Judge Rescinds Grady Dialysis Restraining Order, Clinic Again to Close

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(APN) ATLANTA — A Fulton County Superior Court judge rescinded a temporary restraining order against the Grady Health System on Friday, September 25, 2009, that had kept the dialysis clinic at Grady Memorial Hospital open.

“The court is unpersuaded at this time that there is a likelihood that plaintiffs will succeed on the merits of their claims,” Judge Ural Glanville wrote in an 11-page ruling. “Despite plaintiffs’ argument concerning due process, as it relates to the receipt of medical treatment, the court is unpersuaded at this time that the plaintiffs have a constitutional right to the sought-after relief.”

As previously reported by Atlanta Progressive News, the Grady Memorial Hospital Corporation (GMHC), the private, non-profit board that handles the day-to-day operations of the system, had planned to close the Grady Health System Outpatient Dialysis Clinic on September 20 because it loses money every year.

Judge Glanville’s September 16 temporary restraining order kept the clinic open and required Grady to stop inducing patients to seek treatment elsewhere and to notify all patients in writing of their right to continue using Grady’s dialysis services.

With the restraining order lifted, Grady plans to close the clinic October 3, 2009, Matt Gove, Senior Vice President for Strategic Marketing and Planning, told APN.

Attorneys representing anonymous patients who use the clinic, as well as those representing Grady, appeared before Glanville Wednesday to argue either for and against upholding the restraining order.

Bernard Taylor of Alston & Bird argued plaintiffs have not presented sufficient evidence to support their case and asked for a dismissal.

“Is there a constitutional right to care for this class of patients in Georgia? The answer to that question is no,” Taylor argued.

Lindsay Jones, an Atlanta attorney who previously advocated for public housing residents, argued the patients have a constitutional right to medical care.

“The government has a legitimate interest in how it finances the hospital and how it maintains the hospital,” he said. “Due process compels us to look at that interest.”

Jones acknowledged the financial strain the clinic places on the system but argued “we cannot put a price tag on life.”

“Indeed, no value can be placed on human life,” Glanville wrote Friday. “Nevertheless, when contemplating the use of injunctive authority, the court is required to balance relative equities, even in cases involving issues of life and death.”

“If the court were to require defendant to maintain, on an interlocutory basis, the services forming the basis of the above-captioned complaint, it would likely result in an adverse effect on the services offered to other individuals and the public at-large,” Glanville added.

After about 90 minutes of arguments, Glanville asked the parties on Wednesday to begin negotiations that might result in a mutually agreeable solution.

Glanville’s ruling reveals that Grady will voluntarily provide up to three months of continued outpatient dialysis care for up to 51 patients through Fresenius Medical Care.

The GMHC voted September 14 to enter into a two-year contract with Fresenius to provide outpatient dialysis services for many of the clinic’s 96 patients. There are 25 Fresenius clinics within 25 miles of Grady.

“We should be right now contacting patients as quickly as possible and letting them know the situation and helping them select a Fresenius clinic that of course has available appointments,” Gove told APN.

Dorothy Leone-Glasser, a leader with Grady Advocates for Responsible Care who works closely with the dialysis patients and participated in those negotiations, told APN plaintiffs did not sign off on Grady’s voluntary proposal.

“We could not in all good conscience sign that because that is not taking care of the patients,” she said.

About half of the clinic patients are undocumented, uninsured immigrants; patient advocates have argued these patients would have a hard time obtaining private insurance or some government plan like Medicaid.

Other patients impacted by the closure include US citizens who may not have lived in Georgia long enough to qualify for Medicaid.

“We wanted six months to anyone that relocates because it takes that long for anyone who goes to receive residency,” Leone-Glasser said. “I don’t know of one licensed doctor who would say three months of dialysis service is sufficient.”

“I don’t know how to respond to that,” Gove said. “Ninety days should be long enough to help and work with patients to find that long-term solution. By that logic, there’s never a date that’s long enough.”

Grady also agreed to provide assistance and information about other dialysis service providers outside the system to the 51 patients and assist them in relocating to their country of origin or “to other states of their choice.”

In consulting with the patients over the last two months, Grady urged them to move to a state that provides emergency Medicaid services for undocumented immigrants, return to their country of origin, or try to receive dialysis care through an emergency room.

Grady provided a list of 11 states to patients that they said provide emergency Medicaid assistance. The Atlanta Journal-Constitution newspaper last week contacted at least three of these – New Jersey, North Carolina, and Virginia – and found out that they, like Georgia, have residency requirements for Medicaid.

Grady officials could not explain the discrepancy and said the list came from an outside consultant, whom they would not name to the AJC.

“Every state’s going to have slight variations in their requirements,” Gove told APN. “What is certain based on our calls and analysis and discussions is every one of the states we’ve discussed with the patients provides more expanded emergency Medicaid services for illegal immigrants than Georgia does.”

“We’ve set up a hotline that patients can call, ask us questions, get more information,” he added. “If during the process there is an issue, they can call us and we will resolve those issues. We’ll do what we can to find it.”

Officials have also said they were helping patients who choose to leave the state or country with apartment rental, moving, airline, and passport assistance. Leone-Glasser said that, during negotiations, Grady said it would no longer offer this kind of assistance.

“That’s not true,” Gove said. “We’re going to provide the best assistance we can to patients who choose to move.”

Grady has also agreed to voluntarily “provide any of the 51 patients seeking to return to Mexico, or certain other Latin American countries, with assistance through MexCare, which will provide 90 days of outpatient dialysis treatment along with assistance in placing such individuals on the health care plans within their country of origin.”

“I think it’s really disgraceful that they’ve been allowed to treat patients this way,” Leone-Glasser said. “They’re only going to live three more months and now they have nothing to lose.”

“I can’t speculate what happens after 90 days,” Gove said. “Our hope is that patients will be working with us to find a long-term solution. Our hope in 90 days is that everyone has a plan.”

Leone-Glasser characterized Glanville’s decision as “very disheartening.”

“That was a very harsh ruling on the judge’s part and I really don’t know why,” she said. “I think it’s because everybody wants this case over and done with.”

Leone-Glasser said the 34 dialysis patients who were present in court on Wednesday and who are part of Grady Advocates for Responsible Care voted Friday to appeal the decision.

“We’re letting our attorney decide [the next step],” she said. “We’re not going to stop the fight.”

About the author:

Jonathan Springston is a Senior Staff Writer for Atlanta Progressive News and is reachable at jonathan@atlantaprogressivenews.com.

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