June 30, 2009 – Presiding Superior Court Judge Maria M. Cabret used the last day of her court life to deny the Roy L. Schneider Hospital a writ of review in the contentious ambulatory surgical center controversy that has been much in the news over the last two years.
In 2004, a group of physicians began touting their plan to build a private ambulatory surgical center on St. Thomas. They applied for a Certificate of Need from the Health Department, which was required in order to go forward with the plan.
The idea immediately raised the ire of some community members, but none more so than Schneider Chief Executive Officer Rodney Miller.
Miller testified before the Legislature in March 2004 that if the project were allowed to go forward it would have a "devastating" affect on the hospital, which is public and therefore required to treat everyone who comes there regardless of their ability to pay.
Not so with the surgical center. Miller and others believe the center would attract the paying and insured customers, leaving Schneider to handle the others, eventually leaving the hospital in dire financial straits.
After Health Commissioner Darlene Carty approved the certificate of need, the hospital's governing board decided to appeal the decision, which they did in January 2005, suing the Health Department, Carty and St. Thomas Ambulatory Surgical Center LLC. (See "Hospital Sues Over Health Commissioner's Decision").
In September the parties had their day in Cabret's court.
Henry Feuerzeig, representing the hospital, said that through a writ of review the hospital had a right of appeal, because it was an "aggrieved party" with no other avenue of appeal.
Jospeh B. Arellano, arguing on behalf of the St. Thomas Ambulatory Surgical Center, said the hospital was not an "aggrieved party." He cited law specifically related to the Certificate of Need process. That law appeared to be written to give only the party who is applying for a Certificate of Need the right to appeal a ruling by a health department. (See "Certificate of Need Debate Had Its Day in Court").
In her memorandum opinion filed on Friday, Cabret saw it Arellano's way, writing that under the law only a party to a proceeding can be considered "aggrieved." She said "only actual litigants are permitted to petition the court for the review of 'any proceeding before or by any officer, board, commission, authority or tribunal.'"
Cabret said that by definition the hospital was excluded from being considered an aggrieved party or person. She said the hospital and the board were "mere participants."
"Where the Legislature decided that the interests of aggrieved persons were sufficiently compelling to permit a large pool of challengers, allowance for broader appellate review have already been made," she said. However, Cabret wrote,"This is not one of those situations."
Along with Arellano, attorneys David Bornn and Derek M. Hodge also served as counsel for the ambulatory center. Douglas Juergens represented the Health Department.
No one involved in the case could be reached for comment Friday night.
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