Cast back into "tempest-tost" waters: the "uncharted seas" of private medical repatriations.

• Author: Greenlee, Sarah E.

While driving on a Florida road during the course of his job as a gardener in the winter of 2000, Luis Jimenez was struck head-on by a drunk driver who had stolen a van. (1) Two of Jimenez's fellow passengers were killed instantly. The driver and Jimenez, both severely injured, were taken to the emergency department at Martin Memorial Medical Center, a not-for-profit community hospital. Jimenez was unconscious and in shock from extensive bleeding. He had two broken thigh bones, a broken arm, multiple internal injuries, facial lacerations, and a severe head injury. (2) Perhaps most significantly to his treatment plan, he also arrived at the hospital as an undocumented and uninsured immigrant.

Jimenez survived the accident, but he did so with serious permanent brain injuries. (3) Though he lingered in an unconscious, unresponsive state for over a year, he eventually--and quite suddenly--awoke and began interacting with those around him. (4) In time, he was able to regain mental capabilities comparable to those of an eight- or nine-year-old child. (5)

His basic recovery took quite some time--and an enormous amount of money. The cost of Jimenez's care amounted to over $1 million. (6) Jimenez was uninsured and unable to pay for his care. The federal government covered only $80,000 of the total bill. (7)

Facing an indefinite stay, mounting costs of care, and no government or private funding to support Jimenez's rehabilitative, non-emergency treatment, Martin Memorial began to consider its options. When the hospital suggested that Jimenez be transported to Guatemala, his country of origin, the family and his legal guardian objected. (8) Litigation on the matter ensued, but before the case was fully resolved, the hospital secretly chartered a plane and transported Jimenez to Guatemala without the knowledge of his family or legal guardian. (9) Though a court eventually ruled that the hospital's actions were illegal, (10) it was too late--Jimenez had been medically repatriated.

Jimenez's situation is not unusual--indeed, his roommate for part of his time at Martin Memorial was repatriated to Jamaica. (11) Many immigrants are uninsured. Though hospitals are required to provide emergency treatment to everyone regardless of ability to pay, (12) the government only reimburses the hospitals for a portion of the uncompensated care and ceases all compensation as soon as the patient is medically "stable." (13) Hospitals are required by federal law to arrange for long-term care for those who need it, (14) but Medicaid does not cover long-term care for undocumented immigrants or those who are newly arrived in the U.S. (15) In addition, most long-term care facilities will not accept patients who are uninsured or even those who have Medicaid. (16)

"Medical repatriation" refers to a practice in which private hospitals attempt to return immigrants--both documented and undocumented and, in at least one case, a U.S. citizen (17)--to their countries of origin because the hospital determines that it can no longer afford the costs of caring for them. Federal immigration and customs enforcement are not involved in these cases. While most hospitals say that they only conduct cross-border transfers once patients are medically stable, and that they arrange to deliver them into a physician's care in their homeland, "[these] hospitals are operating in a void, without governmental assistance or oversight, leaving ample room for legal and ethical transgressions on both sides of the border." (18) Stephen Larson, a migrant health expert and physician at the Hospital of the University of Pennsylvania, told the New York Times that "[t]he opportunity to turn your back is there [for hospitals].... You're given an out by there not being formal regulations. The question is whether or not litigation, or prosecution, catches up and hospitals start to be held liable." (19)

This Comment explores the legal and regulatory context in which medical repatriations take place. Part I of this Comment will provide a background picture of medical repatriations in the United States. Part II will examine hospitals' legal obligations with a particular emphasis on civil liability under state law and federal statutory law, and will address the inconsistent incentives these laws and regulations promote. Finally, Part III will provide brief suggestions for next steps for resolving some of the tensions in existing law, as well as guiding principles for possible reforms.

1. MEDICAL REPATRIATIONS IN AMERICA

   In 1970, there were approximately 9.6 million immigrants in the United States. (20) In 2005, the United States Census Bureau reported that there were 35.2 million, (21) over three and a half times the number in 1970. In 1970, 4.7% of the United States population was made up of immigrants; in 2005, that percentage rose to 12.1%. (22) Of the 35.2 million immigrants residing in the United States in 2005, approximately 9.6 to 9.8 million were estimated to be undocumented. (23) More than half of all immigrants in the United States are from Latin America, and just over a third are from Central America, including Mexico. (24) California, Texas, Arizona, Illinois, New York City, and Florida have the highest numbers of immigrants. (25)

   Nearly one quarter of those living in poverty in the United States are immigrants and their children. (26) One third of immigrants do not have health insurance (compared to only 13% of native-born Americans), (27) and approximately 65% of undocumented immigrants lack health insurance. (28) One study found that annual per capita expenses for health care were 86% lower for uninsured immigrant children than for uninsured U.S.-born children--but emergency department expenditures were more than three times as high. (29) Whether or not they have health insurance, immigrants overall have much lower per capita health care expenditures than native-born Americans, (30) and recent analyses indicate that they contribute more to the economy in taxes than they receive in public benefits. (31) In a study from the RAND Corporation, researchers estimated that undocumented adult immigrants account for only about 1.5% of U.S. medical costs. (32) Many immigrants do not seek medical treatment unless they are injured or acutely ill. It is amidst this context that the issue of medical repatriations arises.

   As noted above, "medical repatriations" are private transfers of patients from hospitals in the United States to health care facilities in other countries. These transfers do not occur with the involvement or oversight of the federal government, which has exclusive jurisdiction over immigration and deportation matters. (33) While most repatriations involve undocumented immigrants like Luis Jimenez, some involve immigrants who are legally present in the United States. For example, a nineteen-year-old farm worker named Antonio Torres was repatriated from a hospital in Phoenix to Mexico, despite his status as a lawful permanent resident. (34) He was uninsured, and the Phoenix hospital was unwilling to cover the costs of his post-accident care, even though the hospital had determined that "there was no hope" for Torres. (35) Against the wishes of his parents, Torres, then comatose and connected to a ventilator with pneumonia and a very high white blood cell count, was transported to Mexico. After four days of receiving no attention in a Mexican emergency room, his parents were able to find a hospital in California that agreed to treat him. (36) They borrowed an ambulance and drove Torres back to the United States, where he arrived in septic shock with a raging infection. (37) Despite these setbacks, the hospital was able to save his life and he made a good recovery. (38) Others have been less fortunate.

   It is difficult to estimate the frequency with which these repatriations occur. However, it is apparent that they happen frequently enough to create a market for at least one company that specializes in repatriation services. MexCare, which advertises itself as "an alternative choice for care of the unfunded Latin American national," was founded in 2001. (39) The company contracts with hospitals to transfer stabilized individuals from the hospital to health care facilities outside of the United States, thus serving as a way to reduce costs for the hospital. (40)

   The Los Angeles Times told the story of one nineteen-year-old patient for whom a hospital had utilized MexCare's (then "Nextcare") services. (41) After a car accident, the patient arrived at the hospital's emergency room with a shattered leg and broken jaw. He was transferred to a hospital in Mexico. According to MexCare and the hospital, his transfer was voluntary, and the decision was unpressured. (42) According to the patient, he agreed to the transfer because he was hungry and was told that the hospital in Tijuana could take the wires out of his jaw. (43) Because of "poor communication and follow-up," however, the patient's gums were infected and grew over the wires in his mouth, ultimately causing him severe pain--and immense hunger. (44)

   Responding to criticism from the New York Times, MexCare's Web site emphasizes that it only transfers patients who have provided written consent, and claims that the transfers are beneficial both to the hospitals as well as the patients it serves. (45) When compared to repatriations that occur without a company such as MexCare, this may be true. Most hospitals conduct repatriations without oversight and without the guidance of established policies and procedures. (46) Setting aside the troubling issues that arise from implementing non-governmental deportations, MexCare at least attempts to provide a comparable level of health care for its clients. Though not always successful--as the story mentioned above demonstrates--MexCare claims that it abides by an individualized discharge plan, enrolls the patient in one of its partnering clinics, and makes an effort to...