Immigrants Facing Deportation by U.S. Hospitals
By Deborah Sontag
The New York Times, August 3, 2008
Jolomcu, 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the hills of Guatemala, shut inside the one-room house where he spends day and night on a twin bed beneath a seriously outdated calendar, Luis Alberto Jimnez has no idea of the legal battle that swirls around him in the lowlands of Florida.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. Jimnez, 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. Jimnez, 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. Jimnez 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. Jimnez, 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. Jimnezs 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 physicians 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. 'Ive seen patients bundled onto the plane and out of the country, and once that person is out of sight, hes 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 were 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. Josephs 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. 'Weve 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. Josephs in Phoenix, which is part of Catholic Healthcare West, said families were rarely happy about the hospitals decision to repatriate their relatives. But, she added, 'We dont require consent from the family.'
In a case this spring that outraged Phoenixs Hispanic community, St. Josephs 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. Jimnez, 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. Jimnezs 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.
'Were the rhesus monkey on this issue,' said Scott Samples, a spokesman for Martin Memorial.
A Life-Changing Accident
Mr. Jimnezs journey north was propelled by the usual migrants 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. Jimnez 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. Jimnez, a back-seat passenger.
Identified first as John Doe, Mr. Jimnez 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. Jimnez, 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 didnt talk. He didnt 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. Jimnez. '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. Jimnez, whose common-law wife and two children remained in Guatemala, had been living for just under a year with Mr. Gaspars 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. Jimnez 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. Jimnez began wasting away. His relatives grew anxious. Then, Robert L. Lord Jr., Martin Memorials vice president of legal services, said, 'Mr. Jimnez 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 patients condition is terminal,' a doctor wrote in his file.
Again, Martin Memorials 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. Jimnezs case, according to court papers.
Mr. Jimnez 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. Jimnez 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 Hospitals 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. Jimnez who outstay their welcome are an oddity but not an anomaly. Mr. Jimnez 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 dont 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 dont 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 were 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. Jimnez 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 states 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 Memorials 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. Jimnezs case, the hospitals doctors determined that appropriate post-hospital care meant traumatic brain injury rehabilitation. Much to the surprise of the hospital staff, Mr. Jimnez 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. Jimnezs files, which also state: 'At this time, patient remains a disposition problem.'
Representing Mr. Jimnezs guardian, Mr. Banks took the position that the hospital had a responsibility to provide Mr. Jimnez 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 nobodys 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 wont 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. Jimnez. 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. Jimnez 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. Jimnez '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. Jimnez 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. Jimnez had developed some disturbing habits, including spitting, yelling out, kicking and defecating on the floor.
In court, his doctor, Walter Gil, testified that Mr. Jimnez would benefit from returning to the intimacy of his family. In his case file, the doctor had noted that Mr. Jimnez had told him, 'Estoy triste,' meaning, 'Im sad.'
Dr. Gil said he asked Mr. Jimnez, 'Why are you sad when you have basically everything that could be offered to you?' And, he said, Mr. Jimnez replied, 'I miss my family and my wife.'
Mr. Bankss witnesses challenged what they described as Guatemalas vague offer to care for Mr. Jimnez.
Dr. Miguel Garcs, 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. Jimnez would be taken in and then released from the countrys one public rehabilitation hospital within a matter of weeks.
'I dont want him to go home and die,' Dr. Garcs said.
'Nobody wants him to go home and die,' the hospitals 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 Voltaires famous quote, 'The perfect is the enemy of the good.'
And then he granted the hospitals petition, ordering that Mr. Gaspar stop 'frustrating' the hospitals 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 courts 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. Jimnez 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 hospitals 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. Jimnez, bringing a wheelchair, a weeks worth of medications, 'lunch/snacks/juices/treats,' and an emergency passport signed with a fingerprint, according to discharge records. Mr. Jimnez wore a Florida Marlins cap and carried a toy cellphone.
During the flight, the records said, Mr. Jimnez 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 staffs 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. Jimnez 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. Jimnez 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., adis.'
Glad that she had helped reunite Mr. Jimnez with his homeland, she said, 'I left Guatemala quiet in my heart.'
Care in Guatemala
Immaculately clean but dilapidated, Guatemalas 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. Jimnez 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. Jimnez 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. 'Its 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. Jimnez 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. Jimnez migrated with his wifes family to Antigua, a volcano-ringed colonial city where tourism sustains the local economy. While she sold clothing, Mr. Jimnez worked as a bus drivers assistant. Together, they earned about $6 a day, which was not enough to support their family, so Mr. Jimnez, with his wifes 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 Jimnez, 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. Jimnezs 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. Jimnez 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. Jimnez 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. Jimnez 'because we needed the bed,' transferring him to another public hospital, San Juan de Dios. That is where Mr. Jimnezs 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 Jimnez
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 hospitals assertion that Mr. Jimnez would receive appropriate care in Guatemala; the discharge plan, the ruling said, was not detailed enough to satisfy federal requirements or the hospitals own rules.
The appeals court voided the judges order although, given that Mr. Jimnez 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. 'Its a letter that says, Listen, dont take action to dump this individual because youll be risking legal action. The law is now that hospitals cant dump immigrant patients without securing appropriate after-care. If somebody has a serious illness and needs continuing care, a hospital cant 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 Daz, a severely brain-injured patient to Mexico. A court order authorized Mr. Diazs transfer to an unspecified Mexican hospital, ending the mans 859-day, $2 million stay at Martin Memorial.
After the ruling in Mr. Jimnezs 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. Jimnezs 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. Jimnezs 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. Jimnezs guardian, said that he empathized with the hospitals 'significant economic burden' but said that it was the 'quid pro quo' of accepting Medicare and Medicaid funds to help finance the hospitals services. (About 45 percent of Martin Memorials 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 dont 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 Jolomc is an arduous one, as Mr. Jimnezs 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 Cuchumatn Mountains, they arrived at the provincial city of Soloma.
From there, the road to Mr. Jimnezs 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. Jimnez, a broad grin lighting up his face.
'The first striking thing was his disposition: He was very, very happy,' said the Rev. Frank OLoughlin, 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 OLoughlin 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. Jimnez 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 mothers.
During the visit, Mr. Jimnez, 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. Jimnez blurted out, revealing that he was intently following the conversation that at first took place as if he were not there.
Given that Mr. Jimnezs mothers health is failing, the family worries about the future, too. And Mr. Jimnez shares their concern. 'The day my mother is no longer, whats going to happen to me?' he said. 'This is what I have on my mind.'
Mr. Jimnez, 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. Garcs, the public health advocate, said that he was not surprised that, as he had predicted, Mr. Jimnez never received further medical care. 'Thats the usual story of patients that are released from the National Orthopedic Hospital,' he said.
Dr. Garcs called Mr. Jimnezs repatriation 'inhumane.'
'In cases like that, if you cut the medical care, youre hurting that person,' Dr. Garcs said. 'Youre 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 thats not fair.'
Without evaluation, doctors cannot know what potential for rehabilitation or survival Mr. Jimnez possesses.
If Mr. Jimnezs 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. Garcs said. 'And transportation could be arranged.' But the case could drag on for years.
On the day of The Timess visit, before Mr. Jimnez 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. Jimnez 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. Jimnez, 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. Jimnez 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. Jimnez smiled, and repeated, softly, 'May God continue to bless you.'
For some ill migrants, free care has a price
By Daniel Gonzalez
The Arizona Republic (Phoenix), August 3, 2008
When Fidel Delgado arrived at a Catholic hospital in Phoenix in mid-June after a heart attack, doctors performed life-saving bypass surgery, even though Delgado is an undocumented immigrant with no way to pay his medical bills.
Federal law requires hospitals to provide emergency care regardless of immigration status or ability to pay.
But once Delgado had been stabilized, officials at St. Joseph's Hospital and Medical Center faced a serious dilemma: As a hospital certified for acute, or short-term, care, St. Joseph's determined that it couldn't keep Delgado any longer. But the severely diabetic and obese man was still too sick to go home.
Sending Delgado to a rehab facility also was not an option because Medicaid would not pay for the care.
Transferring him to a hospital in Mexico could be traumatic: Delgado, 64, hasn't lived in his native country for more than 40 years.
The decision St. Joseph's would make initially — to send Delgado to Mexico — represents one of the most wrenching policy approaches taken in recent years as part of a state and national crackdown on illegal immigration.
. . .