Battle to save LICH plays out in Brooklyn Supreme Court
The full story of Wednesday's proceedings before Justice Baynes
“This is the largest courtroom I could find and we’re still going to have some overflow,” Supreme Court Justice Johnny Lee Baynes commented on Wednesday as the hearing room at 360 Adams Street filled to capacity with supporters of Long Island College Hospital (LICH), reporters and a small army of attorneys.
The crowd was there to witness the ongoing legal battle as SUNY Downstate and the state Department of Health (DOH) move to shut down LICH, a 155-year-old hospital in Cobble Hill, in the face of vehement opposition from staff, patients and local representatives.
“We want to try to move this thing along, diligently. I won’t tolerate anything less,” Justice Baynes said, listing the many filings, restraining orders and appeals that have taken place since February, when SUNY announced its first plan to shut down LICH.
The New York State Nurses Association, 1199 SEIU, the Concerned Physicians of LICH and a patient, represented by lead attorney Richard Seltzer, have joined in one set of legal proceedings to keep the 155-year-old Cobble Hill hospital open.
Public Advocate Bill de Blasio, represented by Jim Walden of Gibson, Dunn & Crutcher, has been joined by six influential civic groups and a patient’s wife in separate legal actions to keep LICH open.
Before the proceedings began, and again during a break, Justice Baynes urged the parties to consider “any possibility of a settlement.” Lawyers for LICH’s supporters told Baynes they would agree to a settlement that would keep the hospital open during the process, already underway, of finding a new owner, but no move was made to proceed with this.
“You might as well clear your calendars; I’m in this for the long haul,” he told the teams of attorneys. The proceedings will continue on Thursday and “on a day to day basis.”
Throughout Wednesday’s proceedings, .Justice Baynes asked pointed questions regarding the dates of cutbacks to services at LICH, contrary to orders he has issued to keep the hospital in operation and to restore ambulance service.
He also made reference to a possible “criminal investigation” for denying medical care, and its impact on the case. “The Attorney General of New York has made application to withdraw, citing a conflict of interest between DOH and SUNY,” he said, warning of a possible future conflict of interest between the two entities.
Role of DOH debated
Several major areas of contention were wrestled with throughout Wednesday’s proceedings.
One concerned the process followed by DOH in approving the plan to close LICH.
Robert Welch, testifying for DOH about the agency’s approval of LICH’s closure, told Justice Baynes that DOH “does not decide if a hospital closes. Once it’s decided, DOH monitors how the hospital closes to provide health and safety” to patients.
Mr. Walden, however, argued that when Continuum, a previous owner, wanted to shutter OB/GYN and Neonatal services at LICH in 2008, “DOH denied the request.” Walden said that DOH said at that time, “DOH remains committed to work with LICH, Physicians, Continuum and the community to turn LICH into a fine community hospital.”
Justice Baynes noted that DOH regulations require a 90-day notice be given before closure and jousted with Welch on several points regarding the ever-diminishing level of service being permitted at LICH. “DOH already authorized them to close the Emergency Room, discharge patients, and end surgery. What else is left? Turning off the lights?”
Mr. Seltzer argued that the standards governing DOH’s actions on the closure plan are “unconstitutionally vague” and lack objective standards. “If the legislature gives power to DOH to regulate health, the only way to regulate that is to make sure there’s some standard.”
Justice Baynes repeatedly returned to more concrete considerations, however. “Have the respondents complied? Have they given 90 days? We’re here for the most recent closure plan. There have been three,” he reminded attorneys.
Anthony Genovese, representing SUNY, maintained the 90-day period “is not a waiting period. It’s notice the hospital is closing. DOH can say we don’t need 90 days. The regulation is not for the benefit of 1199 and Concerned Physicians of LICH, it’s only for the benefit of DOH.”
Baynes questioned whether LICH’s closing process thus far has been orderly. While DOH’s Welch assured him that it had, Walden strongly disputed the claim, saying, “To call it even a transition, let alone an orderly transition strains the meaning of the words.”
A SUNY lawyer seemed to undermine his client’s contention of an orderly transition later in the proceedings by asserting there were “angry mobs” surrounding the hospital. The statement elicited snickers of disbelief from those in the aisles.
Justice Baynes appeared to be put off when he learned that Welch, in spite of his assurances about the orderliness of LICH’s partial closing, had never visited LICH. Baynes gave permission for him to return upstate and requested that the DOH representative who went into LICH on a daily basis testify on Thursday.
Issue of ‘standing’
Another area of contention was the issue of having the “standing” to file suit. Lawyers for SUNY maintained that none of those filing to keep LICH open are within the “zone of interest,” and have not been injured by the regulation, a contention rejected by Seltzer.
Petitioners have received “WARN notices, and most are on administrative leave and are facing immanent loss of jobs,” he said.
Justice Baynes told SUNY lawyers that Local 1199 “is about to lose 920 jobs. You have to convince the court that’s not irreparable harm.”
Emily Rose, representing DOH, said that standing was a “threshold issue.” It’s unfortunate, she said, but “not one person here is regulated by the regulation we’re here about. They are not given the right to come into court whether they are patients, employees or the Public Advocate.”
Walden contested Rose’s contention, however. “There’s no doubt that under the law the Public Advocate has standing. Courts have inferred the ability of the Public Advocate’s Office to go to court and say the words, ‘Not on my watch.’
Other issues regarded the applicability of education law; squabbles about whether papers were served in time; and the possibility of seeking additional money from the state to rent LICH property as specified in a 30-year lease.
Justice Baynes has issued three temporary restraining orders (TROs) over the past six months, all ordering SUNY to keep the hospital open and to restore services, including ambulance service to the Emergency Room.
On July 22, Appellate Division Judge Robert Miller ordered Downstate to maintain the level of service at LICH that was provided at the hospital as of 4 p.m. on July 19.
Mr. Walden said that Downstate had not maintained service and was in fact further undermining the hospital. As of Thursday, SUNY “scheduled only one attending physician” at LICH, Walden said, adding that orders to cancel ear, nose and throat treatment came through Tuesday night. “They’ve been trying to decertify the ambulances before further action,” he said. “They’re taking away crucial resources so LICH crumbles from within.”
Walden said that all patients are required to sign a lengthy form – a “false notice” – saying that appropriate treatment was no longer available in the ER, pharmacy, lab, radiology and critical care areas. “DOH specifies they maintain these very services even as they partially close,” he said.