Need for reform for those who cannot afford a lawyer

In September, the New York Times reported on the ordeal of Washington state resident Alexandra Nyfors, 66, whose “single income is $1,700 a month in federal disability payments.”

She became critically ill. An ambulance took her to a hospital owned by the Providence chain, which operates 11 hospitals in Washington and many more in other states, including Covenant Health Hobbs Hospital in New Mexico.

Washington law places a duty on hospitals to provide “charity care” to “persons in need” when third-party coverage, if any, has been exhausted. Mrs Nyfors was entitled to charity care, but she knew nothing of the law and Providence did not tell her.

“Six current and former hospital workers said in interviews that they were told not to mention the financial assistance that states such as Washington are asking Providence to provide,” the Times said.

In defiance of the law, Providence billed Ms. Nyfors for the balance of her bill after Medicare paid its share. The hospital gave her the choice of either paying $1,950 immediately or agreeing to a payment plan, which wasn’t a choice at all.

To meet the monthly payments, she reduced her grocery purchases, stopped heating, and “split her medication in two so it lasts longer,” according to the Times. After Providence’s doctors and nurses cured her, the administrators of her hospital created conditions that exposed her to medical harm.

One of Providence’s employees was forced to take unpaid leave to undergo surgery to remove a cyst. “The hospital billed her $8,000 even though she was eligible for discounted treatment,” the Times reported.

It was then revealed what happened next: “The hospital waived her debts only after an attorney appealed to Providence on (her) behalf.”

That’s all she needed: a lawyer.

Ms Nyfors needed that too. (She eventually learned her rights from an article in The Everett Daily Herald—one journalist will do in a pinch.)

In theory, any Washington resident could look up Title 70 of the state’s revised statute, work through the 13 subsections of the key statute, and then consult the state’s Administrative Act to learn about their charitable entitlement.

In practice, the legal information available online is a dense jungle of confusing creepers and false leads. Any non-lawyer, and especially any non-lawyer recovering from a serious medical event, needs an experienced guide to help them navigate.

For this reason, self-advocacy is not a realistic alternative for most people whose cases involve complex legal or administrative arrangements. You need legal assistance. But how can they afford that?

As you drive down the Albuquerque freeways, you’re constantly reminded of the competition among personal injury attorneys. The Billboard attorneys can say, “We only get paid if you win,” because they take a percentage of their client’s winnings.

But a person who is being pursued by predatory debt collectors does not get their turn to collect any profits. Lawyers on the defense side of civil cases traditionally bill by the hour. For a person under siege by debt collectors, at best they pay the attorney instead of the creditor. Worst case? You pay for both, and the lawyer is more expensive.

Having legal rights means nothing if you can’t afford to enforce them.

New Mexico Legal Aid’s website states that it offers free legal advice to individuals “living in households with annual incomes 125% or less of the federal poverty guideline.” The 2022 federal poverty line for one person is $13,590. Unfortunately, living at or above 126% of this level does not automatically make hiring a private attorney financially feasible.

In addition, the NMLA website adds this painful detail: “For every 14,000 poor people[in New Mexico]there is one legal aid attorney.” That’s a fraction of the number needed.

A Law Review article by John M. Greacen and colleagues proposes a partial solution: “limited scope representation”. This would allow a person in need of legal services to buy a few hours of an attorney’s time without ethically obliging the attorney to complete the case.

“In many cases,” Greacen and colleagues write, “this time may be all it takes for a litigant to successfully pursue a case on its own.”

Here in New Mexico, the ethics of the legal profession allow attorneys to limit the scope of their representation, but only if the limitation is “reasonable under the circumstances.” These four words are a kind of trap. If an agency finds the restriction unreasonable, the attorney could be held ethically and legally responsible for whatever happens to the client.

In this way, the ethical rules have the unintended effect of discouraging attorneys from providing useful legal advice to poor people who, like Providence’s penniless Washington patients, only need this one piece of information to defend themselves.

Revising the rules to allow truly limited representation would not solve all or even most of the problems. It’s a band-aid solution at best. But sometimes a band-aid is what a person needs.

Joel Jacobsen is an author who retired in 2015 from a 29-year law career. If there are any topics you would like to see covered in future columns, please write to him at [email protected]