Issues to Consider in the Planning Stages of a Medical-Legal Partnership
By Jessica Barth, Vice President of Legal Affairs and Chief Counsel, Wishard Health Services, Indianapolis, IN; Chad Priest, Associate, and Erin Lewis, Associate, Baker & Daniels, LLP, Indianapolis, IN
It is by now a truism that social, economic, and environmental factors contribute to poor health. For example, stress, poor diet, and exposure to workplace dangers and environmental toxins all play a role in illness. Healthcare providers are in an excellent position to recognize these social, economic, and environmental causes of illness, but may not feel equipped to help their patients address them. The medical-legal partnership (MLP) model evolved to provide healthcare providers with access to legal help for their patients, with the ultimate goal of improving patient and public health.
An MLP is a program that links healthcare providers and lawyers to assist vulnerable patients. In effect, the lawyer becomes part of the healthcare team. When a healthcare provider identifies an issue – such as moldy carpeting exacerbating a child’s asthma – he or she can ask a lawyer to help solve that problem. MLPs can be structured in a variety of ways, from hospitals hiring lawyers to serve their patients to pro bono arrangements in which law firms donate services.
Traditionally, MLPs have been launched by healthcare providers, as was the case with the first ever MLP, established by pediatrician Dr. Barry Zuckerman at Boston Medical Center in 1993. In contrast, lawyers led the development of an MLP recently established in Indianapolis, the Wishard Medical-Legal Partnership for Patient Health. The program, the first of its kind in Indiana, is a collaboration between Indianapolis’ public safety-net health system; a large Indianapolis law firm; and an independent non-profit organization that promotes a multi-disciplinary approach to health.
In the Wishard MLP, an attorney/social worker who is an employee of the health system spends a half-day a week at each of three sites within the system where children are treated. Because the MLP only takes cases where the legal issue has a connection to the patient’s health, part of the coordinator’s time is spent educating physicians, residents, nurse practitioners, nurses, and social workers about the types of issues that are appropriate for referral to the MLP. At other times, she is meeting with patients and their families who have been referred to the MLP. If she comes across an issue that requires more than an hour or two of legal work, she calls the MLP coordinator at the law firm, who decides how to place the case. Some cases stay with the law firm, but the law firm has also arranged for two local legal aid societies to take cases, as well.
Weekly, a multidisciplinary group including lawyers, healthcare providers, and social workers meets via telephone to discuss new cases and get updates on existing cases. In the program’s first year, most of the referrals have been children whose health is suffering from living in toxic environments, such as insect-infested apartments and moldy houses. However, the MLP has also handled benefits cases and immigration and domestic violence matters.
In the planning stages for the MLP, the partners considered a variety of questions, including identifying who would be the MLP’s client, setting limits on the types of legal cases the MLP would accept, analyzing potential barriers contained in the Indiana Rules of Professional Responsibility, and considering how a multidisciplinary team from multiple organizations would collaborate in the delivery of services. The questions the partners considered in structuring the Wishard MLP may serve as a guide for others considering similar initiatives elsewhere in the country.
1. Determining the Scope of Services
Recognizing that the MLP had limited resources and also that the legal needs of the health system’s patients were boundless, the partners placed limits on the scope of services to be provided. Criminal matters were unambiguously outside the scope as were matters related to child support. Guardianships presented a closer question, and the group determined it would consider them on a case-by-case basis, depending on the closeness of the connection to the patient’s heath. The group considered the MLP’s core issues as those related to poor living conditions (environmental concerns, utility shutoffs), immigration, domestic violence, and benefits advocacy.
After receiving a referral for a personal bankruptcy in a case where it appeared that the parent’s ability to care for the patient adequately hinged on her getting her finances in order, the group recently discussed in detail whether the MLP could take on personal bankruptcy matters. After much debate, and with the advice of a bankruptcy attorney, the group decided handling personal bankruptcies was outside the scope of services that the MLP could provide, given that there were other resources in the community for debt counseling.
With respect to medical malpractice, the partners agreed at the outset that the MLP would not be able to represent patients in lawsuits or other actions against the health system. While all of the partners recognized the common sense in such a policy, there was significant discussion about how to authentically advocate for patients knowing that such advocacy could never involve becoming adverse to the health system.
2. Identifying the Client
With the understanding that the ultimate goal of the MLP would always be improving patient health, the group faced a challenge in determining who would be considered the "client" for purposes of delivering legal services. The health system had already determined that it would limit services to pediatric patients and their families. Was the client the pediatric patient? Not really. The lawyers had to reconcile their own conceptions of "client" with the pediatricians' views of "patient." The group determined that the true client – the person in need of legal services – was the patient’s caregiver, typically a parent or guardian. The group discussed scenarios in which the client’s interest might be adverse to the patient’s (for example, if the client were abusing or neglecting the patient) and recognized that the MLP lawyer would have to withdraw should the client’s objectives harm the patient’s interests.
3. Attorney-Client Privilege and Consent to Representation
In many MLP programs the healthcare practitioner identifies a potential legal need and refers patients to an attorney (either in-house at the hospital or through some other mechanism). While this model is effective in many programs, the group here decided to eschew a referral model in favor of creating a sustained dialogue among healthcare practitioners, lawyers, and other professionals in benefit of the patient. This raised a fundamental challenge to the privileges enjoyed by clients in the attorney-client relationship. The legal team determined that participation in the program would require a knowing consent by the client to have his or her matter discussed with a multidisciplinary team.
The legal team developed a patient consent form to document that the client fully understands the associated benefits and, more importantly, potential risks, in participating in the program. For instance, the client must comprehend that his or her information will be shared with others. The client also must understand the limits of the representation. The consent document also helps familiarize the client with the principles of the attorney-client relationship, such as letting the client know that the client won’t be charged for the services and that the client has the right to terminate participation in the program at any time.
In addition, to comply with the Health Information Portability and Accountability Act (HIPAA), the federal law protecting patients’ health information, the law firm signed a business associate agreement with the health system, essentially agreeing to provide the same protection as the health system would to any protected health information it received.
After a year in operation, and with the groundwork described above in place, the Wishard MLP is serving patients daily. To give one quick example, working hand-in-hand with the county health department, the MLP recently helped a single mother of six children, all of whom suffered from asthma, pressure her landlord into cleaning up the moldy conditions in her rental home. Two of her children had been hospitalized for asthma seven times between them in the prior year. If the MLP can prevent further hospitalizations for those children, it will be meeting its goal of improving patient health.
There are approximately 120 MLPs in existence around the county; the MLP described here represents just one of many models. The ABA has adopted a resolution supporting such partnerships. For more information, please see http://www.abanet.org/legalservices/probono/medlegal/home.shtml.
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