Reflections: How I Turned to Elder Law

By: Jerold E. Rothkoff, Esquire

It has been exactly five years since I opened the doors to my own Elder Law firm. As I look back, I am reminded of the events that forever altered the course of my professional career. For the first five and a half years of my career, I had been practicing in the area of general civil litigation, with an emphasis in creditors’ rights and personal injury law, when I became involved in an elder law matter.

The matter involved a spouse being sued for her husbands alleged outstanding nursing home bills. As I began to investigate the case, I became aware that I needed to become much more familiar with Medicaid and nursing home laws to provide the proper representation for my client. Coincidentally, I subsequently learned that the National Academy of Elder Law Attorneys was having its annual 1999 spring conference in Philadelphia.

With my interest piqued, I signed up for the conference not knowing what to expect. Within the first two hours at the conference, I became energized in a way that had eluded me in my first years in the practice of law.  I got home that night (since the conference was local) and advised my wife that I wanted to change my practice area. I knew back then that there was something about this field of elder law that would fulfill me in ways which I never could have imagined when I went to law school and set out upon my journey to become a lawyer. Two hours at the conference changed my life.

One early case that I handled left an indelible impression on me and characterizes the essence of what elder law attorneys do for their clients. It involved a woman who suffered from Chronic Obstructive Pulmonary Disease (COPD).

Medicare denied her coverage for a procedure called Lung Volume Reduction Surgery.  At that time, in order for Medicare to pay for the complicated and risky surgery, the patient must have enrolled in a national trial program under Medicare. Once enrolled in the trial program, half of the patients received the surgery, while the remaining half were randomized for continued therapy, which, in essence, was a death sentence. My client was randomized for continued therapy, and therefore Medicare would not cover the cost of the approximate $50,000 surgery.  She did not have the financial means to pay privately for the sur­gery, and therefore, on her behalf, I appealed Medicares denial.  Through my research and investigation, I learned of a world-renowned cardiothoracic surgeon in St. Louis, MO, who pioneered lung volume reduce-tion surgery.  With his assistance, my client won the adminis­trative hearing, meaning that Medicare would cover the clients’ surgery.

There are no words for the gratification I felt when I was able to explain to this family that I could help them. It is a feeling that I never will forget.  My client and her family thanked me, stating that she can now dream of the possibility of playing with her grandchildren for the first time, something that she could previously not have done due to her breathing difficul­ties. For the first time in my career I felt that I had a real impact on a family that was confronted with real problems. In an instant, life meant something more to me. I had become a problem-solver, and it felt good.  It still feels good today.

Unfortunately, due to my client contracting pneumonia, she died before she could travel to St. Louis for the surgery. However, at the time, we received the second known administrative decision in the U.S. that overturned Medicares denial of lung volume reduction surgery.  We were able to share our decision with several other individuals across the U.S. who were confronted with the same issue. Ultimately, in early 2004, due to overwhelming medical evidence regarding the benefits of lung volume reduction surgery, Medicare decided to cover the surgery.  I like to think that my client had some small role to play in Medicares decision.

As I look back on these past five years, I have probably learned more from my clients than they have learned from me. The most important thing I have learned is to listen. Listen to the clients’ wonderful stories about the wars they have fought, the places they have been, and the people they have met. We have much to learn from the elderly and disabled, and they have much to share.

It has been an honor and privilege assisting seniors, the dis­abled, and their families these past five years. It is a debt of gratitude that I can only hope to repay.

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