recently said that if all the above happened to a Florida injured worker–no big deal–even if the uncontroverted medical evidence in the case indicated the worker would be much better served if he could directly communicate with the medical professional.
Claimant suffered a closed head injury, among other injuries, when he fell from a ladder–a 30- to 40-foot drop–while working for a roofing company. The Employer/Carrier (“E/C”) accepted the accident and injuries as compensable and authorized treatment from several doctors, including a neurologist. The neurologist recommended that Claimant undergo neuro-psychological evaluation with a Spanish-speaking psychologist. Claimant’s primary language is Spanish and it was unclear whether, and to what extent, he understood and could communicate in English. The E/C selected and authorized a psychiatrist to perform the recommended evaluation, and made a translator available for any office visits. Claimant refused to attend the first scheduled visit, and subsequently filed a petition for benefits seeking, inter alia, authorization for a Spanish-speaking neuropsychologist.
During the neurologist’s deposition, he was told that the E/C had made a translator available for Claimant’s psychiatric evaluation. The neurologist responded that it wasn’t the same as when a Spanish-speaking patient was seen by a Spanish-speaking psychologist, that the diagnosis depended upon the communication between the psychologist and the patient and that there were several Spanlish-speaking psychologists and psychiatrists in the Tampa area.
The Judge of Compensation Court (JCC) found that the provision of a Spanish-speaking psychologist was not a medical necessity.
Appellate Court Decision
Claimant argued in relevant part that the JCC ignored the neurologist’s unrebutted medical opinion testimony about the medical need for a Spanish-speaking psychologist to perform the neuro-psychological evaluation. The majority of the appellate court indicated that the question, however, was not whether the testimony was unrebutted, but “whether it was sufficiently persuasive to the finder of fact, in the first instance, to establish medical necessity.” Quoting Closet Maid v. Sykes, 763 So. 2d 377, 383 (Fla. 1st DCA 2000), the majority indicated that in the workers’ compensation realm, “the [JCC’s] determination of reasonable medical certainty depends on the substance of the evidence, rather than the use of the ‘reasonable medical certainty’ terminology, or any other so-called ‘magic words,’ by a medical witness.”
The majority indicated that here, the neurologist had used the “magic words,” but, based on the JCC’s permissible evaluation of this evidence, the substance of his testimony failed to establish reasonably medical certainty; the testimony failed to show that it was “a must.” In any event, said the majority, unrebutted medical testimony could be rejected, so long as there was a reasonable evidentiary basis for doing so. The majority also observed that the JCC had found Claimant’s position inconsistent, that the JCC did not believe Claimant’s explanation for why he needed a Spanish-speaking psychiatrist and neurologist, but did not need a Spanish-speaking physician to treat his physical injuries. The majority of the court agreed with the JCC’s conclusion that while it might well be reasonable for Claimant to prefer a Spanish-speaking physician, a careful reading of the neurologist’s testimony on this issue fails to yield any evidence of medical necessity.
Judge Makar concurred, noting that the broadening and deepening range of a workforce that speaks different primary languages is an ongoing challenge to the delivery of health care services nationwide and in Florida and that making health care services more accessible to patients with limited English proficiency (LEP) was “a Herculean and glacial task.” Makar added that in an ideal world with unlimited resources, patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages. That ideal was unattainable, however, and in its stead our society had gravitated to the use of translators (for written communication) and interpreters (for verbal communication) in the medical context.
Judge Thomas dissented, indicating in relevant part that no medical testimony supported the JCC’s view that the Spanish-speaking psychiatric evaluation was not medically necessary. In fact, said Judge Thomas, just as Claimant had rightfully asserted, there was no contrary medical testimony at all on this point–the JCC “simply rendered her own unqualified and unsubstantiated medical opinion, which is contrary to section 440.13(2)(a), Florida Statutes.” Thomas added that the majority opinion’s adverse practical impact, although surely not its intent, was to establish a precedent by which Spanish-speaking employees could be required to accept a lesser standard of medical care in Florida than English-speaking employees, who could not be required to accept the presence of a third-party layperson during medically necessary, intimate psychotherapist-patient treatment sessions. Thomas concluded by indicating that the case necessarily turned on the issue of whether a Spanish-speaking employee may be required to accept psychiatric evaluation by a non-Spanish speaking psychiatrist, against the medical opinion of a treating neurologist. In Thomas’ view, the obvious answer was no, because to do so is to deny medically necessary treatment in violation of Chapter 440.
Judge Makar cogently points out that the diversity of the workforce places practical limitations on the provision of medical care to injured workers. Citing Wikipedia, the judge indicates that some 337 languages are spoken in the United States, twenty-four of which have more than 200,000 speakers and that accommodating the variables is a huge challenge. But in a real sense, that is a strawman argument. The claimant’s language in the instant case wasn’t Yiddish (ranked 28th in Wikipedia’s listing, with 148,155 speakers as of 2009)–it’s Spanish. The issue isn’t, therefore, providing everyone, no matter what his or her language, with a native-tongue speaking expert. The issue was whether it was medically necessary to supply a Spanish-language speaking psychologist here. The neurologist testified that several practiced in the Tampa area.
One can resonate with a JCC who doesn’t want to set precedent for having to provide Spanish-language experts in virtually every situation, but that wasn’t the issue with faced by the JCC here. The JCC could have said that the E/C failed to rebut the unequivocal evidence presented by the claimant. That would have left room for the next E/C facing this issue to provide contradictory evidence, if such could be found. Instead, the JCC said the neurologist’s testimony, while unrebutted, just wasn’t convincing. It wasn’t convincing based upon what? The JCC apparently thought the claimant hadn’t offered strong enough testimony as to his need for the Spanish-language speaking expert. If the claimant could express himself more cogently in English, he wouldn’t need a Spanish-language speaking medical expert. And so, the claimant faced a double-whammy; his inability to convince an English-speaking JCC meant he would be denied the opportunity to discuss his medical situation with a Spanish-speaking expert.
For hundreds of years, physicians have recognized that the health and well-being of patients depends upon “a collaborative effort between physician and patient,” see American Medical Association Opinion 10.01, “Fundamental Elements of the Patient-Physician Relationship.” A close friend, a physician, has told me that to be sure, the physician treats the patient, but an optimal outcome usually requires the patient also to be intimately involved–in providing a complete and accurate medical history, in giving feedback on past treatments, and the like. Indeed, the AMA goes so far as to state that patients share with physicians the responsibility for their own health care.
But what happens to that “collaborative effort” when the one-to-one, doctor-patient relationship is turned into a triangle, where a mandatory third party is added as a go-between? What happens to the doctor-patient bond when the statements of one to the other must be filtered, processed, understood, and then translated by an intermediary? Is real damage done to the patient? Is such damage avoidable? Perhaps I’m resorting to hyperbole here, but I’m left with the thought that within the context of Florida’s workers’ compensation laws, the doctor-patient relationship can often now be described accurately as the “doctor-interpreter-patient” relationship.