Aruba Hospital, AWG. 29M and the Courage to Go to Court

The Horacio Oduber Hospital is preparing summary proceedings against the Government of Aruba concerning more than Afl. 29 million in costs associated with medical care provided to people who were not insured under AZV. It is a substantial amount of money, and understandably it has generated considerable discussion. But before deciding who is right and who is wrong, two questions deserve separate answers: when must the hospital provide care, and who must ultimately pay for it?

The distinction matters. If someone arrives at the hospital with a brain hemorrhage, a heart attack, serious injuries, or in danger of bleeding to death, nobody seriously suggests that the hospital should first ask for an insurance card or credit card before treating the patient. As Chairman of the Board of Directors of Horacio Oduber Hospital Aruba, Jacco Vroegop has publicly explained that these are among the situations the hospital encounters. Emergency medicine comes first. The paperwork and the bill come afterward.

But that does not necessarily mean that every non-AZV-insured person presenting at the hospital is entitled to every form of medical treatment free of charge. An important difference exists between emergency medical assistance that cannot reasonably wait and elective or non-urgent care. That distinction may now matter.

The Law Anticipated the Problem

When Aruba introduced AZV, the legislature anticipated that people not insured under AZV might still require emergency medical assistance. Article XVIII of the Invoeringsverordening AZV provides that the Minister responsible for Justice must ensure that his annual budget contains sufficient funds to cover medische noodhulp provided to persons in Aruba who are not insured under AZV. The Minister was also expressly authorized to enter into agreements concerning the provision of that emergency assistance.

Those words matter: medische noodhulp.

The provision does not say that the government must pay every medical bill generated by every uninsured person. At least from the legislation I have reviewed, I see no general rule saying that HOH must provide unlimited elective medical treatment free of charge to every uninsured or undocumented person who walks through its doors.

That raises a legitimate question for HOH. What exactly makes up the Afl. 29 million?

If HOH says that this amount represents medical emergency assistance falling within Article XVIII, then it should be able to demonstrate that. If some of the amount relates to non-urgent or elective treatment, different questions may arise about why that care was provided, under what conditions, who authorized it, and who was expected to pay. That is not being insensitive to sick people. It is basic financial governance.

Governance Works Both Ways

I have previously written that directors and supervisory board members cannot simply sit back while an institution believes that somebody owes it almost Afl. 30 million. I stand by that. If HOH's management and board genuinely believe that the Government is legally responsible for a substantial receivable, they have a responsibility to pursue it. Years of meetings and letters cannot continue indefinitely while the amount keeps growing.

But corporate governance works both ways.

The same management and board must also explain how that receivable came into existence. Was the care emergency medical assistance? Did the system distinguish emergency treatment from elective treatment? Was insurance status checked when circumstances permitted? In non-emergency situations involving uninsured patients, were payment arrangements required? Were patients ever refused non-urgent treatment when neither coverage nor payment existed? Why have you not taken legal action previously? Those are not unreasonable questions when Afl. 29 million of public money is at stake.

HOH cannot simply say, "We had no choice" if in some cases there actually was a choice. If the hospital had no choice because the treatment constituted medische noodhulp, Article XVIII becomes highly relevant. But where treatment could safely have been postponed, the legal and financial analysis may be different.

Let a Judge Look at It

This is precisely why I think going to court may be healthy.

I have not seen HOH's invoices, patient classifications, correspondence with the government, or the defenses that the Country intends to raise — nor do I want to see these. I therefore cannot tell you that every florin of the Afl. 29 million is payable by the government. Nor can I tell you that it is not.

HOH apparently intends to proceed by way of kort geding. Obtaining payment of a substantial monetary claim in summary proceedings is not automatic. Our courts are cautious. There must be sufficient grounds for the claimed payment and a genuine spoedeisend belang, and the judge must consider both sides' interests.

Perhaps one of the most interesting questions will be how much of the amount claimed actually falls within the medische noodhulp contemplated by Article XVIII. That is a question worth answering.

Sometimes Good Governance Means Going to Court

The law anticipated the uninsured patient. It anticipated the medical emergency. It even anticipated that somebody would have to pay the bill. Good governance now requires clarity about whether this is that bill and, if it is, who must pay it. I don't know whether HOH will ultimately recover every florin of the Afl. 29 million it claims.

I support Jacco Vroegop, as chairman of the board of directors of HOH, in his decision and courage to take this issue to court. In fact, I believe he is showing leadership by doing so. If you accept responsibility for managing an institution as important as our hospital, you cannot enjoy the title and then look the other way when you believe almost Afl. 30 million is owed to the institution you have been entrusted to manage. You ask questions. You negotiate. You send letters. You try to find solutions. But when those efforts repeatedly fail, you reach a point where your responsibility requires you to act. That is not being confrontational. That is doing your job. That is corporate governance.

For precisely that reason, I am deeply disturbed by Vroegop's public statement that, following his interview about this issue, he received personal accusations and even one or more death threats. Criticism comes with public responsibility. People are perfectly entitled to disagree with him, with HOH, with the amount claimed, and even with the decision to go to court. But threatening someone because he is carrying out what he considers his responsibility as chairman of the board of directors of our hospital crosses every acceptable line. A director cannot be expected to make decisions based on fear of what may happen to him personally, professionally, or politically if he does his job.

Leadership is not always comfortable. Sometimes it means negotiating. Sometimes it means setting limits. Sometimes it means standing your ground when doing so makes you unpopular. And sometimes, when you have exhausted the alternatives, good governance means having the courage to go to court.

Thanks for reading. Catch you next column, and don't forget to visit www.lincolngomez.com for all my latest blogs and podcasts.