Maria Bega, a thirty-year-old uninsured transgender woman came to the emergency department of Sinai Hills Hospital, a not-for-profit hospital located in Tall Timber about 120 miles north of Denver, complaining of difficulty swallowing and breathing because of throat swelling. Tom Roger, the nurse practitioner on duty in the emergency room got a full patient history, performed a physical exam and ordered a computer tomography scan. The scan found an abscess at the base of Ms. Bega's tongue that was encroaching on her airway. The emergency room physician on duty, Dr. Elena Rio, reviewed the scan results and determined that immediate surgery was needed. However, when Dr. Gordon Howie, the ear, nose, and throat surgeon on call, was contacted, he refused to see Ms. Bega because she was uninsured, he said.

Dr. Howie is a publicly declared conservative and is on record as opposing legal marriage for gay and lesbian persons. He has posted on social media that he celebrated the Dobbs decision as the first step in rolling back rights of the GLBTQ community. Staff in the emergency room suspect that Dr. Howie did not respond because the patient is transgender and not, as he stated, because she is uninsured. They cite to numerous times that Howie has performed extensive procedures on ER patients even though they were uninsured. The hospital's ER protocol did not provide for a backup specialist, so Dr. Rio authorized an EMTALA transfer. Denver Hospital, a public hospital, accepted Ms. Bega as an EMTALA transfer and performed the throat surgery, followed by a four-day hospital stay, yielding total hospital charges of $15,815.

This incident has caused an uproar in Tall Timber. A coalition of local churches, which has adopted the name HospitalsRUs, is taking the lead in demanding that the hospital put in place a policy whereby those who need emergency care can get it locally, whether they have insurance. The group knows that enforcement of the Affordable Care Act will help, but they are not sure if their state implemented Medicaid expansion and, even if it has, a substantial number of undocumented immigrants live in and around Tall Timber and they will not have health insurance, even if the Act is fully implemented.

The hospital CEO and Board of Directors say the problem is out of their hands when on-call specialty physicians refuse to come to the emergency room to treat uninsured patients. The specialty physicians have admitting and clinical privileges at the hospital but are not hospital employees. The hospital says it cannot force these doctors to treat uninsured patients. The hospital has been buying up primary care physician practices in the area, but they have not, at least so far, purchased any specialty practices. In fact, Sinai Hills CEO and the Board are a little ambivalent about this whole event because if the on-call physician had responded Sinai Hills Hospital would have incurred the $15,815 in hospital emergency services charges.

You are a volunteer lawyer representing the church coalition HospitalsRUs and they are seeking your legal advice on what laws may be of assistance in their effort. While church leaders are not completely litigation adverse, they would prefer to figure out some win-win situation for everyone: hospital, doctors, patients and the community. The hospital is a valuable asset to the community, and they want it to continue to be fiscally sound. They also want to be able to continue attracting good doctors to their community.

In terms of the law that holds institutions accountable, what legal theories might be worth investigating further?

- Same question concerning the individual liability of Dr. Howie.

What additional information do you or the community group need to determine whether there are viable legal avenues to pursue?

How might these theories help the community group ensure that emergency care is available to all in their community?

How would you include the concepts of primary care being delivered in the emergency room into revised "public insurance" provisions of the ACA? Propose specific legislative initiatives that work within the ACA and address this problem.