Immigrants Deported, by U.S. Hospitals NYTimes

• Next message: Abdominal CT for Trauma
• Messages sorted by: [ date ] [ thread ] [ subject ] [ author ]

Immigrants Deported, by U.S. Hospitals
By DEBORAH SONTAG

JOLOMCÚ, Guatemala — High in the hills of Guatemala, shut inside the
one-room house where he spends day and night on a twin bed beneath a
seriously outdated calendar, Luis Alberto Jiménez has no idea of the legal
battle that swirls around him in the lowlands of Florida.

Shooing away flies and beaming at the tiny, toothless elderly mother who is
his sole caregiver, Mr. Jiménez, a knit cap pulled tightly on his head,
remains cheerily oblivious that he has come to represent the collision of
two deeply flawed American systems, immigration and health care.

Eight years ago, Mr. Jiménez, 35, an illegal immigrant working as a gardener
in Stuart, Fla., suffered devastating injuries in a car crash with a drunken
Floridian. A community hospital saved his life, twice, and, after failing to
find a rehabilitation center willing to accept an uninsured patient, kept
him as a ward for years at a cost of $1.5 million.

What happened next set the stage for a continuing legal battle with
nationwide repercussions: Mr. Jiménez was deported — not by the federal
government but by the hospital, Martin Memorial. After winning a state court
order that would later be declared invalid, Martin Memorial leased an air
ambulance for $30,000 and “forcibly returned him to his home country,” as
one hospital administrator described it.

Since being hoisted in his wheelchair up a steep slope to his remote home,
Mr. Jiménez, who sustained a severe traumatic brain injury, has received no
medical care or medication — just Alka-Seltzer and prayer, his 72-year-old
mother said. Over the last year, his condition has deteriorated with routine
violent seizures, each characterized by a fall, protracted convulsions, a
loud gurgling, the vomiting of blood and, finally, a collapse into
unconsciousness.

“Every time, he loses a little more of himself,” his mother, Petrona
Gervacio Gaspar, said in Kanjobal, the Indian dialect that she speaks with
an otherworldly squeak.

Mr. Jiménez’s benchmark case exposes a little-known but apparently
widespread practice. Many American hospitals are taking it upon themselves
to repatriate seriously injured or ill immigrants because they cannot find
nursing homes willing to accept them without insurance. Medicaid does not
cover long-term care for illegal immigrants, or for newly arrived legal
immigrants, creating a quandary for hospitals, which are obligated by
federal regulation to arrange post-hospital care for patients who need it.

American immigration authorities play no role in these private
repatriations, carried out by ambulance, air ambulance and commercial plane.
Most hospitals say that they do not conduct cross-border transfers until
patients are medically stable and that they arrange to deliver them into a
physician’s care in their homeland. But the 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.

Indeed, some advocates for immigrants see these repatriations as a kind of
international patient dumping, with ambulances taking patients in the wrong
direction, away from first-world hospitals to less-adequate care, if any.

“Repatriation is pretty much a death sentence in some of these cases,” said
Dr. Steven Larson, an expert on migrant health and an emergency room
physician at the Hospital of the University of Pennsylvania. “I’ve seen
patients bundled onto the plane and out of the country, and once that person
is out of sight, he’s out of mind.”

Hospital administrators view these cases as costly, burdensome patient
transfers that force them to shoulder responsibility for the dysfunctional
immigration and health-care systems. In many cases, they say, the only
alternative to repatriations is keeping patients indefinitely in acute-care
hospitals.

“What that does for us, it puts a strain on our system, where we’re unable
to provide adequate care for our own citizens,” said Alan B. Kelly, vice
president of Scottsdale Healthcare in Arizona. “A full bed is a full bed.”

Medical repatriations are happening with varying frequency, and varying
degrees of patient consent, from state to state and hospital to hospital. No
government agency or advocacy group keeps track of these cases, and it is
difficult to quantify them.

A few hospitals and consulates offered statistics that provide snapshots of
the phenomenon: some 96 immigrants a year repatriated by St. Joseph’s
Hospital in Phoenix; 6 to 8 patients a year flown to their homelands from
Broward General Medical Center in Fort Lauderdale, Fla.; 10 returned to
Honduras from Chicago hospitals since early 2007; some 87 medical cases
involving Mexican immigrants — and 265 involving people injured crossing the
border — handled by the Mexican consulate in San Diego last year, most but
not all of which ended in repatriation.

Over all, there is enough traffic to sustain at least one repatriation
company, founded six years ago to service this niche — MexCare, based in
California but operating nationwide with a “network of 28 hospitals and
treatment centers” in Latin America. It bills itself as “an alternative
choice for the care of the unfunded Latin American nationals,” promising
“significant saving to U.S. hospitals” seeking “to alleviate the financial
burden of unpaid services.”

Many hospitals engage in repatriations of seriously injured and ill
immigrants only as a last resort. “We’ve done flights to Lithuania, Poland,
Honduras, Guatemala and Mexico,” said Cara Pacione, director of social work
at Mount Sinai Hospital in Chicago. “But out of about a dozen cases a year,
we probably fly only a couple back.”

Other hospitals are more aggressive, routinely sending uninsured immigrants,
both legal and illegal, back to their homelands. One Tucson hospital even
tried to fly an American citizen, a sick baby whose parents were illegal
immigrants, to Mexico last year; the police, summoned by a lawyer to the
airport, blocked the flight. “It was horrendous,” the mother said.

Sister Margaret McBride, vice president for mission services at St. Joseph’s
in Phoenix, which is part of Catholic Healthcare West, said families were
rarely happy about the hospital’s decision to repatriate their relatives.
But, she added, “We don’t require consent from the family.”

In a case this spring that outraged Phoenix’s Hispanic community, St.
Joseph’s planned to send a comatose, uninsured legal immigrant back to
Honduras, until community leaders got lawyers involved. While they were
negotiating with the hospital, the patient, Sonia del Cid Iscoa, 34, who has
been in the United States for half her life and has seven American-born
children, came out of her coma. She is now back in her Phoenix home.

“I can think of three different scenarios that would have led to a fatal
outcome if they had moved her,” John M. Curtin, her lawyer, said. “The good
outcome today is due to the treatment that the hospital provided —
reluctantly, and, sadly enough, only in response to legal and public
pressure.”

Unlike Ms. Iscoa and Mr. Jiménez, most uninsured immigrant patients in
repatriation cases do not have advocates fighting for them, and they are
quietly returned to their home countries. Sometimes, their families accept
that fate because they are told they have no options; sometimes they are
grateful to the hospital for paying their fare home, given that other
hospitals leave it to relatives or consulates to assume responsibility for
the patients.

Mr. Jiménez’s case is apparently the first to test the legality of
cross-border patient transfers that are undertaken without the consent of
the patients or their guardians — and the liability of the hospitals who
undertake them.

“We’re the rhesus monkey on this issue,” said Scott Samples, a spokesman for
Martin Memorial.

A Life-Changing Accident

Mr. Jiménez’s journey north was propelled by the usual migrant’s dreams.
When he pledged thousands of dollars to pay the smuggler who delivered him
to the United States, he envisioned years of labor on the lawns of affluent
America and then a payoff: the means to buy land of his own, to cultivate
his own garden, back in Guatemala.

But fate — in the person of Donald Flewellen, a pipe welder with a drug
problem and a long criminal record — intervened. At lunchtime on Feb. 28,
2000, Mr. Flewellen was loitering in the parking lot of a Publix supermarket
in Palm Beach Gardens, Fla., when the employees of an irrigation company ran
inside, leaving the keys in their van. Seizing the moment, Mr. Flewellen, a
thorn in the side of local prosecutors with at least 14 arrests, jumped into
the van and drove off.

In the next few hours, Mr. Flewellen consumed enough alcohol to produce a
blood-alcohol level four times higher than the legal limit. But drive he
did, along the back roads that connect the affluent Treasure Coast to the
agricultural interior where Guatemalan Mayan immigrants have settled in a
place, coincidentally, called Indiantown.

About 4 p.m., Mr. Flewellen was heading east on a rural road just as Mr.
Jiménez and three compatriots were returning home from a day of landscaping.
His stolen van and their 1988 Chevrolet Beretta crashed head-on, instantly
killing two of the Guatemalans and severely injuring the driver and Mr.
Jiménez, a back-seat passenger.

Identified first as John Doe, Mr. Jiménez arrived by ambulance at Martin
Memorial, a not-for-profit hospital on the banks of the St. Lucie River in
Stuart. He was unconscious and in shock from extensive bleeding, with two
broken thigh bones, a broken arm, multiple internal injuries, a terribly
lacerated face and a severe head injury. A doctor noted his prognosis as
“poor.”

But Mr. Jiménez, after intensive surgical and medical intervention,
survived. “He was no longer Luis; he was another person,” Montejo Gaspar
Montejo, his cousin by marriage, said, describing a previously husky and
industrious laborer who was also a soccer enthusiast. “He didn’t talk. He
didn’t understand anything. He stayed curled up in a ball. But he was
alive.”

During that time, Martin Memorial asked Michael R. Banks, a local lawyer who
specializes in estate planning, to set up a guardianship for Mr. Jiménez. “I
said, ‘Sure, what can come of such a case?’ ” Mr. Banks said. “Then it took
on a life of its own. They probably regret they ever called me.”

Mr. Jiménez, whose common-law wife and two children remained in Guatemala,
had been living for just under a year with Mr. Gaspar’s family. Mr. Gaspar,
who works in golf-course maintenance, agreed to serve as guardian.

At first, things were amicable. In the summer of 2000, Mr. Jiménez was
transferred to a nursing home in Stuart, which may have accepted him because
an insurance payout was possible.

Mr. Flewellen, who eventually pleaded guilty to D.U.I. manslaughter, D.U.I.
injury and grand theft auto, was not insured. But the Guatemalan families
sought to hold the irrigation company liable since its employees left the
keys in the car. Their lawsuit ultimately failed.

In the nursing home, Mr. Jiménez began wasting away. His relatives grew
anxious. Then, Robert L. Lord Jr., Martin Memorial’s vice president of legal
services, said, “Mr. Jiménez was put back on our doorstep.”

He arrived by ambulance, this time emaciated and suffering from ulcerous bed
sores so deep that the tendons behind his knees were exposed. With infection
raging, “the question to be answered is if the patient’s condition is
terminal,” a doctor wrote in his file.

Again, Martin Memorial’s doctors provided life-saving care. Hospitals are
mandated to treat and stabilize anyone suffering from an emergency medical
condition, and the federal government does provide emergency Medicaid
coverage for illegal and new immigrants.

But hospitals say that emergency Medicaid covers only a small fraction of
those expenses: $80,000 in Mr. Jiménez’s case, according to court papers.

Mr. Jiménez remained in a vegetative state, coiled in a fetal position, for
“one year, two months and 15 days,” Mr. Gaspar said with precision.

Stunning his relatives and medical officials, though, Mr. Jiménez gradually
woke up and started interacting with the world. “One day,” Mr. Gaspar said
in Spanish, “we arrived for a visit, and he said to me, ‘You are Montejo.’ ”

Not long afterward, the battle began between Martin Memorial and Mr. Gaspar,
a reserved man whose Indiantown living room is decorated with a “We Love
America” clock, a beach towel from the ancient city of Tikal and a hammered
metal image of the Virgin Mary.

A Hospital’s Dilemma

The average stay at Martin Memorial, a relatively tranquil hospital which
features a palm frond design in its gleaming lobby floor and white-coiffed
volunteers in its gift shop, is 4.1 days and costs $8,188. Patients rarely
linger.

Those like Mr. Jiménez who outstay their welcome are an oddity but not an
anomaly. Mr. Jiménez had a roommate from Jamaica, a diabetic who lost both
legs. Martin Memorial eventually flew him back to his native country, too.

In addition to trauma patients, there are uninsured immigrants with serious
health problems. “In our emergency room, we don’t turn anyone away,” said
Carol Plato Nicosia, the director of corporate business services. “The real
problem is if we find an underlying problem, and now we have six of them —
six patients who showed up in renal failure and that we are now seeing three
times a week for dialysis.”

One of the six, she said, voluntarily returned to Guatemala after receiving
a poor prognosis. But she showed up at Martin Memorial again after her
relatives insisted that she undertake the trek over the borders a second
time because she could not get treatment in Guatemala, Ms. Plato Nicosia
said.

“I don’t want to sound heartless,” Ms. Plato Nicosia said. “A community
hospital is going to give care. But is it the right thing? We have a lot of
American citizens who need our help. We only make about 3 percent over our
bottom line if we’re lucky. We need to make capital improvements and do
things for our community.”

Martin Memorial reported a total margin of 3.6 percent over its bottom line
last year and 6 percent in 2006. According to the most recent statewide
data, the nonprofit medical center also reported assets of $270.6 million in
2006, with its senior executives earning more than $4 million in salaries
and benefits.

Tax-exempt hospitals are expected to dedicate an unspecified part of their
services to charity cases, and Martin Memorial devoted $23.9 million in
2006, about 3 percent, which was average for Florida, according to state
data.

Mr. Jiménez was a very expensive charity case. In cases like his, where
patients need long-term care, hospitals are not allowed to discharge them to
the streets. Federal regulations require them — if they receive Medicare
payments, and most hospitals do — to transfer or refer patients to
“appropriate” post-hospital care.

But in most states, the government does not finance post-hospital care for
illegal immigrants, for temporary legal immigrants or for legal residents
with less than five years in the United States. (California and New York
City are notable exceptions; Medi-Cal, the state’s Medicaid program, spends
$20 million a year on long-term care for illegal immigrants, as does the
Health and Hospitals Corporation of New York City.)

Martin Memorial’s lawyer, Mr. Lord, said hospitals should not be forced to
assume financial and legal responsibility for these cases. “It should be a
governmental burden,” he said, “or the government should step in and
otherwise exercise its authority for deportation or whatever it wants to
do.”

In Mr. Jiménez’s case, the hospital’s doctors determined that appropriate
post-hospital care meant traumatic brain injury rehabilitation. Much to the
surprise of the hospital staff, Mr. Jiménez had regained cognitive function
to about the level of a fourth-grade child.

Hospital discharge planners searched to no avail for a rehabilitation
program or nursing home. “Unable to take patient” was the response to many
queries, as noted in Mr. Jiménez’s files, which also state: “At this time,
patient remains a disposition problem.”

Representing Mr. Jiménez’s guardian, Mr. Banks took the position that the
hospital had a responsibility to provide Mr. Jiménez with the rehabilitation
he needed — even if it meant paying a rehabilitation center to provide it.
That, he noted, could have benefited both the hospital and the patient.

“It would have been more cost-effective for them,” Mr. Banks said, given
that daily patient costs in long-term care are far lower than in acute-care
hospitals. “And if the rehab worked, then Luis might have become a
functional person and nobody’s charge.”


But the hospital declined, as Mr. Lord put it, “to take out our checkbook”
and subsidize his care at another institution.

“Once you take that step, for how long are you going to do that — a year, 10
years, 50 years?” Mr. Lord, the lawyer, asked.

At that point, the hospital intensified its efforts to involve the
Guatemalan government in the case. In a memorandum obtained by The New York
Times, a consular official wrote that the hospital “informed us of how
expensive it was becoming to care for Luis given that there was no insurance
and that he is illegal and that the state won’t assume responsibility for
his charges.”

Eventually, the Guatemalan health minister wrote a letter assuring Martin
Memorial that his country was prepared to care for Mr. Jiménez. Gabriel
Orellana, who was foreign minister at the time but did not have direct
knowledge of the case, said the Guatemalan government was disposed to assist
an American institution. “If a hospital in Florida asks if we can take care
of a Guatemalan patient, the tendency is to say yes,” Mr. Orellana said.

Mr. Gaspar was dubious, believing the public health care system in his
homeland to be grossly inadequate.

So the guardian and the hospital reached an impasse, and Martin Memorial
finally took the matter to court, asking a state judge to compel Mr. Gaspar
to cooperate with its repatriation plan. In June 2003, a hearing was held
before Circuit Judge John E. Fennelly.

The Journey Home

In the courthouse in Stuart, a low-key, upscale town that boasts world-class
fishing, George F. Bovie III, a lawyer for Martin Memorial, addressed the
judge: “This case is not simply a case, as some would try and paint it, of
money. This is a case about care for a man in this country illegally who has
reached maximum medical improvement at our hospital and is ready to be
discharged and whose home government” is prepared to receive and treat him.

Mr. Banks responded: “Your honor, this is a case about a hospital that has
failed to do its job properly,” adding that the hospital sought to “have
this court legitimize its patient dumping.”

By the time of the hearing, Mr. Jiménez was essentially a boarder at the
hospital, wheeling around the hallways and hanging out at the nursing
stations. Diana Gregory, a nurse who supervises case management and
discharge planning, said in a recent interview that Mr. Jiménez — “I will
affectionately call him Louie” — became “like family” to hospital staff
members, who bought him birthday cakes, knitted him blankets and gave him
toys.

According to hospital records, however, it was not all pastries and
presents. Mr. Jiménez grew depressed as he gradually became more cognizant
of his situation. He showed signs of regression, too. Emotional and
behavioral volatility often follow serious head injuries, and Ms. Gregory
said that Mr. Jiménez had developed some disturbing habits, including
spitting, yelling out, kicking and defecating on the floor.

In court, his doctor, Walter Gil, testified that Mr. Jiménez would benefit
from returning to the intimacy of his family. In his case file, the doctor
had noted that Mr. Jiménez had told him, “Estoy triste,” meaning, “I’m sad.”

Dr. Gil said he asked Mr. Jiménez, “Why are you sad when you have basically
everything that could be offered to you?” And, he said, Mr. Jiménez replied,
“I miss my family and my wife.”

Mr. Banks’s witnesses challenged what they described as Guatemala’s vague
offer to care for Mr. Jiménez.

Dr. Miguel Garcés, a prominent Guatemalan physician and public health
advocate, said in a deposition that serious rehabilitation “is almost
nonexistent” in Guatemala outside private facilities. He predicted that Mr.
Jiménez would be taken in and then released from the country’s one public
rehabilitation hospital within a matter of weeks.

“I don’t want him to go home and die,” Dr. Garcés said.

“Nobody wants him to go home and die,” the hospital’s lawyer responded.

A few weeks later, Judge Fennelly ruled. “This Court,” he wrote, “sails on
uncharted seas.” He acknowledged that his decision might provoke dissent but
opined, “As Aquinas once stated, ‘The good is not the enemy of the perfect,’
” inverting and misattributing Voltaire’s famous quote, “The perfect is the
enemy of the good.”

And then he granted the hospital’s petition, ordering that Mr. Gaspar stop
“frustrating” the hospital’s plan to “relocate the ward” back to Guatemala.

Mr. Banks was stunned. He filed a notice of appeal and asked for a stay of
the court’s order while the appeal was pending. The judge asked the hospital
to file a response by 10 a.m. on July 10 before he ruled on the stay.

Four and a half hours before that response was due, shortly before daybreak
on July 10, 2003, an ambulance picked up Mr. Jiménez at the hospital and
drove him to the St. Lucie County airport, where an air ambulance waited to
transport him back to Guatemala. Mr. Gaspar was not apprised.

“We went to see him at the hospital, and his bed was empty,” he said.

The hospital’s lawyer declined to comment on why the hospital did not wait
for the judge to rule on the stay.

Diana Gregory, the nurse, traveled to Guatemala with Mr. Jiménez, bringing a
wheelchair, a week’s worth of medications, “lunch/snacks/juices/treats,” and
an emergency passport signed with a fingerprint, according to discharge
records. Mr. Jiménez wore a Florida Marlins cap and carried a toy cellphone.

During the flight, the records said, Mr. Jiménez dozed, paged through
picture books, pushed the window shade up and down and pointed outside,
saying, “Look, look!” When he arrived in Guatemala, an ambulance took him to
the National Hospital for Orthopedics and Rehabilitation, which occupies the
converted stables of an old villa in the historic center of the capital
city.

Ms. Gregory accompanied him there, turned over his records and toured the
hospital. In a recent interview, Ms. Gregory said she was impressed by the
place and especially by the staff’s pride in it, despite equipment that
looked “like it could have been donated to the Smithsonian.” She added,
“That facility could have taken care of me any day.”

While Ms. Gregory was taking her tour, Mr. Jiménez was holding court,
according to her notes in his file, “telling everyone that he was from
Miami, Florida, and showing them his toy cat.” At her request, a physician
told Mr. Jiménez in Spanish “that he would be staying with his new friends
in Guatemala and that I was leaving.” His response, according to her notes:
“O.K., O.K., adiós.”

Glad that she had helped reunite Mr. Jiménez with his homeland, she said, “I
left Guatemala quiet in my heart.”

Care in Guatemala

Immaculately clean but dilapidated, Guatemala’s National Hospital for
Orthopedics and Rehabilitation operates on a shoestring budget of
approximately $400,000 a year, according to Dr. Harold Von Ahn, who was
director when Mr. Jiménez arrived.

Half the hospital is devoted to orthopedic care and the other half serves as
an “asylum” for profoundly disabled Guatemalans. Although it is the only
public rehabilitation hospital in the country, it dedicates just 32 beds to
rehabilitation and does not offer the specialized brain injury treatment
that Mr. Jiménez needed.

The Guatemalan foreign ministry said that it knew of 53 repatriations by
American hospitals in the last five years. During a visit by The Times to
the National Hospital in June, the most recent arrival was an 18-year-old,
Diana Paola Miguel, transported there by the University Medical Center in
Tucson nine days after a van accident crushed her pelvis, which the Arizona
hospital repaired. Supine on a gurney, she Ms. Paola was too tremblingly
upset to talk.

Dr. Von Ahn said he believed that American hospitals were dumping patients
that should be their responsibility. “It’s the same as the classic fall on
the stairs, right?” he said. “You go to my home, you fall on my stairs and
then you sue me. I am responsible.”

Shortly after Mr. Jiménez arrived, the Guatemalan hospital contacted his
common-law wife, Fabiana Domingo Laureano, who lived in the city of Antigua
with their two young sons, and asked her to come get him. Ms. Domingo, who
was 27 at the time, was shocked to learn that her husband was back and
terrified by the request. Then as now, she was eking out a living, selling
traditional woven clothing in a marketplace while sharing a spare, concrete
room with her sons in her parents’ humble home.

“I was already living from hand to mouth,” she said in an interview in
Antigua, where her sons now supplement her income by selling cigarettes
after school. “How could I possibly have given him what he needs?”

The couple met as teenagers in the highland village of Soloma. In the
mid-1990s, Mr. Jiménez migrated with his wife’s family to Antigua, a
volcano-ringed colonial city where tourism sustains the local economy. While
she sold clothing, Mr. Jiménez worked as a bus driver’s assistant. Together,
they earned about $6 a day, which was not enough to support their family, so
Mr. Jiménez, with his wife’s brother, Francisco Gaspar, decided to follow a
well-traveled path to the north. That is when he changed his name from
Gervacio Gaspar to Luis Jiménez, which is how he is now known, even by his
family.

After pledging to pay a coyote, or smuggler, about $2,000 each to ferry them
into the United States, they crossed into California under cover of darkness
and made their way to Encinitas, where Mr. Jiménez’s older brother lived,
Mr. Gaspar said.

After the two men failed to find regular work, Mr. Gaspar began suffering
panic attacks and returned to Guatemala; Mr. Jiménez decided to try his luck
in Florida.

“Lamentably,” Mr. Gaspar said, “luck eluded him.”

After the hospital contacted Ms. Domingo, Telemundo, the Spanish-language
network, called Ms. Domingo and offered to take her to Guatemala City.
Shortly thereafter, the network showed her reunion with her husband.

“You are Maria by chance?” Mr. Jiménez said to his wife as the television
cameras rolled.

“Fabiana,” she replied. Their two sons stood by her side, wide-eyed.

A few weeks later, Dr. Von Ahn said, the hospital discharged Mr. Jiménez
“because we needed the bed,” transferring him to another public hospital,
San Juan de Dios. That is where Mr. Jiménez’s brother, Enrique Lucas
Gervacio, found him when he made his way down from the mountains by bus.

“He was lying in the hallway on a stretcher, covered in his own excrement,”
Mr. Lucas said. “So we cleaned him up and we brought him home.”

In Favor of Jiménez

In May, 2004, a Florida appeals court overruled Judge Fennelly.

The Fourth District Court of Appeal found that the Florida state judge had
overstepped his bounds because deportation is the prerogative of the federal
government. The court also declared that no evidence supported the
hospital’s assertion that Mr. Jiménez would receive appropriate care in
Guatemala; the discharge plan, the ruling said, was not detailed enough to
satisfy federal requirements or the hospital’s own rules.

The appeals court voided the judge’s order although, given that Mr. Jiménez
was already back in Guatemala, that action came too late for him.

It might affect others, though. The decision has become what is known
legally as a case of first impression on the issue of hospital
repatriations.

John DeLeon, a lawyer who advises the consulates of Mexico, Honduras and
Guatemala in Miami, said he now referred to it when he received calls from
hospitals looking to discharge seriously injured or ill immigrants.

“I now write I call my Montejo Gaspar letter,” he said. “It’s a letter that
says, ‘Listen, don’t take action to dump this individual because you’ll be
risking legal action. The law is now that hospitals can’t dump immigrant
patients without securing appropriate after-care. If somebody has a serious
illness and needs continuing care, a hospital can’t simply discharge them
onto the street, much less put them on a plane.’ ”

Mr. DeLeon said that he was “bombarded by such cases,” adding that he was
investigating another medical repatriation by Martin Memorial, which took
place two weeks ago “behind the back of the Mexican government.”

Martin Memorial confirmed that on July 16 they flew Neptali Díaz, a severely
brain-injured patient to Mexico. A court order authorized Mr. Diaz’s
transfer to an unspecified Mexican hospital, ending the man’s 859-day, $2
million stay at Martin Memorial.

After the ruling in Mr. Jiménez’s favor, Martin Memorial did not appeal. But
the case did not go away. The appeals court ruling set the stage for a
personal injury lawsuit, taken on by Searcy, Denney, Scarola, Barnhart &
Shipley in West Palm Beach.

With that established firm behind him, Mr. Gaspar initiated a false
imprisonment action claiming that his cousin was essentially kidnapped by
the hospital and smuggled out of the country in a kind of medical rendition.
Since then, appeals judges have again ruled in Mr. Jiménez’s favor, stating
the hospital can be sued for punitive damages as well as for the cost of his
medical care.

This infuriates Ms. Plato Nicosia, the hospital administrator, who said it
was Mr. Jiménez’s family who owes the hospital money and not vice versa.
“Should they win, we would like them to take those damages and pay his
hospital bill,” she said.

Jack Scarola, representing Mr. Jiménez’s guardian, said that he empathized
with the hospital’s “significant economic burden” but said that it was the
“quid pro quo” of accepting Medicare and Medicaid funds to help finance the
hospital’s services. (About 45 percent of Martin Memorial’s net operating
revenues came from Medicare and Medicaid last year, based on state data.)

“Also,” he continued, “they chose the wrong way to deal with it. The right
way would have been through the Legislature. There is no program in place to
appropriately distribute care to undocumented persons who are
catastrophically injured, and there should be. But you don’t stick a
brain-injured immigrant on a private plane and spirit him out of the country
in the predawn hours.”

Weighing Quality of Life

The journey to Jolomcú is an arduous one, as Mr. Jiménez’s new legal team
discovered when several members — a lawyer, a paralegal, a priest and a
bioethicist — first traveled there to meet him.

After a five-hour drive north from Guatemala City to Huehuetenango and then
a winding trip, filled with hairpin turns on cliff-hugging roads up and over
the Cuchumatán Mountains, they arrived at the provincial city of Soloma.

>From there, the road to Mr. Jiménez’s hamlet only goes so far, and the trip
must be completed on foot, up and down a rutted dirt path through
goat-strewn meadows. The Americans arrived at the top panting. There,
awaiting them, in an idyllically situated one-room brick house, was Mr.
Jiménez, a broad grin lighting up his face.

“The first striking thing was his disposition: He was very, very happy,”
said the Rev. Frank O’Loughlin, who pastored migrant workers in South
Florida for decades. “Then, the second thing, he was well cared for. What I
did was I got down over him and hugged him but also smelled. And there were
no bedsores. Nothing was malodorous.”

As they drove back to Huehuetenango, Marnie R. Poncy, a nurse-lawyer who
runs a bioethics law project in Palm Beach County, offered her view: “I
said, ‘His quality of life is better than it would be in an American nursing
home.’ ”

“But I hazarded a guess that his longevity of existence was probably
severely curtailed,” she said.

Still, the team reached a conclusion that surprised them: “There was no real
compelling reason to think of bringing him back to Florida,” Father
O’Loughlin said. “We needed to focus on getting help to him or him to help
in Guatemala.”

Help has been slow in arriving.

When The Times took the trek to visit him in late June, Mr. Jiménez had not
budged from his hilltop home since returning there and no medical
professional had visited him, either. With his mother too frail to move him
into his wheelchair, his life had shrunken to the confines of his bed,
across from his mother’s.

During the visit, Mr. Jiménez, wearing a nubby Adidas hat and a ski jacket,
sat wrapped in a Guatemalan blanket; his mother, who wore a traditional
woven skirt, with a floral scarf braided through her long gray hair, stood
by his side. She patted his head; he reached out to pick lint from her
sweater.

A few days prior, he had suffered a particularly violent seizure.

“He was almost dead,” his mother, Mrs. Gervacio, said in Kanjobal, which was
translated into Spanish by a school principal serving as interpreter. “For
many years, I am caring for him like he is a baby, changing his diaper,
washing him. But this is worse. I am worried to leave him alone at all.”

She is right to worry, said physicians consulted for this article. Patients
suffering seizure disorders run the risk of injuring themselves — and of
increasing their brain damage.

Still, Mrs. Gervacio does leave from time to time, she said, to go to Mass,
shutting the door behind her and hoping for the best.

“It scares me a lot when you leave, Mama!” Mr. Jiménez blurted out,
revealing that he was intently following the conversation that at first took
place as if he were not there.

Given that Mr. Jiménez’s mother’s health is failing, the family worries
about the future, too. And Mr. Jiménez shares their concern. “The day my
mother is no longer, what’s going to happen to me?” he said. “This is what I
have on my mind.”

Mr. Jiménez, whose memory is patchy, said he remembered nothing about his
time in the United States — not Indiantown, not his job as a gardener, not
the accident and not the hospital.

He does, remember the dreams that propelled his migration, and he expressed
them eloquently: “I headed north like a peasant with a heavy bundle on his
back, bent over, determined to better himself,” he said. “Other people had
things so I thought, ‘Why not me?’ But now I regret it. Maybe God was
punishing me for my illusions.”

“No, Luis,” the interpreter interjected, “it was just chance, an accident, a
car accident.”

In Guatemala City, Dr. Garcés, the public health advocate, said that he was
not surprised that, as he had predicted, Mr. Jiménez never received further
medical care. “That’s the usual story of patients that are released from the
National Orthopedic Hospital,” he said.

Dr. Garcés called Mr. Jiménez’s repatriation “inhumane.”

“In cases like that, if you cut the medical care, you’re hurting that
person,” Dr. Garcés said. “You’re doing just the opposite of what the
medical system should do. That goes against every international convention
of human rights and health. To send him to Guatemala was to send him to very
poor living and health conditions and probably he will die because of that,
and that’s not fair.”

Without evaluation, doctors cannot know what potential for rehabilitation —
or survival — Mr. Jiménez possesses.

If Mr. Jiménez’s guardian were to prevail in the lawsuit, “it would be
possible to set up a good health care arrangement for him because in private
practice we have all types of specialties that he needs,” Dr. Garcés said.
“And transportation could be arranged.” But the case could drag on for
years.

On the day of The Times’s visit, before Mr. Jiménez ate a lunch of eggs,
tortillas and sugar water, Mr. Banks, the lawyer, gave him a present from
his cousins in Florida — a plastic bag bulging with tube socks, undershirts
and oversize sweatpants. Mr. Jiménez fingered the clothing with little
interest but when a reporter began to read him the accompanying letter in
Spanish, he snatched it excitedly from her hands.

Much to the surprise of his visitors, Mr. Jiménez, despite his brain injury,
could read. He smoothed out the yellow legal paper from Mr. Gaspar and
began: “I am sending you some little things. Luis, I hope that you like
them.”

At first, Mr. Jiménez read haltingly, then more fluidly. Later, when all his
visitors had gone outside, he read the ending aloud again to himself.

“I want to tell you,” he read, “that we miss you and love you a lot. May God
continue to bless you.”

Mr. Jiménez smiled, and repeated, softly, “May God continue to bless you.”

• Next message: Abdominal CT for Trauma
• Messages sorted by: [ date ] [ thread ] [ subject ] [ author ]