Our two favorite television shows occasionally force us to follow subtitles while a character is speaking a harsh (to our ears, anyway) foreign language. In The Americans, the spies in the Russian embassy treat us to long exchanges in their mother tongue, reminding us of the bad old days of Kruschev, Brezhnev, and Tretiak, and also bringing to mind the bad new days of the former KGB guy currently running the Kremlin. The Drug and Device Law Son is studying Russian in school, but refuses to watch The Americans, which is surprising and too bad because (a) the show is certainly violent and sexy enough, and (b) we’d like to find out whether our tuition dollars are really working. Meanwhile, on Game of Thrones, the Mother of Dragons likes to show off her not-quite-mastery of Dothraki. No DDL heir, as far as we know, is studying Dothraki, but there are websites with in-depth instruction in that language. Did we mention that Dothraki is a fictional language? We find all of this a bit hard to understand.
The inability of a non-English speaker to understand English pops up in the legal biz a lot. We remember prosecuting a hapless fellow many years ago for solicitation of prostitution. That is, of course, a crime of words (and sometimes gestures). As per usual, the key witness was a female police officer who was (sadly for the defendant) only pretending to be a prostitute. She had no trouble reciting the explicit cacophony uttered by the randy miscreant. The jury took less than 30 minutes to convict. But sentencing got rather complicated. It turns out that ten months earlier the same idiot showed up on the same street corner and asked the exact same nasty question ... to a police officer. Unbelievably bad luck or unbelievable stupidity? Either way, the prior conviction was going to increase the sentence significantly. It would probably turn a two week stint in an orange Caltrans outfit, with him enjoying the fresh air whilst collecting litter alongside the 405, into a 90 day stint in county jail where he would don a slightly different orange suit. Desperate to avoid incarceration, the defendant challenged the validity of the prior conviction on the grounds that he had been denied access to an interpreter. He claimed he spoke only Farsi. He had an interpreter during the more recent trial, but to anybody paying attention in the courtroom, including the Judge, he didn’t need one. He spent a lot of time reacting immediately to testimony and chatting with his attorney, without any aid from the interpreter. Challenging the prior conviction essentially meant that the public defender had to argue that the earlier public defender had rendered ineffective assistance of counsel. Why didn’t the earlier PD ask for an interpreter? The current PD, by the way, was the son of a very well known lawyer. She was known, at the very least, by the Judge in our case. After a brief hearing, the Judge denied the challenge to the prior conviction, and did so via a remarkably heated speech that still rings in our ears. It went something like this: “(a) Mr. Defendant, I have been watching you throughout all these proceedings and it is clear to me that you are a liar, and you are a liar who speaks English; (b) I am so outraged by this farce that I will delay the sentencing so that I have time to get over my anger, which is profound; and (c) Mr. Public Defender, your attacks on the prior conviction and on the competence of your own office are disgraceful. I am telling your mother.” Wow. We weren’t sure whether we felt sorrier for the defendant or his hapless lawyer. Okay – the truth is that we felt sorry for neither. The absence of an interpreter in the earlier case did not make any difference.
The absence of an interpreter also made no difference for the plaintiff in Basanti v. Metcalf, et al., 2014 U.S. Dist. LEXIS 43463 (D. Col. March 28, 2014), a medical malpractice action. The plaintiff claimed that her primary language was Punjabi and that she was a person with limited English proficiency (“LEP”). Her treating doctor, who was one of the defendants, apparently did not speak Punjabi. The plaintiffs claimed that the doctor should have brought in an interpreter. Failure to bring in an interpreter, according to the plaintiff and her expert witness, caused the treater to fail to diagnose a congenital cyst on her thoracic spine, a condition that ultimately resulted in paraplegia of her lower extremities. Naturally, the defendant doctor said that he was able to communicate effectively with the plaintiff regarding her medical condition.
This is a Daubert case because the plaintiff tendered an expert on language issues in healthcare. That expert opined that the provision of adequate language services “likely would have resulted in timely diagnosis and treatment of her thoracic intradural cyst and in preventing her subsequent cord compression, paraplegia and neurogenic shock.” Basanti, 2014 U.S. Dist. LEXIS 43463 at *3. That expert was a doctor, but he was a pediatrician. The plaintiff was an adult. Still, the expert offered research showing that a higher rate of clinically significant errors occur when an ad hoc interpreter is used in treating an LEP patient as opposed to when physicians used a trained medical interpreter. He opined that language barriers “can be a major cause of patient safety incidents and adverse outcomes.” Id. at *14.
Just like in that old criminal case, the issue was whether the absence of an interpreter made a difference. But while the plaintiff’s expert could generally say that absence of an interpreter can alter diagnoses – a sort of general causation opinion – he was incapable of showing that an interpreter would have prompted a different diagnosis and treatment course in the plaintiff’s specific case. The expert admitted that he lacked expertise and experience treating and diagnosing adults with endodermal cysts in the thoracic spine or compressive lesions. Further, the plaintiff provided no indication that the expert possessed the expertise to determine what additional information may have been necessary to diagnose or treat the plaintiff’s condition earlier and more effectively. Accordingly, the court excluded the expert’s opinions on whether adequate language services would have resulted in earlier diagnosis, more effective treatment, or would have prevented plaintiff’s injuries. The gap in the expert’s medical expertise meant that the jury’s consideration of the theory of liability would amount to speculation on the issue of causation. It is analogous to those cases where the plaintiff and/or plaintiff expert indulge in, or the jury is invited to engage in, speculation about how a difference in the warning on a drug would have produced a different result. An expert needs to connect the causation dots. When an expert cannot do so, the expert’s “opinions on the appropriate standard of care do not logically advance a material aspect of this case and, as such, will not assist the trier of fact.” Id. at *20.
We call that a good result. The DDLS would call it “khorosho.” The Dothraki Queen (Khaleesi) would call it “Davra.”