Thursday, April 25, 2013

Unconstitutional Medical Repatriation

Guest blogger: Emily Orloff, second-year law student, University of San Francisco

Unconstitutional Medical Repatriation: How U.S. Hospitals Are Secretly Deporting Critically Ill Immigrants

Most Americans have never heard of medical repatriation, a practice by which U.S. hospitals deport critically ill or injured immigrant patients to medical facilities in their home country. These deportations are often carried out without the consent or knowledge of the courts, and via the use of private planes and ambulances that carry the sick, who are often unable to object.

A recently released report conducted by the Center for Social Justice at Seton Hall Law School and New York Lawyers for the Public Interest reveals that over 800 cases of successful or attempted medical repatriation have occurred across the United States over the past six years. The afflicted patients range in age and nationality. Many receive their injuries on the job, working for American employers and clients, like Quelino Ojeda Jimenez, an immigrant from Mexico. Jimenez, who traveled to the United States as a teenager in the hopes of finding work to support his family, fell over 20 feet and awoke at a hospital on a ventilator. After 16 weeks, the hospital removed Jimenez from the ventilator. Unable to speak, he could do no more than cry as he was transported to a gurney, then to an impoverished hospital in Mexico, where he would languish for a year before his death.

Why is this happening? Two reasons. First: hospitals are only required to care for the ill until they are “stabilized”, a term which U.S. courts have held is not equivalent to “stable condition.” That means a person who requires critical ongoing care may be considered “stabilized,” thus concluding the duty of care owed by the hospital. To fully understand the distinction, consider the story of Marlene, a 19-year-old Arizona teenager who once dreamed of becoming a police officer. Two months before her high school graduation, Marlene was shot by a family member and rushed to a hospital. Marlene was stabilized, but soon developed a fever, severe intestinal infection, and pneumonia. Although her family begged the hospital to delay the transfer so that Marlene could get a “U-Visa” (which provides legal status for victims of serious crimes), the hospital maintained that she was stable to travel. Wheeling her through a back entrance normally reserved for garbage removal, Marlene left early in the morning and arrived at a Mexican hospital before supper time. She died the next morning, after being diagnosed with septicemia, pneumonia, and meningitis.

On top of this, most immigrants cannot afford private health insurance and are ineligible to receive benefits, making them less-than-desirable patients for funding-strapped hospitals. Immigrant patients who lack lawful status or have been a legal permanent resident (LPR) for fewer than five years are not eligible for federal healthcare benefits. Combine this denial of assistance with exploitative employers, low wages, and physically demanding jobs, and you have a recipe for disaster.
The Fifth and Fourteenth Amendments of the Constitution protect all persons from being deprived of life, liberty, and due process of law; our Supreme Court has long held that unlawful immigrants are persons. Additionally, the power to deport immigrants rests in the hands of the federal government, not the states and certainly not local hospital staff. With the standard procedure for deportation known as an order of removal, immigrants retain the right to appeal to the courts. With medical repatriation, patients have no recourse. People like Jimenez and Marlene have no power and no voice in their own destinies.

How can we stop hospitals from illegal, unconstitutional deportations? The first step is to ask Congress to enact laws punishing hospitals that practice medical repatriation. Without harsh penalties in place, hospitals may not be incentivized to halt the practice or at the minimum, ensure that patients are truly stabilized before transporting people in dangerous conditions. We must spread the word among local politicians, and ask hospitals to train staff in the intricacies of working with immigrant populations. The removal of bars to Medicaid would encourage hospitals to improve the standard of care given to the undocumented.

One of the most recent victims of medical repatriation was a two-day-old U.S. citizen named Elliot. After two weeks in the neonatal intensive care unit, hospital authorities informed Elliot’s mother that he would be transferred to a hospital in Hermosillo, Mexico. A local lawyer, thinking quickly, had Elliot’s mother transfer custody of him; he then called 9-1-1 and informed police that a kidnapping was taking place. Then he called the hospital and told them his consent would be required to transfer Elliot. The police arrived at the airport just in time to stop the flight.

Elliot’s story has a happy ending—as a U.S. citizen, he was approved for Medicaid. Due to a compassionate lawyer, his family remained together. Perhaps, by asking our local senators, Congress, and state officials to hold hospitals to a higher standard, we can save lives and stop this illegal practice.


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