Medical Repatriation: Montejo v. Martin Memorial Medical Center

Verville Air Coach brochure, 1918

[Ed. note: Today's post comes from Dean Kathleen M. Boozang and Erika M. Lopes.  Erika is a Seton Hall Law student and a graduate of Trinity College, Connecticut, where she majored in Political Science. Ms. Lopes is a research assistant to Kathleen M. Boozang, and formerly worked as a litigation paralegal specializing in both Class Action and Foreign Corrupt Practices Act matters for Skadden, Arps, Slate, Meagher & Flom, LLP.]

A Florida jury won’t resolve the issue of how to provide health care to severely injured undocumented aliens, but it may signal to hospitals that engage in “medical repatriation” whether there are any legal risks attendant to the practice.  The case, Montejo v. Martin Memorial Medical Center, involves a claim of false imprisonment brought by the legal guardian of a patient transported by private plane in 2003 to Guatemala for rehabilitative care following severe brain injuries sustained in a car accident involving a drunken driver and two deaths.

Mr. Jimenez remained a patient in Martin Memorial Hospital for almost three years following the accident, incurring $1.5 million in medical bills, of which only $80,000 was reimbursed by Medicaid. As reported by local newspapers (here and here) the hospital CEO testified last week that the transfer to Guatemala was motivated by the fact that Mr. Jimenez missed his family and country — the medical staff came up with the idea to return the patient to “his own culture” where he would “be around his language . . . and [] be in a situation that was more relaxed than an acute care hospital.”  According to the hospital executive, the transport to Guatemala had nothing to do with the financial burden to the hospital of Mr. Jimenez’s care.  While the Guatemalan health ministry agreed to assume Mr. Jimenez’s care, a Guatemalan physician who testified for the plaintiff claimed that Guatemala does not have the kind of rehabilitation facility required by Mr. Jimenez’s condition.  In addition, the jury was presented with a 2003 affidavit from the vice consul for the Consulate General of Guatemala, in Miami stating that she had no authority to place Jimenez in a facility, no doctor to care for him and no way to pay for medical care he needed.  Mr. Jimenez, 37, currently lives in a remote village where he is largely cared for by his elderly mother.

The guardianship plan prepared for Jimenez, filed short of two years after his accident, recommended twenty-four hour skilled care.  The hospital intervened in the guardianship proceeding claiming that it was not the appropriate facility for the long-term rehabilitative care required.  Responding to the guardian’s objection to the hospital’s planned repatriation, a trial court directed the guardian to stop frustrating the hospital’s plan for relocation, and directed the hospital to provide a suitable escort and medical support.  On the day that the hospital was due to respond to a motion to stay, Jimenez was transported to Guatemala via private plane.  An appellate court later reversed the trial court order, citing the insufficient evidence that the patient would receive adequate care in Guatemala, a requirement of federal law directing hospitals to prepare appropriate discharge plans for patients.  42 C.F.R. § 482.43.

The guardian’s false imprisonment suit against the hospital was initially dismissed after the hospital argued that Montejo could not demonstrate that the detention was unreasonable and unwarranted — a necessary element of a false imprisonment claim.  The hospital contended that its actions were executed pursuant to a then-valid court order, and were therefore entitled to qualified or quasi-immunity. The appellate court disagreed on the grounds that the actions were not taken during the course of a judicial proceeding nor in an effort to prosecute or defend a lawsuit, but were carried out in the vindication or enforcement of a purely private right.  The court concluded that affording absolute immunity from tort liability would be an unwarranted and improper extension of the litigation privilege.  Accordingly, the appellate court reversed the trial court’s dismissal of the false imprisonment claim, and remanded to the lower court for a determination of whether the hospital’s actions were unwarranted and unreasonable under the circumstances.

The guardian is seeking the cost of Mr. Jimenez’s care and punitive damages from the hospital.

Health Care Reform & Undocumented Aliens

Hemodialysis Machine, New. Photo by Patrick Ganz

Several commentators have already observed the absence of any discussion of undocumented aliens in the discussion about health care reform.  And yet, the issue is huge, particularly for those ten or so states in which these individuals disproportionately live and work.  The June 2009 issue of American Journal of Kidney Disease includes an article on a survey of nephrologists^[1] who report an increasing number of undocumented aliens with End Stage Renal Disease (ESRD).  Unsurprisingly, access to care for these individuals is inadequate and shrinking, with about one third of physicians reporting undocumented patients to be wholly reliant on emergency dialysis, which carries with it higher cost and morbidity; 67%, however, reported availability of long-term dialysis care.

A significant minority of physicians reported advising their undocumented patients to move to another state or country to access care, even though accessing appropriate renal care is difficult due to scarcity in Mexico, the native country of the majority of undocumented aliens in the United States.^[2] On the other hand, undocumented aliens present much younger (40’s) with ESRD, which causes many nephrologists to argue that provision of kidney transplants would be a much less costly care approach, long-term.  Federal law prohibits use of Medicaid funds for transplants for this population.^[3]

Many hospitals find themselves “stuck” with chronically ill patients who no longer require acute care, but require discharge to nursing homes or rehabilitation facilities because their debilitation is so severe.  These include victims of car accidents and crimes, for example.  These patients originally appear in hospital emergency rooms in acute distress, thereby requiring the hospital to treat and stabilize pursuant to their EMTALA obligations.  Medicaid has in the past made some monies available to reimburse hospitals for this episode of care (although it was never enough, according to the hospitals, and while the most recent authorization law expired in 2008, funds remained for distribution into 2009).  Further, hospitals are required by Medicare Conditions of Participation to prepare and implement an appropriate discharge plan.  This becomes impossible to accomplish if there is no hope of reimbursement for the subsequent care facility.

Assuming there are Medicaid monies to be had for the emergency care of this population, courts have been split over the question of whether the Medicaid emergency services coverage provision covers the long-term and chronic aftermath of an acute situation.  Specifically, the question is whether the reimbursement is limited to the treatment required to stabilize the patient with leukemia, ESRD, or brain injury, or whether it extends to the post-stabilization care required to prevent a future emergency condition.   Greenery Rehabilitation Group v. New York City Human Resources Administration, 150 F.3d 226 (1998), concluded that if the patients’ post-emergency injuries were properly classified as chronic rather than acute, they do not qualify for Medicaid coverage.  Scottsdale Healthcare Inc., v. Arizona Health Care Cost Containment Syst. Admin., 75 P.3d 91 (D.C. Ariz. 2003), rejected the Second Circuit’s focus on stabilization as too narrow, holding instead that the “focus must be on whether the patient’s current medical condition–whether it is the initial injury that led to admission, a condition directly resulting from that injury, or a wholly separate condition–is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result” in an emergency condition. Id. at 98.  The issue has also been taken up in the last few years by the Connecticut and North Carolina Supreme Courts, in which both plaintiffs’ received emergency room diagnoses of leukemia and sought coverage of their subsequent chemotherapy treatments — these Courts also split on the issue.

These cases are merely a snapshot of a much larger issue.  A health care reform bill that doesn’t address the health care of both legal and illegal aliens will be inadequate, and adversely and disproportionately affect the several states where large numbers of immigrants live, work, and school their children.  The solution must address access to primary and emergency care as well as treatment for chronic conditions.  Those states whose workers compensation systems are inadequate in their coverage of immigrants disabled in the course of their employment might also ameliorate the crisis presented by this population by reform in this area as well.

[2] Id. at 947.

[3] CMS Uniform Policy Manual § 3000.01