QUARTERLY NEWSLETTER - WINTER ISSUE 2011 - #2 Welcome to the second edition of the SAC Review. The response has been fantastic and we are thrilled with the positive feedback we’ve received from you. Your enthusiasm has encouraged our team to put together an extra special holiday edition packed with valuable information. Please enjoy our new column Ask SAC; a section devoted to answering common client questions. In addition to the hard copy mailed to you, the newsletter and bonus content can be found on our website at www.sacfirm.com. We wish you and your entire staff a happy and healthy holiday season. Joy, George, Vince
HOT TOPIC
GETTING AROUND THE SHARP DECISION
OBTAINING PAYMENT FOR TREATMENT OF “IN-CUSTODY” PATIENTS By: Aleksandra Sarosiek, Esq. & Karlene J. Rogers-Aberman, Esq. It is generally difficult for hospitals to obtain payment from California cities and counties after giving care to arrested persons in need of immediate medical attention. Over time, this struggle has become even more difficult as a result of both legislative activity and rulings by California courts. •
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In 1992, an amendment to California’s Penal Code provided that cities should not be liable for medical costs resulting from an officer transporting an arrested person to the hospital prior to booking them into county jail. Between 1992 and 2007, hospitals were able get around the amendment by relying on the longstanding 1968 case of Washington Township Hosp. Dist. v. County of Alameda, which gave a broad meaning to the term “booking.” Under Washington Township, an arrested person was considered “booked” even if he or she was not physically committed to a cell. This was called a “constructive” booking. Under Washington Township, the constructive booking theory meant that the arresting entity was responsible for paying for the arrested person’s medical care from the time he or she was placed under arrest. The reasoning was that if the arrested person had not been injured, he or she would instead have been taken directly to jail. In 2007, the case of Sharp Healthcare v. County of San Diego essentially
overturned the holding of Washington Township by doing away with the theory of constructive booking. In Sharp, the California Court of Appeal ruled that San Diego County was not liable for the medical care expenses of a person arrested and treated at a hospital before the arrestee was committed to the county jail because there was no duty to book an arrested person “in absentia.” The Sharp court held that “County may elect to delay booking of arrestees until after they have received medical attention.” Despite the ruling in Sharp, it is important to note that nothing in the case prevents the sheriff from voluntarily booking an arrested person. In other words, the sheriff or other enforcement officer can waive the right to delay booking. A hospital could therefore make the argument that if a patient is transported to a hospital and “field booked” by the government entity while receiving treatment, the patient has been voluntarily “committed” under Sharp. (A “field booking” generally occurs outside the physical confines of jail and is completed from a remote location such as a hospital. Field bookings use the same procedures and render the same results as a jailhouse booking). By voluntarily field booking the patient, the government entity is effectively acknowledging it has a duty to pay for the care rendered to the individual. In practice, this voluntarily booking is usually represented by an “In-Custody Medical Treatment Form” completed by the arresting offer. The form typically lists the name of the patient, their age and gender, as
well as the arresting officer’s signature and badge number. Most importantly, it (i) certifies that the treatment was authorized by the appropriate enforcement division (e.g., the County Sheriff’s Department), and (ii) provides a booking number. Hospitals are therefore in a good position to get around the Sharp decision if they obtain a properly completed In Custody Medical Treatment Form at or near the time treatment is rendered. If the hospital waits too long to obtain the In Custody Medical Treatment Form, it could give the city or county an opportunity to argue there was a “delay” in booking. That then gives the county an “out” to argue it has been absolved of any financial responsibility for services rendered. Hospitals are also in a good position to get around Sharp if there have been any partial payments received from the city or county in connection with the hospital’s treatment of the arrested individuals. By making a payment on the claim, no matter how small (and it usually is!), the city or county is effectively acknowledging some responsibility for the treatment rendered. As a side note, there are many legal nuances and holes in the Sharp case that remain open to interpretation and will likely lead to more litigation in the future. For example, Sharp never clearly defined the term “commitment” and did not specifically address field bookings. Therefore, it is left to be seen whether other judges or the California legislature will agree that a field booking renders an arrested person “committed” as intended by the Sharp decision.