Articles

Health Literacy

Working With Lawyers to Make Health Information Clear

By Helen Osborne, M.Ed., OTR/L
President of Health Literacy Consulting
On Call Magazine, January 29, 2009

I often lead plain language workshops, teaching clinicians and other health communicators how to convey health messages more clearly. Plain language goes beyond simple words and short sentences. It includes organizing information from the reader’s perspective, setting a tone that invites readers to read, using words that readers already know or clearly defining new ones they need to learn, and making messages visually appealing with formatting such as bold type, bullets, and large font.

Almost always, participants get” what to do and leave my workshops with the skills they need to begin writing health documents in plain language. But before they go, someone invariably asks, “What can we do about those lawyers?” This question may be about mandated, multi-syllabic, complicated regulatory documents, such as HIPAA or informed consent. Or relate to their organization’s document approval process in which lawyers routinely nix materials written in plain language.

To address these concerns, I spoke with Joseph Kimble, who is a law professor at Thomas Cooley Law School in Lansing, Michigan. He also is a champion of plain language and author of numerous articles and a book called Lifting the Fog of Legalese.

Getting beyond the stuffy uncertainty of legalese

Kimble acknowledges that many lawyers object to plain language, saying it is not sufficiently precise or does not offer an organization adequate legal protection. He says, however, these objections are myths. Plain language does not change the meaning, Kimble says. In fact, it tends to make the meaning clearer.

In Kimble’s opinion, traditional legal writing may cover up all sorts of uncertainties. For instance, when a statement reads “refer to information herein,” does that mean that additional information can be found on the same page, within a certain section, or somewhere in the entire document? It would be much clearer and more precise to say, “To learn more, go to page x.”

Kimble says that the myth of precision was exposed many times during his work in redrafting the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The process of putting them in plain — or plainer — language revealed lots of inconsistencies and ambiguities.

Another myth, according to Kimble, is that traditional legal language is needed to protect an organization if a case is brought against it. “Nonsense,” says Kimble. He says that if a plain language version of information has the same content and substantive meaning, then an organization will get exactly the same protection.

Kimble is forthright in his criticism of traditional legal writing, or “legalese.” He says that documents do not need stuffy words such as “thereof” and “pursuant to.” While acknowledging the need for certain legal content, Kimble firmly believes most information can be explained in ways ordinary citizens can understand. To Kimble, “plain language means writing clearly and effectively for your readers.”

 

 

Working with lawyers to make health information clearer

The good news is that there are ways clinicians can work with lawyers to produce clear, simple, and understandable health documents. Kimble offers this example of what to do when lawyers deny approval to a plainly written document:

 

If the lawyer insists on certain wording, you (the plain language writer) should ask why. Find out if particular wording is required by statute or regulation. Ask for its citation number in the Code of Federal Regulations (or whatever other source the lawyer is referencing) and then look up the requirements. You can usually do this without assistance from a lawyer.

In Kimble’s experience, most statutes and regulations don’t set out a template or give exact words that have to be repeated verbatim. If the statute states, “Document must include the following language,” then you’re stuck with it, he says. But if instructions are more general, such as “Must notify the consumer that…” without requiring specific language, Kimble says you can convey the concept in plain language so long as you include the required substance.

Here are some other ways clinicians can work with lawyers:

  • Create a team. Writing an understandable document takes a team of subject-matter experts, a plain language writer, and likely readers. For official healthcare documents, subject-matter experts should include clinicians (who ensure medical content is correct) and lawyers (to confirm legal accuracy). The writer should be skilled in plain language and serve as an unceasing advocate for readers. As well, the team should include one or more readers to review each draft and determine whether documents truly are understandable and useful.
  • Write in plain language. Writing in plain language is a skill like any other, says Kimble. It not only includes using simpler words and shorter, less contorted sentences but also presenting information in ways that engage readers. An example is using the pronoun “you” rather than “the health plan participant.”
  • Consider adding a simply written summary. Many legal or regulatory documents are long and complex. Kimble doesn’t see any problem in also offering a plainly written summary, so long as:
    • It is clearly titled, “This is a summary only.”
    • Content is reasonably accurate and not misleading.
    • The Summary refers to the full document.
  • Define only those words that need defining. Look critically at words and don’t define unnecessarily, says Kimble. Readers may already know what key terms mean. Show close variations with parentheses. An example: “Co-payment” (sometimes called ‘co-insurance’ or ‘co-pay’).” If uncertain about which words to define, test them with intended readers or at least get an opinion from outsiders. For instance, Kimble might ask non-lawyers what a word such as “negligent” means and how they would define it. If their answers are incomplete or incorrect, then he would define it for non-legal readers.
  • Format documents to improve readability. Good document design encourages readers to look at documents and helps them focus on important information by using formatting such as headings, bullet points, and white space. Kimble says readers can feel defeated and discouraged, as if they don’t have a chance at understanding, when a page looks like an imposing legal document.

Lawyers, like health professionals, are becoming increasingly aware of the need for and benefits of plain language. But the change is slower than Kimble would like. “Legal writing is not as bad as it used to be, but much of it still is pretty bad,” he admits. On the bright side, Kimble sees more and more law schools and legal organizations committed to plain language.

Ways to learn more:

Joseph Kimble is a professor at the Thomas Cooley Law School in Lansing, Michigan. He can be reached by email at kimblej@cooley.edu.

Health Literacy Consulting. Helen Osborne helps organizations communicate health messages in ways patients and families can understand. To learn more, go to www.healthliteracy.com

The Center for Plain Language defines plain language this way: “A communication is in plain language if the people who are the audience for that communication can quickly and easily find what they need, understand what they find, and act appropriately on that understanding.”

Plainlanguage.gov is a federal group working to improve communication from the government to the public. Its website states, “No one technique defines plain language. Rather, plain language is defined by results—it is easy to read, understand, and use.”

Helen Osborne, MEd, OTR/L, is president of Health Literacy Consulting. She received two “Gold” 2008 Plain Language awards from NIH for her work on the NCI booklets “Radiation and You” and “Chemotherapy and You.” Her column appears regularly in On Call. You can contact her by e-mail at Helen@healthliteracy.com.


Article reprinted with permission from On Call magazine and published by a division of Boston Globe Media.