Judge in NY forces all new lawyers to work for free

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http://www.nytimes.com/2012/05/02/ny...CF9E1FBEAC720E

Of course my first instinct is to laugh at the lawyers, but this is a very very dangerous precedent. How long before the same people come after the "rich" doctors? Think it cant happen? Think again.

Lets not forget that there was a proposal in Massachusetts to force all doctors to accept Medicare/Medicaid as a condition of getting a medical license in that state. Its not that much of a step to start requiring that they work for free.

Of course, at first it wont sound bad. They'll only require something trivial like 20 hours a year or something. But thats now. Wait 5 years and you'll see it creep up to 40 hours, 500 hours, 1000 hours, and so on. Once the precedent is set, its very easy to keep pushing it higher and higher.

Of course this ******* judge exempted himself and others from the law -- its only the newbie fresh law grads who are affected. ****ing hypocrite.

That's called a "slippery slope" logical fallacy.

Google it.

EMTALA anyone?

Originally Posted by Pudortu

EMTALA anyone?

Agreed. Medicine already has this mandate to work for free. I could go on and on but the short version is that the EMTALA law requires that any doctor working in the ER or on the call list at a hospital that takes Medicare and Medicaid (most hospitals) must provide all stabilizing care necessary for any emergent condition without regard to ability to pay.

For example, if you are the CT surgeon on call and a patient with no money and no insurance needs a CABG you must provide it for free. You can still be sued for bad outcomes and you can't write off the loss on your taxes.

This law has been with us since 1986.

So I don't feel sorry for the lawyers.

Originally Posted by SnowyRox

That's called a "slippery slope" logical fallacy.

Google it.

The slippery slope is only a fallacy in formal logic. In reality it is quite a force.

For example when the federal income tax was introduced it was to be 2% and the argument against it (a slippery slope argument) was that once created it could be raised to confiscatory levels. That argument lost and federal income tax rates are now as high as 35% and have been much higher. There clearly was a slippery slope.

How wasn't this big news prior to the legislation? Too late to protest now....

Although EMTALA sucks I dont think its the same as this proposal because ER docs still get paid a salary for working in the ER. A better analogy would be a law requiring that family medicine doctors see every pt that shows up to their clinic regardless of payment. In that situation, the FM docs get ZERO money for their work. At least the ER doc still gets a salary. For the subspecialists who have to cover the ER, they have an option of saying screw you, giving up their hospital privileges, and walking away. The lawyers in this situation dont have that luxury.

Originally Posted by Socrates25

Although EMTALA sucks I dont think its the same as this proposal because ER docs still get paid a salary for working in the ER. A better analogy would be a law requiring that family medicine doctors see every pt that shows up to their clinic regardless of payment. In that situation, the FM docs get ZERO money for their work. At least the ER doc still gets a salary. For the subspecialists who have to cover the ER, they have an option of saying screw you, giving up their hospital privileges, and walking away. The lawyers in this situation dont have that luxury.

Actually, there is a model called "fee for service", just like the FM doc in the office - fee for service is also known as "eat what you kill". It completely centers on how many and how complex patients you see. If you were to go to work and see no one, you don't get paid. Likewise, if you have a large contingent of no-pay patients, you get nothing (and that is why EMTALA was enacted - so that there is no "wallet biopsy"; unfortunately, there is no upside - only the risk of being sued for providing services for free, so it literally costs money to see these patients).

So, your example is partially incorrect.

Originally Posted by Socrates25

Although EMTALA sucks I dont think its the same as this proposal because ER docs still get paid a salary for working in the ER. A better analogy would be a law requiring that family medicine doctors see every pt that shows up to their clinic regardless of payment. In that situation, the FM docs get ZERO money for their work. At least the ER doc still gets a salary. For the subspecialists who have to cover the ER, they have an option of saying screw you, giving up their hospital privileges, and walking away. The lawyers in this situation dont have that luxury.

I think Apollyon was being too kind (Wow! Did I actually say that?) The vast majority of ER docs are not paid a salary. We are paid based on the amount of money we collect from billing the patients we treat. When we treat people for free (i.e. EMTALA mandated care) the amount of money we can be paid in any scheme (hourly, fee for service, incentivized, hybrid, etc.) goes down.

Originally Posted by docB

I think Apollyon was being too kind (Wow! Did I actually say that?) The vast majority of ER docs are not paid a salary. We are paid based on the amount of money we collect from billing the patients we treat. When we treat people for free (i.e. EMTALA mandated care) the amount of money we can be paid in any scheme (hourly, fee for service, incentivized, hybrid, etc.) goes down.

You just made the list, buddy!

Originally Posted by docB

Agreed. Medicine already has this mandate to work for free. I could go on and on but the short version is that the EMTALA law requires that any doctor working in the ER or on the call list at a hospital that takes Medicare and Medicaid (most hospitals) must provide all stabilizing care necessary for any emergent condition without regard to ability to pay.

For example, if you are the CT surgeon on call and a patient with no money and no insurance needs a CABG you must provide it for free. You can still be sued for bad outcomes and you can't write off the loss on your taxes.

This law has been with us since 1986.

So I don't feel sorry for the lawyers.



The slippery slope is only a fallacy in formal logic. In reality it is quite a force.

For example when the federal income tax was introduced it was to be 2% and the argument against it (a slippery slope argument) was that once created it could be raised to confiscatory levels. That argument lost and federal income tax rates are now as high as 35% and have been much higher. There clearly was a slippery slope.

Um, even with EMTALA, people who visit the ER still get a bill. The criticism comes from the fact that EMTALA doesn't provide a source of compensation for someone who doesn't pay their bill.

It is, however, factually incorrect to suggest EMTALA requires ER physicians to work for free.

If it were ever to be repealed (which is so astronomically unlikely it's almost laughable to suggest), what would you have ED's do?

Originally Posted by SpAnKz89X

Um, even with EMTALA, people who visit the ER still get a bill. The criticism comes from the fact that EMTALA doesn't provide a source of compensation for someone who doesn't pay their bill.

It is, however, factually incorrect to suggest EMTALA requires ER physicians to work for free.

If it were ever to be repealed (which is so astronomically unlikely it's almost laughable to suggest), what would you have ED's do?

Good points. You are 100% correct when you say that EMTALA does mandate free care and that the patients get a bill. EMTALA actually mandates that any stabilizing treatment for an emergent medical condition be rendered "without regard to ability to pay." They do get a bill but the reality is that a very small percentage, on the order of 10%, of patients without insurance ever pay anything.

So in practice is is absolutely correct to say that EMTALA mandates free care by EPs.

As for what I would have EDs do the question really should be what will medically indigent patients and society do if EDs were allowed to demand proof of ability to pay prior to delivery of care just like primary care clinics do. My solution would be to extend Medicaid to anyone who has a job and revive the county system for those who don't while applying sovereign immunity to the county systems to increase the resources available for care.

I don't like this in general---sets a bad precedent in many ways (something similar translated into Medicine would be bigger than EMTALA)

although it's hard to be sympathetic to lawyers---they have written themselves into the law, and made everything so ponderous and complex that in many cases their services are an absolute necessity.

simplification of the legal system as a whole is the real answer--- tremendous and frightening as that task would be to undertake---so of course no one will touch that

Originally Posted by docB

Good points. You are 100% correct when you say that EMTALA does mandate free care and that the patients get a bill. EMTALA actually mandates that any stabilizing treatment for an emergent medical condition be rendered "without regard to ability to pay." They do get a bill but the reality is that a very small percentage, on the order of 10%, of patients without insurance ever pay anything.

So in practice is is absolutely correct to say that EMTALA mandates free care by EPs.

As for what I would have EDs do the question really should be what will medically indigent patients and society do if EDs were allowed to demand proof of ability to pay prior to delivery of care just like primary care clinics do. My solution would be to extend Medicaid to anyone who has a job and revive the county system for those who don't while applying sovereign immunity to the county systems to increase the resources available for care.

There is no such thing as "free" care. That's my point. EM physicians aren't donating their time. EMTALA doesn't force EM physicians to work for free.

What it does do is force hospitals to overcharge in other areas to make up for the lost revenue. And that's part of the reason why we need universal health care. The cost of care that people can't (or won't) pay when they go to the emergency room is passed onto everyone else with insurance or who can pay their bills.

Originally Posted by lizzy596

I don't like this in general---sets a bad precedent in many ways (something similar translated into Medicine would be bigger than EMTALA)

although it's hard to be sympathetic to lawyers---they have written themselves into the law, and made everything so ponderous and complex that in many cases their services are an absolute necessity.

simplification of the legal system as a whole is the real answer--- tremendous and frightening as that task would be to undertake---so of course no one will touch that

What does simplification of the legal system mean? I don't agree that all of our problems are because of lawyers. Our fee-for-procedure system has some culpability as well.

Originally Posted by SpAnKz89X

There is no such thing as "free" care. That's my point. EM physicians aren't donating their time. EMTALA doesn't force EM physicians to work for free.

What it does do is force hospitals to overcharge in other areas to make up for the lost revenue. And that's part of the reason why we need universal health care. The cost of care that people can't (or won't) pay when they go to the emergency room is passed onto everyone else with insurance or who can pay their bills.

You are incorrect. I think your misunderstanding is due to an assumption that emergency physicians are paid by hospitals. The vast majority of us are not. We make our money by billing patients for the professional services we provide. When I send a bill to a patient without insurance and he does not pay me I have worked for free.

What EMTALA mandates specifically is that anyone working in the ED or on the on call list at a hospital that participates in the Medicare/Medicaid programs must provide this care. Pretty much every hospital with an ED that is not military or VA falls under the EMTALA mandate. So unless I want to abandon the specialty of EM I am required to provide free EMTALA mandated care.

In fact seeing these patients actually costs me money. I must still pay malpractice premiums for the privilege of treating them despite the fact I make nothing in return.

Your comment that we don't donate our time was interesting. One fix that has been suggested for this situation would be to categorize EMTALA care as charity and make it tax deductible. Another would be to grant providers sovereign immunity for care mandated by EMTALA. Neither of these proposals have gained much traction outside of medicine.

The most appropriate way to look at the unfunded mandate EMTALA is as a tax on physicians working in EDs or on hospital call lists. We are mandated to provide free care and even to absorb the overhead costs of that care ourselves for the privilege of working. We have do so in the past but as reimbursements drop the relative personal cost of EMTALA rises and this will negatively impact care for everyone.

Originally Posted by docB

You are incorrect. I think your misunderstanding is due to an assumption that emergency physicians are paid by hospitals. The vast majority of us are not. We make our money by billing patients for the professional services we provide. When I send a bill to a patient without insurance and he does not pay me I have worked for free.

What EMTALA mandates specifically is that anyone working in the ED or on the on call list at a hospital that participates in the Medicare/Medicaid programs must provide this care. Pretty much every hospital with an ED that is not military or VA falls under the EMTALA mandate. So unless I want to abandon the specialty of EM I am required to provide free EMTALA mandated care.

In fact seeing these patients actually costs me money. I must still pay malpractice premiums for the privilege of treating them despite the fact I make nothing in return.

Your comment that we don't donate our time was interesting. One fix that has been suggested for this situation would be to categorize EMTALA care as charity and make it tax deductible. Another would be to grant providers sovereign immunity for care mandated by EMTALA. Neither of these proposals have gained much traction outside of medicine.

The most appropriate way to look at the unfunded mandate EMTALA is as a tax on physicians working in EDs or on hospital call lists. We are mandated to provide free care and even to absorb the overhead costs of that care ourselves for the privilege of working. We have do so in the past but as reimbursements drop the relative personal cost of EMTALA rises and this will negatively impact care for everyone.

I think we're arguing over the concept of "free". Whether you work for a hospital or your salaries are earned directly from patients' bills, my point is still the same: How do you remain practicing if you're working for free all this time?

You remain practicing because emergency care is artificially inflated (I'm not going to argue, however, the degree or how much) system-wide in order to pass on the losses by those patients who don't pay to those that can.

In other words, you (and I mean EDs in the entire country, not necessarily just you in particular) may be working for "free" for that patient who can't pay their bill, but you're charging a crapload, essentially amounting to "overtime" for other procedures on patients that can pay.

EMTALA was passed in 1986 in order to stop "patient dumping", or sending patients who do not have insurance/can't pay their bill to other hospital. Repealing it won't stop EM physicians from working for "free"; it will just guarantee that EM physicians at certain hospitals will do it.

I do agree with you in spirit, however: not providing funding for physicians under EMTALA is an unfair burden. Universal health care would eliminate this burden, but again, that's just my opinion.

I understand what you're saying but I have problems with it.

By arguing that this is not "free" care you seem to be supporting EMTALA as a good idea. I get concerned when I hear someone supporting EMTALA as one of the physicians who is primarily affected by it. Support for EMTALA carries with it some baggage that many don’t immediately appreciate.

The argument that the system we have where we and the hospitals stay in business by using transfer payments (which is the term for charging more to the insured to cover the uninsured) is a good one is flawed. It disproportionally punishes hospitals and doctors in poor areas because they have fewer insured patients to cover the greater proportion of uninsured. For example, in my area the community standard is to have board certified ER docs. But at the hospital in the poorest neighborhood the ER docs just can’t make enough to demand that. Their payer mix is too poor. So they use non boarded docs. They also offer few services (e.g. cath lab) and transfer those patients elsewhere.

Support of EMTALA also implies a belief that ER docs and the docs on the call list make enough money elsewhere and that it is therefore appropriate to require us to provide uncompensated care. That’s a dangerous idea. If you support the supposition that someone else makes “enough” or “too much” and support steps to redistribute their money (such as EMTALA) you may find yourself eventually defined as having too much as well.

Back to the specific question of can EMTALA care be considered “free” care, I reject your argument that since I am making money while at work I’m not giving free care to the uninsured. Consider the fact that if I have bad luck and only see uninsured patients on a shift I don’t get paid for that shift. My group has a way to spread that loss out over the group but others don’t. That is the same for the on call docs as well. All uninsured = no pay.

Originally Posted by docB

I understand what you're saying but I have problems with it.

By arguing that this is not "free" care you seem to be supporting EMTALA as a good idea. I get concerned when I hear someone supporting EMTALA as one of the physicians who is primarily affected by it. Support for EMTALA carries with it some baggage that many don’t immediately appreciate.

The argument that the system we have where we and the hospitals stay in business by using transfer payments (which is the term for charging more to the insured to cover the uninsured) is a good one is flawed. It disproportionally punishes hospitals and doctors in poor areas because they have fewer insured patients to cover the greater proportion of uninsured. For example, in my area the community standard is to have board certified ER docs. But at the hospital in the poorest neighborhood the ER docs just can’t make enough to demand that. Their payer mix is too poor. So they use non boarded docs. They also offer few services (e.g. cath lab) and transfer those patients elsewhere.

Support of EMTALA also implies a belief that ER docs and the docs on the call list make enough money elsewhere and that it is therefore appropriate to require us to provide uncompensated care. That’s a dangerous idea. If you support the supposition that someone else makes “enough” or “too much” and support steps to redistribute their money (such as EMTALA) you may find yourself eventually defined as having too much as well.

Back to the specific question of can EMTALA care be considered “free” care, I reject your argument that since I am making money while at work I’m not giving free care to the uninsured. Consider the fact that if I have bad luck and only see uninsured patients on a shift I don’t get paid for that shift. My group has a way to spread that loss out over the group but others don’t. That is the same for the on call docs as well. All uninsured = no pay.

Again, I think this is an argument about semantics. Nothing is ever "free". Someone always pays.

Your argument is that you, as a physician, pay when a patient comes to the ER, you treat them under EMTALA, and then they can't pay their bill.

I'm not disagreeing with you. EMTALA is unfair this way. But I disagree with calling it "free" care. Someone is paying. If a patient cannot pay their bill, then you, as the treating physician, "pays".

But, if only "10%" of people without insurance who come to the ER end up paying their bills, how does any ER stay open (I don't like using percentages unless there's academic literature that shows it)? I believe that the cost of this care can and does outweigh the cost of care of people who do pay, whether through their own pockets or with insurance. Or certainly makes a huge enough dent into a hospital's bottom line to cause profit margins to diminish.

They stay open because the cost of the care that any physician provides that would be considered "free" is eventually passed on to patients who can pay. Otherwise, ERs couldn't stay open if they were providing "free" care all the time.

Like I said, I'm not disagreeing with you that EMTALA is unfair and puts an unfair burden on EM physicians. I'm just saying that the final destination of the cost of "free" care is not necessarily put on the shoulders of EM physicians but to patients who can pay. In theory, you could have all uninsured patients where none of them pay, but in practice, because EMTALA applies to hospitals who accept Medicare and Medicaid, and they do pay.

Originally Posted by docB

As for what I would have EDs do the question really should be what will medically indigent patients and society do if EDs were allowed to demand proof of ability to pay prior to delivery of care just like primary care clinics do.

That's an interesting point. Again, I think we're on the same page. Repealing EMTALA, with all of its flaws, paints a picture that you just stated doesn't seem too pretty. If ERs had to ask for proof of insurance before they saw anyone, what kind of bureaucratic nightmare would that create?

Your idea is a step in the right direction, but I definitely think HR 676 is a better solution. Additionally, while I'm uncomfortable with the idea of tort reform, malpractice reform is definitely required.

Considering how many new law grads seem to have trouble finding work, this may help them get noticed or at least help them demonstrate their skills.