It’s tough to be priceless, but someone has to do it

People in our society have a lot of needs, and many of those are needs they simply can’t pay for.  For instance, attorneys all over America are appointed by courts, from time to time, to represent the interests of citizens who are accused of crimes but can’t afford representation.  This is the ‘price of doing business’ as it were, in order to practice law.  And it is actually a right, unlike so many things thrown about as rights these days.

Recently, as reported in the Greenville News, the South Carolina Bar Association addressed one of the fundamental problems of this right.  That is, a right that requires someone else’s labor means that the person (in this case attorney) providing the service may have to provide it for free, or at less than market value.

I can understand the concern of South Carolina’s attorneys.  One of my relatives is an attorney, and she has been appointed a number of times to represent clients who couldn’t pay.  And it was more than a financial hardship; she has been appointed to clients she felt ethically compromised in representing.  It’s tough to muster up the stomach to provide legal counsel to someone like a repeat sex offender or violent criminal who might, in the end, be free to rape or kill again.

In the News article that addressed the Bar’s concerns, the President of the SC Bar lamented to the Board of Delegates (the Bar’s governing body) the fact that no other profession was required, under threat of penalty, to provide its services without proper compensation.  If it’s any comfort to the members of the Bar, let me say that I know another.

Physicians in emergency rooms, and every other on-call admitting or consulting doctor in our hospitals, practice under a law called EMTALA, or the Emergency Medical Treatment and Active Labor Act.  It basically says to me, as a physician, that if my hospital accepts federal money in the form of Medicare, I have to see everyone without any financial screening.  I can send a bill, but I can’t require payment at the time care is given.  Everyone gets seen, regardless of ability to pay.

Theoretically physicians can provide a ‘medical screening exam’ and decide it wasn’t an emergency, then send folks to their (often non-existent) family doctor.  But thanks to litigation and regulatory interpretation (the unique domains of our legal brothers and sisters), the screening exam can involve everything up to and including surgery.  So when someone comes to the emergency department of a hospital, we have to do everything necessary without any promise of compensation.

What if we don’t?  Well, it’s ‘hoist the Jolly Roger’ and lawsuits all around; for everyone from the emergency physician to every other health-care professional involved.  And it’s not just a regular lawsuit; it’s a federal offense to violate EMTALA.  (For the uninitiated, Federal lawsuits are like arm wrestling with a vampire.  Even if you win, he’s still going to suck your blood.)

Next, there are penalties like loss of Medicare privileges for providers and facilities.  In some cases, EMTALA lawsuits have even invoked civil rights violations.  Such penalties could destroy a physician’s practice or close a hospital.  So the members of the SC Bar Association can rest easy, knowing that they aren’t alone.  Other people have to work for free as well.

I’m truly sympathetic to the concerns of the legal profession.  Some of my best, most valued friends are attorneys who are worth their weight in gold.  I’m just making it clear that the situation of SC attorneys is no more unique than the situation of physicians.

And it isn’t going to change.  America’s health care system, while excellent, still needs a safety valve for the uninsured.  For the foreseeable future, that’s going to continue to be me and my colleagues in emergency rooms and public hospitals around the country.  And physicians, who make comparatively large salaries and like to drive pricey cars, aren’t going to get much sympathy from the general public on this one.  But then, neither are attorneys, many of whom have similar incomes and spending habits.

Medicine and law are professions that are simply so valuable that sometimes, our services are priceless; which means free.  It isn’t ideal, and the system needs work.  But if it were otherwise, someone might die needlessly, or fall victim to gross injustice.  And that, in fact, is too high a price to pay for everyone involved, whether doctor or lawyer, patient or client.

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