WhiteCoat

ELRALA

constitution-gavel

WHEREFORE, there is a disparity in the ability of the citizens in this country to obtain legal representation, and

WHEREFORE, every citizen in this country has a right to legal representation, and

WHEREFORE, a federal law guaranteeing access to legal representation in this country will advance the legal interests of the underserved clients,

THEREFORE, BE IT RESOLVED THAT there shall be a new law enacted in this country titled “ELRALA” – the Emergency Legal Representation and Active Litigation Act.

The substance of this Act shall be as follows:

1. Any person that “comes to a law office” must receive a legal screening exam (“LSE”).
2. The LSE must be performed in a manner that is reasonably calculated to detect any emergency legal condition.
3. If an emergency legal condition is detected, the law office must stabilize that emergency legal condition within the best of its abilities. Such stabilizing measures shall include, but are not limited to:
a. Evaluation of the client’s complaint by a qualified legal provider
b. Retention of specific experts when the law office is unable to fully evaluate the validity of the client’s complaint
c. Initiation and maintenance of litigation until the client’s emergency legal condition has been stabilized
4. If the law office does not have the capability to stabilize the client’s emergency legal condition, the law office must make an “appropriate” transfer of the client to a law office that does have the capability to stabilize the client’s emergency legal condition.
5. Law offices providing specialized legal services shall not refuse to accept an appropriate transfer of a client who requires such specialized capabilities if the law office has the capacity to provide such services to the client.
6. The LSE must be carried out in an equal and nondiscriminatory fashion regardless of the client’s ability to pay.
7. Law offices must not engage in any actions that could delay the LSE, and may not inquire about a client’s ability to pay prior to providing the LSE.
8. Law offices may not request a “retainer” or any other form of advance payment prior to the stabilization of the client’s emergency legal condition.
9. Law offices shall assure that the legal care provided best meets the legal needs of the communities in which the law offices are located.
10. Legal specialists may arrange “coverage” for multiple law offices in smaller communities provided that the services best meet the legal needs for each community.
11. Law offices shall keep a “call roster” of attorneys specialized in each branch of law that will be available each day to provide specialty legal services to clients requiring such services.

Notes:
ELRALA shall only apply to “participating law offices”. A law office that uses any services provided in a court house shall be considered a “participating law office” for purposes of this Act.
A law office shall be considered to have fulfilled its duties under ELRALA once the client’s emergency legal condition has been stabilized.
For the purposes of this Act, the term “emergency legal condition” shall mean any condition or situation that presents a significant threat to any of a client’s legal rights.
For the purposes of this Act, the term “stabilization” shall mean that there is no longer a significant threat to a client’s legal rights.
Violations of ELRALA will result in a statutory fine of not more than $50,000 and, in repeated or flagrant cases, loss of license to practice law or loss of privilege to use the court system.

———————————————–

Hey – the Emergency Medical Treatment and Active Labor Act (“EMTALA”) has been such an overwhelming success in guaranteeing medical care for patients in this country, we really need to expand it so that every person in this country is guaranteed to receive other essential services.

Up next:

The Emergency Hunger Treatment and Active Thirst Act – “EHTATA” – requiring all restaurants or people owning a stove to provide emergency hunger treatment to anyone that comes to their abodes or places of business complaining of being hungry and/or thirsty.

The Emergency Shelter Provision and Active Housing Act – “ESPAHA” – requiring all hotels and homeowners to provide emergency shelter for anyone coming to their abodes or places of business complaining of not having a place to live.

Any I’m missing?

28 Responses to “ELRALA”

  1. ms4 says:

    The Emergency Garment Distribution and Active Clothing Act – “EGDACA” – requiring all retailers to provide emergency clothing to anyone coming to their abodes or places of business complaining of inadequate clothing.

  2. Matt says:

    I’ll take it if we can make as much as physicians on average!

  3. Steve says:

    Awesome. I use this type of example every time the “right” discussion comes up, and I try to explain that other people’s “right” are infringing on mine.

  4. paul says:

    brilliant.

    however, i have food and shelter and currently do not need a lawyer. i’d really like a plasma tv though, so i’d like to see EPTVAEA (emergency plasma tv and active entertainment act). woo-hoo!

    • Pink says:

      Well, then, we need an ETCEA (emergency transportation and Cadillac Escalade act). Or, I guess it could be a hybrid of some sort to save on fuel costs.

  5. IVF-MD says:

    I am grateful for the humor. As often it does, the humor drives home a valid point.

    Personally, I have yet to be mandated to perform any emergency inseminations yet, but I’m still anxiously watching the skies to see how the climate might change in this country.

  6. igloodoc says:

    When ELRALA is implemented we will need universal legal care, and loosen the bankruptcy laws. Nobody should lose their house and savings because of defensive legal practice.

  7. pedidoc says:

    Actually, since the Declaration of Independance guarantees me the right to pursue happiness, the Emergency Amusement Park -T-A-L-Act?

  8. Max Kennerly says:

    Good idea.

    Oh, do I also get to participate in Legacare, a taxpayer-funded entitlement program that compensates me for my time and costs on cases I don’t win?

    Since EMTALA is predicated on Medicare funding, obviously the same should be true for ELRALA…

    • WhiteCoat says:

      Sure.
      Legacare pays about 25% of the going rate for services you provide … but the good news is that Congress just voted that you’ll get a whole 1.1% raise for next year. Go put a down payment on a new yacht.
      If you’re lucky enough to get a client with Legacaid, you’ll get 10% of the going rate for your services and you’ll have to wait 180 days to get paid. But money’s money, right?
      Oh yeah, and you’ll get a groundswell of new clients because of the economy and you’ll be required to provide timely stabilizing legal services to all of them … before any talk about their insurance.
      AND … malpractice insurance just quadrupled for you. That has to get paid out of your pocket so you don’t lose your lifesavings for failing to catch the problem in the client’s estate planning when they came to you for a problem about family law.
      That ought to put us on an even playing field now.
      Have at it.

      • Max Kennerly says:

        Your whole premise is wrong – EMTALA doesn’t apply at all unless “the hospital determines that the individual has an emergency medical condition.”

        To give an example, if a patient with a history of heart attacks comes in with severe left arm and chest pain and severe difficulty breathing, and the ER doctor misdiagnoses this as indigestion, there’s no EMTALA liability as a matter of law since the hospital did not “determine that the individual [had] an emergency medical condition,” and so the hospital had no duty to stabilize and/or transfer the patient.

        Keep in mind also that it wasn’t until 1999 that the Supreme Court ruled that a improper motive wasn’t required under EMTALA, merely a failure to stabilize a known emergency. Prior to that, most courts held that a plaintiff had to prove some sort of malicious intent by the physician, which is essentially impossible.

        Go ask your risk manager how many EMTALA claims they’ve actually paid out on. Most places, the number is “zero,” with maybe a handful of mixed medmal / EMTALA claims (keep in mind the EMTALA claim usually relies on there NOT being malpractice). Other places, the facts are utterly appalling, people being told they’re stupid and need to get out as they convulse on the floor.

        So participation in “Legacare” on those terms would definitely be worth it for some attorneys, particularly the referral firms with substantial intake resources. Only thing they have to do is, if they recognize an emergency, to act on it.

        You might not realize that such a service is performed by pro bono and public interest lawyers throughout the country, many of whom get calls from, e.g., a person who was sued two weeks ago and has just gotten notice of a default judgment, requiring immediate action. (I just got back from the hearing on a pro bono matter where exactly that happened, and the public interest attorneys were able to get in touch with me immediately, after which I entered my appearanced and filed a response.)

        You might not also realize that these public attorneys are funded largely by the private bar, with government “funding” of a laughable level, usually paying attorneys effective rates below $10/hour, with no reimbursement for overhead or costs.

        Of course, if it’s not worth it, others can choose to close their “emergency representation” service entirely.

        The rest of it seems tricky, so I have a great idea: lobby heavily in favor of the Republican Party and viciously attack any reform proposals. That’ll do the trick.

        Frankly, I don’t see how I’m suppose to sympathize for the plight of an industry that has fought bitterly to preserve the status quo. If doctors redirected 1/10th of their anti-patient efforts at insurance companies and entitlement program reform, they’d have nothing to complain about.

    • WhiteCoat says:

      “EMTALA doesn’t apply at all unless ‘the hospital determines that the individual has an emergency medical condition.’”

      Want to try again?

      § 1395dd. Examination and treatment for emergency medical conditions and women in labor
      (a) Medical screening requirement
      In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

      Screening examination for your chest pain patient will likely involve an overnight stay and a stress test at a minimum. May also involve CT scans to rule out dissections and/or PEs, stress echo, V/Q scans or who knows what else.
      So before you even get to the treatment required for any emergency medical condition, you’ve spent thousands just to *screen* one patient for the EMC. Multiply that times hundreds or thousands of patients in a year.

      The reason that so few EMTALA claims are paid out upon is because the stakes are so high. Failure to comply can mean that hospitals are barred from federal funding which is essentially a death knell for the hospital.

      The fact that you take one pro bono case does not mean that every attorney in the US does the same. I’ve read enough articles about how there aren’t enough public defenders in the US because the pay is so low.

      The average emergency physician provides $138,000 in charity care each year. How much charity care does the average lawyer provide?

      • Max Kennerly says:

        Nope, you’ve confused two separate issues.

        The “screening” provision doesn’t require an ER doctor do anything even remotely close to the standard of care. It simply requires the ER “appropriately screen” all patients roughly the same, regardless of personal characteristics, like race, sex or insurance status. If the hospital has come anywhere near its normal ‘screening’ procedures — often something as simple as entering the patient into triage — then there’s no liability as a matter of law.

        Indeed, a number of courts to this day still require a plaintiff show an “improper motive” behind the ER’s decision not to screen or to screen improperly, which means you basically need a doctor writing “no insurance — kick out!” on the chart. As such, screening claims are incredibly rare, save for extreme circumstances where a patient is refused care entirely for some wrongful reason, like a racial stereotype.

        So try Mr. Chest Pain again. The moment you put him into triage, he probably lost his “screening” claim, long before any admission, CT, and whatnot.

        You also wrote, “The reason that so few EMTALA claims are paid out upon is because the stakes are so high.” I think you misunderstood what I wrote. I include both verdicts and settlements in “paid out.” There aren’t many. I’d be surprised if there were more than 100 successful EMTALA claims nationwide in a given year.

        EMTALA just isn’t the boogeyman it’s made out to be; if a hospital goes so far as create and follow basic checklists for screening, transfer and discharge, it’ll avoid liability.

        As for charity care… do you really want to enter that debate with a contingent-fee plaintiffs’ lawyer? By the time we get to a medmal trial, you can be assured we’ve put down over $30,000 in costs in the most basic case, plus well over $50,000 in hourly fees. Adding any complexity to the case easily doubles those numbers, and plenty of medmal cases have over $250,000 in costs alone before ever going to trial.

        And that’s for each case, with no guarantee of recovery, and 2 in 3 odds of the jury rejecting the claim, not including odds of the court rejecting the claim. We’re also not including costs like the in-house nurses and outside experts I have to pay to ‘screen’ every case before I even decide to take it.

      • WhiteCoat says:

        The “screening” provision doesn’t require an ER doctor do anything even remotely close to the standard of care.” … It simply requires the ER “appropriately screen” all patients roughly the same

        Convenient that you don’t define what an “appropriate screen” is. The courts don’t either. That’s why defensive medicine is so prevalent.

        Indeed, a number of courts to this day still require a plaintiff show an “improper motive” behind the ER’s decision not to screen or to screen improperly.

        Maybe you should review the 1999 US Supreme Court decision in Roberts v. Galen of Virginia, Inc., 119 S. Ct. 685. Here’s the link.

        So try Mr. Chest Pain again. The moment you put him into triage, he probably lost his “screening” claim, long before any admission, CT, and whatnot.

        I’m not trying to be disrespectful or attack you personally when I say this, but you’re way wrong. The intent behind the law is to determine whether an emergency medical condition exists. You’re saying that we can just eyeball someone in triage with crushing chest pain to fulfill the EMTALA requirements, then do a wallet biopsy and “kick out” those who don’t “look sick”? Even if we do an EKG, up to 50% of EKGs are nondiagnostic in acute MIs. An EKG isn’t sufficient to identify just one emergency medical condition – an MI. What about all the other potential emergency conditions that, according to your previous comments in the defensive medicine post, must be “ruled out”? After all, physicians have to “eliminat[e] the most serious and unlikely diagnoses first … before continuing their basic evaluation, right?”
        I would enjoy watching you try to argue your version of a MSE in federal court.

        As for charity care … do you really want to enter that debate with a contingent-fee plaintiffs’ lawyer? By the time we get to a medmal trial, you can be assured we’ve put down over $30,000 in costs in the most basic case, plus well over $50,000 in hourly fees.

        Hmmm …
        Lawyers spend $30,000 on a cherry-picked case with a 1 in 3 chance of turning a several hundred thousand to multi-million dollar profit. They routinely “kick out” legitimate cases where patients have been harmed by a physician’s negligence because there isn’t enough profit potential and have no further duty to the clients whatsoever – “justice” be damned. Then they preach how doctors don’t do enough to protect the 98,000 deaths out of more than 1 billion patient interactions every year in the US (amounting a death in less than one in 10,000 patient interactions) that are allegedly due to medical negligence. Wouldn’t it be interesting if lawyers were chided for losing 1 in 10,000 cases?
        On the other hand, emergency physicians and hospitals are mandated by federal law to evaluate *every* patient seeking care and to provide stabilizing treatment to *every* patient with an emergency medical condition. If we even mention that we need money to stay afloat and to keep providing those services, certain groups brand us as greedy. So hospitals close down, services are curtailed, and more bad outcomes occur. But contingent-fee plaintiffs’ lawyers don’t push to change the system *too* much, because without those bad outcomes contingent-fee plaintiffs’ lawyers would be out of business (i.e. read about Texas contingent-fee plaintiffs’ lawyers and tort reform)

        Yeah. I’ll take that argument any day.

      • Max Kennerly says:

        You’re confusing multiple issues at once.

        There are three claims under EMTALA: screening, stabilizing and transfer.

        You quoted Roberts. Roberts is a transfer case; the patient had been in the hospital for several weeks in an unstable state when they transferred her anyway. During and immediately after the transfer her health declined dramatically. The claim was that the hospital did not appropriately evaluate the merits/risks of a transfer.

        Roberts itself references Cleland, a 6th circuit case establishing the “improper motive” requirement for screening cases. Roberts didn’t comment on or overrule Cleland. (Look at paragraphs 19 and 20 of the link you provided to Roberts.) That’s why a number of courts still follow the “improper motive” requirement for screening cases, cases where a hospital completely fails to evaluate a patient at all.

        I did define “appropriate” — the hospital just needs to follow its own ER protocols for everyone, regardless of non-medical issues like insurance status. Case law in many places defines “appropriate” downward even further, saying a screening was “appropriate” so long as not colored by an “improper motive.”

        None of the above has anything to do with meeting or breaching the standard of care. EMTALA’s requirements are very, very basic and very, very minimal. If you open up an ER and take Medicare funds, you have to ‘screen’ everyone there the same, and ‘stabilize’ them if they have an emergent condition. If you want to transfer them before they are stabilized, you have to evaluate the benefits/drawbacks of such transfer.

        What happens if you ‘screen’ someone, completely miss their emergent condition, send them home, and they die? No EMTALA claim.

        What happens if you see an emergent condition, admit them, think you stabilized it, discharge them, and they die? No EMTALA claim.

        What’s wrong with those requirements? Do you think ERs should be able to pick and choose patients or to refuse them without insurance coverage?

        And what’s really the drawback? Who here, at EPMonthly, has ever faced down an EMTALA claim? What did the plaintiff allege? Did they survive summary judgment?

        My defensive medicine / differential diagnosis related to the standard of care, a standard established wholly by physicians themselves. The “1 in 10,000″ number is meaningless, it’s like saying that, because planes usually don’t crash, they never crash. Physicians are liable when they cause harm by breaching the standard of care (the one they set), like this bozo ( http://is.gd/jd8A ), who prompted 124 malpractice claims, settled for $100 million.

        But it comes back to a point I raised in your defense medicine post: what should be expected of ER doctors? As far as I can tell you’re annoyed that you have to evaluate and treat the patients that come to an ER.

        You chose to enter a frontline, emergency setting, one that receives substantial taxpayer support. One that others have proposed making into a quasi-public utility with clear lines of funding, a proposal vehemently opposed by the insurance companies, hospitals and doctors.

        How much should an ER get? How much should an ER doctor make? These are questions I’m unqualified to answer — but like I said before, it’s really hard to sympathize with an industry that fights bitterly to preserve the status quo. Can’t be that bad if you’re not up for any major changes.

        All I hear is, “don’t change anything except to give us more money and relieve us from the responsibility to treat people fairly and appropriately.”

        What would you change?

  9. Chuck says:

    WHEREFORE, every citizen in this country has a right to legal representation, and

    Interesting that you left a gaping hole there. You mention nothing about “competent” legal representation.

  10. [...] EMTALA law obliges hospital ERs to treat many patients. OK, so how about ELRALA next, for lawyers? [White Coat Rants] [...]

  11. Dave says:

    uhmmm… Lawyers do represent people who can’t pay all the time… we’re called public defenders, we’re overworked and underpaid but do our jobs with pride and a high level of compentancy… jackass.

    • WhiteCoat says:

      Overworked? I’ll give you that. Underpaid? I’ll give you that one, too. Don’t forget that you’re guaranteed a salary from taxes everyone pays – unlike almost all emergency physicians.

      I consider the public defender’s office like an internship and residency for physicians. Physicians work 80-120 hours per week and get paid less than minimum wage while in their residency training. For most public defenders, their job is a springboard to the big criminal defense work, and you know it. Here’s one article from Kentucky stating that more than half of Kentucky’s public defenders have been with the state system less than three years (less than most medical residency programs).

      Give me some other examples about how bad you have it.

      Oh, yeah. I forgot.

      Public defenders take every single client with a legal problem and work their cases up to the hilt for free. What was I thinking?
      If emergency physicians acted like public defenders, they would only treat heart attacks, strokes, and major traumas, telling everyone else “Sorry, you’ll have to go ‘retain’ someone to represent take care of you.

      It also appears that there is some disagreement about the level of “competancy” [sic] with which public defenders perform their work:

      Court appointed attorneys are doom for poor defendants. They are so notorious for slacking that they are usually and rightfully called “Public Pretenders”. I’ve watched them come into the courtrooms staggering under piles of files they haven’t read until they can quickly peruse them while standing at the bar with a defendant they have barely spoken to and whom they are most likely urging to take a guilty plea just to get the case off the books.

      Pride seems to be out the window, too:

      The bad news started last year, when a group of private lawyers who contract with Cowlitz County to represent low-income defendants announced that they were ready to quit.
      “It’s a lot of work. It’s a lot of stress. And it doesn’t pay enough,” one of them told Stephen Warning, a Cowlitz County Superior Court judge. “Come Jan. 1, I’m the heck out the door.”
      Warning said he “begged and pleaded for them to stick around a little longer,” but it didn’t work.
      Of the 12 contract public defenders, five quit their contracts last year.

      I also read about how Texas Florida can’t find enough public defenders to represent all the indigent capital murder defendants. Lot of “pride” flowing around Florida courtrooms for sure.

      You personally seem quite overworked – so bad that you’re checking blogs on the internet during time when you should be representing your clients – or do you have Thursdays off?

      Oh, and you forgot to mention professionalism. You use a potty mouth in court and call the district attorneys names, too?

  12. Matt says:

    “Don’t forget that you’re guaranteed a salary from taxes everyone pays – unlike almost all emergency physicians.”

    You don’t have a contract? How many ED physicians have had a hospital go under on them and not been paid according to their contract? And don’t those hospitals receive revenue from the taxpayers courtesy of Medicare/Medicaid?

    ” For most public defenders, their job is a springboard to the big criminal defense work, and you know it.”

    Once again you’re opining on things you know little of. The percentage of criminals who can actually afford to the “big criminal defense lawyers” is exceedingly small compared to the number of public defenders out there. Most go into other areas of law, or just do a little criminal defense as part of a broader practice.

    Are you really using a few articles you read about a small percentage of the public defenders nationwide to impugn the whole group? Do you really believe there are no articles out there about crappy ED physicians? Would it be right to paint you with their brush?

    And can’t your overworked complaint be applied to you as well? Or are you a full time “journalist” these days?

    Glass houses and all.

    • WhiteCoat says:

      Matt, once again your comments show your utter lack of understanding about how medicine works.

      While some physicians have contracts with hospitals, most emergency physician groups bill on their own for the services they perform. Doesn’t mean that the bills are paid (see, e.g., California State), but in most cases, emergency physicians aren’t paid by the hospitals.

      How many ED physicians haven’t been paid according to their contract? Many. Research PhyAmerica bankruptcy for one. I’m through doing your homework for you.

      You’re right about criminal law. My mistake. Heck, hardly anyone is charged with crimes any more and once Johnnie Cochran died, the only criminal lawyer left in this country is Mark Geragos.

      The few articles I posted are better than the “zero” articles and the baseless claims that you repeatedly post. I was merely posting a few articles to counter the claims that each public defender in this country should be considered for sainthood.

      Your lack of knowledge also goes to ED scheduling. Emergency medicine is a 24/7 job, meaning that I work odd hours (or overnights) on some days, but then on on days I have the traditional public defender’s hours off. What’s *your* excuse?

  13. DaveyNC says:

    Love it! I demand my right to free legal assistance! I’ll need a lawyer soon for a couple of things and I want that free lawyer! And a paralegal and a judge and a law clerk! Gimme two law clerks!

    And when I get a parking ticket? I expect to be able to walk in to the nearest legal office and demand someone handle it for me with no co-pays or deductibles! Because it’s gonna be free!

    Hell, I’m gonna go break me some laws!

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