Brooklyn judge rejects effort to toss out LICH scores
Long Island College Hospital supporters disappointed
State Supreme Court Justice Johnny Lee Baynes on Friday rejected the motion brought by advocates for Long Island College Hospital (LICH) to toss out several “questionable” scores for proposals to buy the historic Cobble Hill hospital.
Brooklyn community groups and doctors wanted Justice Baynes to reject six out of 18 of the rankings. Attorney Jim Walden (Gibson, Dunn & Crutcher) had argued that those rankings did not follow the rules of the state’s RFP, which called for proposals offering to operate LICH as a hospital to get more points than those not including a hospital.
Six of the evaluators ranked proposals not offering hospitals higher than proposals that did. One evaluator — known as “Judge #9” — gave a score of “0” to all hospital proposals, and a perfect score of 70 to Fortis.
According to Capital New York, Judge #9 was William Thompson Sr., a former judge who was asked by Baynes nearly a year ago to help mediate the LICH dispute.
SUNY and the state Department of Health had argued over a two-session hearing that the rankings should stand and the process of selling LICH should continue. On Friday, Justice Baynes agreed.
Court can’t ‘substitute its judgment for that of the evaluators’
In his decision, Justice Baynes asserted, “Counsel claimed that the process was flawed, yet did not submit a single Affidavit of a person with knowledge of the circumstances to say that.”
He continued, “The question now before this Court is whether it can and should interfere with the valuation process established by the Stipulation and applied via the RFP. The Court believes it cannot and should not. It is not the function of the Court to rewrite the terms of the carefully and painstakingly negotiated Stipulation. Nor is it the province of the Court to substitute its judgment for that of the evaluators.”
Justice Baynes echoed the language of lawyers for SUNY when he said an RFP (Request for Proposals) is different than a bid. “Unlike competitive bidding, where the lowest credible bidder automatically wins, an RFP is a more flexible alternative to competitive bidding . . . It falls well within the evaluators’ discretion to consider non-technical reasons for the scores they give.”
He added, “This process is controlled by the scores given by the evaluators which, absent a clear showing of misfeasance, based on admissible evidence. Conclusory allegations and conjecture, no matter how well-meaning, cannot form the basis of any action taken by the Court.
“Ultimately,” he wrote, “the decision to accept a particular Offer, as provided in the Stipulation, lies solely in the discretion of SUNY, subject to the implicit requirement that the parties negotiate in good faith.”
Justice Baynes noted that when SUNY accepts an offer, it will be subject to the approval of the New York State Comptroller’s Office. “Thereafter, the appropriate administrative remedies exist, if any are appropriate.”
Community groups disappointed but not totally surprised
Jeff Strabone, spokesperson for the Cobble Hill Association, one of the groups involved in the litigation, told the Brooklyn Eagle, “When an asthmatic man in Red Hook dies en route to a far hospital while your elected officials celebrate ‘continuity of care’, that’s when you know the jig is up. Every preventable death in South Brooklyn is now on the governor.”
“I’m disappointed by the judge’s ruling,” said Susan Raboy, spokesperson for Patients for LICH, an advocacy group not involved in this lawsuit. “I believe the voting was rigged and I feel that SUNY and Fortis are now going to do whatever they want to do.
“However,” she added, “the community will still fight for a full-service hospital, and now is the time for the mayor and the Health and Hospitals Corporation to step up and support us.”
One insider said he thought it odd that the judge said the community groups offered no evidence, considering they offered SUNY Senior Health Care Counsel Ruth Booher’s own statement, “without objection, as a party admission,” and then tried to call LICH ER physician Dr. Saul Melman to the stand — only to have the court refuse to hear his testimony.
Walden had offered a video of Ms. Booher explaining the requirements of the revised RFP to SUNY’s board of trustees. On the video Booher can be heard stating that if a proposal “doesn’t include an ER, intensive care unit, beds, you get your score lowered… If you include a 100-bed hospital, you get it increased.” This is the same argument the community groups made.
Dr. Melman, whose testimony was never heard, said, “Inscribed on the wall behind Judge Baynes’ bench are the words “Good law must necessarily mean good order.” Perhaps Judge Baynes is correct to say that it is not his duty to interfere with the terms of the RFP. However, over the last year and half SUNY Downstate repeatedly thumbed their noses at Judge Baynes’ multiple restraining orders against them as they continued to tighten their grip around the neck of LICH progressively choking the life out of it. As member of the technical evaluation committee, I was party to SUNY and DOH violating the settlement stipulation by explicitly misleading the evaluators to believe that full service hospital proposals were untenable which lead several evaluators to score full service proposals lower. In my opinion, Judge Baynes failed to keep SUNY in good order as it is his duty as a judge to do so and now a once thriving, vital humanitarian institution has been lost.”
Brooklyn Heights resident Trudy Wassner said, “Just as Assemblywoman Joan Millman said in February 2013 about SUNY and its promise to save LICH in 2011, ‘We were snookered.’ I don’t believe for a minute that this case was decided on its legal merits, rather state politics has been dictating all actions and decisions. Looks like we’ve been snookered again. Cute term, ‘snookered’ but people will die thanks to Governor Cuomo and his malfeasance.”
SUNY is currently negotiating with developer Fortis Property Group, which does not propose to operate a hospital at LICH. Attorneys for Fortis told Justice Baynes on Tuesday that their discussions with SUNY have been “fruitful.”
Eliminating the questioned rankings would have moved Prime Healthcare Foundation, the non-profit arm of a nationwide hospital chain, into negotiations with SUNY.
If Fortis is rejected for some reason by SUNY, as the first two bidders were, Prime would be next up. Fortis, however, is the first group SUNY chose to sell the LICH property to before the RFP was revised as a result of court action, and the state Department of Health has already conditionally approved a Certificate of Need for its medical partner NYU. NYU plans to operate an urgent care center and “stand-alone” ER somewhere on or near the site of the hospital.
LICH backers call the stand-alone ER “smoke and mirrors,” saying without a hospital to provide full service care, serious cases will still have to go farther in an emergency. ERs at the two closest hospitals are already filled to capacity.
“Free-standing ER does not mean continuity of care,” Raboy tweeted. “It means no care and no hospital. We still demand return of all care and a hospital.”