The High Cost of Arrestee Medical Treatment: The Effects of F.S. Â§901.35 on Local Government Coffers
One need only peruse a newspaper or switch on the evening news to be alerted to the medical insurance crisis facing America. Florida’s local government entities are among those institutions wrangling with increased premium rates, reductions in coverage, outright denials in coverage, and policy cancellations. Exacerbating this crisis is an often overlooked Florida statute that burdens Florida’s local governments with picking up the tab for persons who suffer injuries during the course of an arrest, most of whom are uninsured.
Current State of the Law
F.S. §901.35, “Financial responsibility for medical expenses,” starts out innocently enough and reads:
Notwithstanding any other provision of law, the responsibility for paying the expenses of medical care, treatment, hospitalization, and transportation for any person ill, wounded, or otherwise injured during or at the time of arrest for any violation of a state law or a county or municipal ordinance is the responsibility of the person receiving such care, treatment, hospitalization, and transportation.
At first blush, the statute appears to place the onus for medical treatment on the person receiving same. However, the statute further reads:
The provider of such services shall seek reimbursement for the expenses incurred in providing medical care, treatment, hospitalization, and transportation from the following sources in the following order:
(a) From an insurance company, health care corporation, or other source, if the prisoner is covered by an insurance policy or subscribes to a health care corporation or other source for those expenses.
(b) From the person receiving the medical care, treatment, hospitalization, or transportation.
(c) From a financial settlement for the medical care, treatment, hospitalization, or transportation payable or accruing to the injured party.
The above then begs the question, “What about the myriad arrestees who have no insurance, no money, or are not entitled to a settlement?” The answer comes in a not so cleverly disguised unfunded state mandate. Specifically, F.S. §901.35(2)(a) & (b) reads:
Upon a showing that reimbursement from the sources listed in subsection (1) is not available, the costs of medical care, treatment, hospitalization, and transportation shall be paid:
(a) From the general fund of the county in which the person was arrested, if the arrest was for violation of a state law or county ordinance; or
(b) From the municipal general fund, if the arrest was for violation of a municipal ordinance.
Based upon the above-referenced statute, counties are responsible for the medical costs incurred by persons arrested for state law and county ordinance violations, and municipalities for violations of municipal ordinances. Further, the responsibility for payment of such medical costs shall exist until such time as an arrested person is released from the custody of the arresting agency. Although the statute does require arrestees who have insurance to assign such benefits to the health care provider, law enforcement officials will quickly tell you that the wide majority of arrestees are indigent. Thus, the proverbial and practical buck stops with local government.
When asked whether §901.35 imposes any limits on a county’s general fund’s liability, the Florida attorney general opined, “Section 901.35 seems to impose tertiary responsibility on the general fund for any medical expenses incurred for the treatment of persons ill or injured at the time of arrest, regardless of whether the person’s condition arises from or is attributable to the circumstances of the arrest.”1 Unfortunately, there exists precious little case law that inures to the benefit of Florida’s local government.
The Arrestee’s Status
It is interesting how courts view the status of arrestees in terms of identifying the entity responsible for bearing the costs inherent in medical care and treatment per §901.35. In the case of City of Fort Myers v. Hospital Board of Directors of Lee County, 505 So. 2d 590 (Fla. 2d DCA 1987), the hospital filed suit against both the city and sheriff seeking to recover for medical services provided to 22 patients who had been charged with violating state law. The circuit court entered judgment in favor of the hospital, ultimately leading to the filing of appeals by both the city and sheriff. Interestingly, the Second District Court of Appeal ultimately held that the patients were county patients due to the fact that they had been charged with violating state law and, therefore, the sheriff, but not the city, was liable for services rendered by the hospital.
The court rationalized that the city police officers arrested the persons involved for allegedly violating state statutes. In so doing, the police officers obtained necessary medical treatment for the arrestees on the way to the detention facility, rather than after booking them into the facility. The court concluded that technical custody was in the sheriff when the transportation to the hospital began. The court reached this conclusion as a result of the fact that the ultimate destination of the arrestees was the Lee County Jail for booking on charges of violating various state statutes. The court made it abundantly clear that merely because a prisoner is taken to a hospital on the way to a county detention facility does not serve to shift the burden for medical treatment to the medical facility. It is important to note that the city lacked a municipal jail, a factor that precluded any cost sharing on its part. Needless to say, the above scenario has the tendency to replicate itself across the state.
Courts have also held local governments liable for arrestees’ medical costs incurred for injuries sustained while incarcerated.2 A quick reading of §901.35 would lead one to believe that the government need only bear the costs as a result of injuries sustained by a defendant or arrestee when “ill, wounded, or otherwise injured during or at the time of arrest.” Unfortunately though, courts have refused to limit the government’s responsibility for medical treatment incident to arrest. In Comeau v. State, 611 So. 2d 68 (Fla. 1st DCA 1992), the medical expenses were incurred as a result of injuries incurred by the defendant when he suffered a slip and fall in the shower. In holding for the defendant, the court ruled that the county, as custodian of a prisoner charged with violating a state law or county ordinance, has a duty to provide medical care for its prisoner. The court further held that §901.35 evinces a legislative intent to impose liability for such care on a governmental entity, upon proof of the prisoner’s inability to pay.
Courts have consistently ruled that counties may seek reimbursement from arrestees who are ultimately found to be solvent. Such a scenario arose in the case of Metropolitan Dade County v. P.L. Dodge Foundations, Inc., 509 So. 2d 1170 (Fla. 3d DCA 1987).This case arose out of an appeal by Metropolitan Dade County from a summary judgment in favor of Dodge Memorial Hospital. The judgment determined that the county owed the hospital $35,703.50 for medical care furnished to a defendant after he was transferred by court order to the hospital for psychiatric evaluation and treatment. The appellate court ultimately reversed the summary judgment. In so doing, the court ruled that the hospital was not entitled to judgment against the county due to the fact that it failed to establish that the defendant lacked insurance to cover the expenses and as such was unable to pay them from his own financial resources. Interestingly, the county conceded its obligation to provide medical treatment to its prisoners. However, it rightfully asserted, and the court agreed, that this obligation does not extinguish the prisoner’s primary responsibility to pay for the cost of the treatment.
Although both §901.35 and applicable case law affords governmental entities the opportunity to seek reimbursement for the costs inherent in the treatment of arrestees, courts have consistently held that such costs may not be assessed against a defendant as a condition of probation. In the case of Morran v. State, 611 So. 2d 1339 (Fla. 2d DCA 1995), the trial court, as a term and condition of probation, assessed $368 for medical expenses incurred by defendant, Morran, while he was in custody awaiting trial. In vacating the assessment, the Second District Court of Appeal ruled that, although §901.335 authorizes the county to seek reimbursement for medical costs incurred by an arrestee, it does not authorize the trial court to impose those costs as a term or condition of probation.
Comeau is another example of the inability of the state to condition a defendant’s probation upon reimbursement for medical expenses incurred by the government. In Comeau, the appellant appealed a condition of his probation that required him to pay restitution to the Suwannee County Sheriff’s Department for the cost of medical care provided to him while he was incarcerated in the county jail. The court held that while §901.35 authorizes the medical care provider to seek reimbursement of costs, it does not allow such costs to be imposed as a condition of probation.3
The Persistent Dilemma
Unlike workers’ compensation or employee-related ailments that have some level of predictability, injuries sustained by persons, culpable or innocent, during the course of the commission of criminal acts are infinitely more difficult to predict. This fact serves to burden public risk managers with making educated guesses as to the potential exposures with which their respective entities may have to contend. Unfortunately, it takes only one catastrophic loss in the form of a police-involved shooting, high speed pursuit resulting in a traffic accident, an encounter with a prenatal suspect, etc., to wreak havoc on local government coffers. Local government insurance providers tend to become insecure when faced with such uncertainties, a scenario that often translates into higher premiums and deductibles.
Like most unfunded state mandates, it is infinitely easier to diagnose the disease than it is to identify a cure. Most of the state’s local government law enforcement entities take great pains to train officers to act with all deliberate care when encountering dangerous, injured, or violent suspects, and to be prudent when assessing the need to engage in a high-speed pursuit. Considering the fact that arrestees are experiencing longer in-custody stays, coupled with the fact that a local government’s responsibility continues until an arrested person is released from the custody of the arresting agency, F.S. §901.35 will continue to erode the coffers of our fiscally strapped local governments.
1 Op. Att’y Gen. Fla. 85-06 (1985).
2 See Comeau v. State, 611 So. 2d 68 (Fla. 1st D.C.A. 1992).
3 But see Allen v. State, 642 So. 2d 815 (Fla. 1st D.C.A. 1994), where court distinguished Comeau and allowed reimbursement of medical costs to be imposed as a condition of probation where defendant’s negotiated plea bargain included, as a specific component, the obligation to reimburse the sheriff’s office for these medical costs.
Joseph G. Jarret is the Polk County, Florida, attorney, a certified mediator and arbitrator, and a former U.S. Army combat arms officer. Jarret holds the Bachelor of Science degree in criminal justice from Troy State University, masters in public administration from Central Michigan University, J.D. from Stetson Law School, and a post-graduate certificate in public management from the University of South Florida.
This column is submitted on behalf of the City, County and Local Government Law Section, Craig H. Coller, chair, and Jewel W. Cole, editor.