Author: Emily Blazak

Ride-Sharing Services Take-On Liability Balancing Act

Ambulance rides in the U.S. are expensive. The most recent data from the U.S. Government Accountability Office revealed they can range from $224 to $2,204. Recent figures suggest ambulance bills can be as high as $3,500 and depending on your insurance plan, you could be footing the entire bill. For some patients, even when experiencing a non-life-threatening illness, calling an ambulance is the only option because they lack transportation. To avoid these high costs, people are turning to ride-sharing services like Uber and Lyft to get to the hospital for a fraction of the price, according to a new unpublished study. This option might actually be beneficial in non-life-threatening situations. However, individuals who use ride-sharing services for serious emergencies simply to save money could raise serious liability concerns and leave drivers asking themselves whether this is in their job description.

Uber and Lyft discourage drivers from transporting individuals to the hospital. In an attempt to shift liability away from the company, Uber has published statements such as “Uber is not a substitute for law enforcement or medical professionals. In the event of any medical emergency, we always encourage people to call 911.” But this is easier said than done when an individual gets into the car and time is of the essence. While some drivers consider these trips as good deeds, others simply feel obligated to transport these individuals to the hospital. The bottom line is ride-sharing drivers are unequipped to deal with emergency health situations. Ambulances are equipped with comprehensive medical technology and life-saving devices, whereas even the most hospitable Uber drivers may offer candy and a phone charger. Even when a customer gets into a Lyft seemingly healthy, drivers are still taking on the risk if the customer’s condition takes a turn for the worst before reaching the hospital. In one instance, a woman whose destination was the hospital got into the car seemingly healthy, only to request the driver to pull over minutes into the ride to get sick on the side of the road.

So, what happens if a customer’s condition worsens as a result of opting for an Uber or Lyft over an ambulance? Attorneys argue that it is unlikely someone would bring suit against an Uber driver for not providing adequate medical treatment because fault would be difficult to prove, and the driver may not be equipped to pay a large settlement or damages. In addition, it is difficult to sue the ride-sharing company directly through employer liability because drivers are hired as independent contractors, so the company is able to shift liability away from them. However, attorneys are recently taking a different approach against these companies, arguing that the drivers were acting as the company’s agent, and therefore the company cannot avoid liability. Attorneys argue that drivers really don’t have control over their individual ride-sharing business. Rather, ride-sharing companies control fares and impose guidelines for how drivers should conduct business before, during, and after rides. If the drivers do not conform, they receive warnings and ultimately risk termination. Since ride-sharing companies do not want the issue of whether drivers are independent contractors or agents decided in court, they settle with the customers that bring suit.

Despite arguments against calling an Uber over 911 in the event of a life-threatening emergency, ride-sharing services are still finding avenues to enter the health care stage. Uber recently launched a new initiative, Uber Health, designed to increase patient access to reliable transportation to doctor appointments. Missed appointments are unfortunately common in the U.S., with 3.6 million Americans missing or delaying appointments due to a lack of reliable transportation. These missed appointments cost the health care system $150 billion annually. The Uber Health dashboard allows healthcare providers to schedule rides for their patients to and from appointments. In addition, the platform is completely HIPPA-compliant, so patient confidentiality is preserved. This progressive move is helpful in the midst of increasing health care cost, but the question still remains whether calling an Uber over 911 is really worth the discount.

Religious Freedom Trumps Patient-Centeredness

On January 18th, 2018 the Department of Health and Human Services answered the President’s May 4th executive order “Promoting Free Speech and Religious Liberty” by creating the Conscience and Religious Freedom Division (“CRF Division”) in the Office for Civil Rights (“OCR”). The CRF Division seeks to enforce existing federal statutes that protect health care providers from discrimination if they refuse to provide or refer medical services that run contrary to their religious beliefs. HHS then followed up with a proposed rule requiring health care organizations to post notices of religious freedom protections on job applications and employee manuals. The proposed rule applies to health care facilities that receive federal funding. Collectively, these initiatives affect more than 745,000 health care facilities and are estimated to cost $312.3 million dollars in the first year. Supporters believe this is a monumental step in promoting long over-due religious freedom protection. However, opponents are concerned about how extensive these protections will be, and whether they will negatively impact patients’ access to critical health care.

The religious freedom statutes upon which HHS’s proposed rule is based, collectively referred to as “Federal health care conscience and associated anti-discrimination laws,” largely impact access to medical services for women. For example, the Weldon Act provides “protections for health care entities and individuals who object to furthering or participating in abortion” and the Coats-Snow Amendment provides “conscience protections related to abortion, sterilization and certain other health services.” HHS argues that while these laws and numerous others are in fact codified, they are not being enforced to the necessary extent. Therefore, the CFR Division is tasked with reviewing the growing number of complaints filed in the OCR. Since President Trump was elected, the OCR received thirty-four complaints of conscience violations while the Obama administration received ten. The complaints allege discriminatory employment practices ranging from compelling nurses to either provide abortion referrals or resign to not hiring an individual based on religious beliefs conflicting with hospital policies. Pursuant to the complaints, the CRF Division will conduct compliance reviews, investigations, and audits to ensure that health care providers are compliant with federal legislation.

How do these initiatives impact patients? While they focus on protecting health care providers, the Department of Health and Human Services’ proposed rule reveals how patients   can benefit from increasing religious freedom protections. These patient-centered benefits include having the ability to choose a healthcare provider who shares their “deepest convictions” and to “speak frankly about their own convictions that concern questions touching upon life and death.” However, critics argue that HHS’s initiatives are inherently not patient-centered because they go against the fundamental idea that health care providers are supposed to put their patients’ interests before their personal beliefs. For example, in a 2000 case, a New Jersey woman suffering from pregnancy complications was “standing in a pool of blood” and required an emergency C-section. After a nurse scrubbing in realized the C-section would terminate the pregnancy, she objected to continuing assistance on religious grounds and delayed the procedure. After refusing a reassignment offer to the newborn ICU from the hospital, the nurse was terminated. She sued the hospital and the court ruled in favor of the hospital. While the CRF Division was enacted to help protect nurses and other health care workers in situations like this moving forward, the fact still remains that patients risk receiving delayed care or no care at all.

The strong support behind protecting religious freedom also poses a concern when vulnerable populations like LGTB patients cannot access the care they need. OCR Director Roger Severino expressed during the CRF Division’s press conference that “a nation that respects conscience rights is a more diverse nation, it is a more free nation, and is a more just nation.” However, while HHS focuses its efforts on protecting religious freedom, it is risking promoting discrimination against vulnerable populations. For example, one Catholic hospital blocked a doctor from performing a hysterectomy on a transitioning transgender patient. It is unlikely that HHS will promote similar conscience protections for LGBT patients during the current administration. This is evidenced by a statement from Severino, who said “on the basis of religious teachings, moral reasoning, scientific evidence, and medical experience, many have strong grounds to hold that one’s sex is an immutable characteristic.” President Trump’s Justice Department also holds similar beliefs, stating said “sexual orientation is not a protected category” in regards to discrimination protections.

At this point, it is unclear the full impact these initiatives will have on access to health care for women and vulnerable populations like LGBT patients. However, one thing is clear: forcing doctors to refrain from care conflicts with their moral convictions the same way forcing doctors to provide it does. Therefore, a balancing test is necessary to ensure that while peoples’ religious convictions are being respected, patients’ access to care is not compromised as a result. The National Health Law Program argues that given the small percentage of people filing complaints with the OCR, the Trump Administration is creating solutions like the CRF Division to problems that do not really exist. However, if complaints continue to grow and cannot be solved by non-litigious means, the ultimate determination on whether religious freedom protections reach as far as HHS intends will come from adjudication in federal courts.