Fred Mogul, Reporter, WNYC News
Fred Mogul has been covering healthcare and medicine for WNYC since 2002.
A Brooklyn judge is attempting to restore service at Long Island College Hospital by reversing its transfer, two years ago, from Continuum —a Manhattan-based hospital network—to the State University of New York.
SUNY has been trying to close LICH for months. Supporters have been fighting the shutdown in court — an effort that has kept the doors open, but just barely. Almost all patients, and many staff members, have left LICH.
The implications of the 8-page legal decision are not immediately clear.
In the ruling, Justice Carolyn Demarest wrote that SUNY has not abided by the terms of the 2011 transfer, so LICH should go back to Continuum. Continuum issued a statement saying it, quote, "cannot reassume management of LICH."
Demarest wrote in language that was deeply personal and highly critical of SUNY's administration. She said she had visited LICH in the week before the ruling and seen ambulances "containing persons in critical need" turned away — an act she called "a travesty."
"I have been increasingly concerned as to the propriety of my own order granting approval of the transfer of LICH's assets to SUNY Downstate in light of Downstate's apparent lack of stewardship over those assets," she wrote. "I have determined that I have a legal and moral responsibility to correct my earlier error and hereby render the following decision sua sponte" [of my own accord, and without formal prompting from another party].
SUNY, meanwhile, said it has been trying to find another operator to take over the troubled hospital, but so far has not located anyone.
"The facts are that when SUNY acquired Long Island College Hospital it was done with the best of intentions; save a hospital that was on the verge of closure, grow the struggling Downstate enterprise as a strategy to survive, and provide additional clinical training opportunities for our students," wrote public relations representative Robert Bellafiore, in an email. "SUNY has poured millions of dollars into LICH in an attempt to reverse nearly two decades of financial losses. Unfortunately, SUNY and LICH became victims of the daunting realities of Brooklyn's health care delivery landscape. We are disappointed it did not work, but it was not for lack of effort."
Pepperdine Law School Professor Craig Garner, a former hospital CEO who writes about hospital closures and mergers, says it is not clear how Demarest can unwind the deal at this late stage.
"We’re talking about going back in time and making it void, as if it had never occurred, and that’s very bizarre," Garner said.
Garner says state health authorities generally regulate hospitals and federal bankruptcy courts generally oversee the disposal of their assets.
NYU Professor Harvey Dale also said Demarest appears to be overstepping her judicial authority.
"I don’t know how the judge gets jurisdiction over all these people, potentially against their will, and without a hearing and without the opportunity for the various parties to be heard," Dale said. "It seems to me very strange."
Dale said even if Justice Demarest does not have legal precedent on her side, she could be trying to force the different sides to come together and find a way to keep LICH open. But Dale says that role usually falls to a governor, mayor or health commissioner – not a judge.
Demarest called for a meeting among the different parties in her chambers in the state courthouse in Brooklyn on Thursday "to address the orderly and expeditious return of assets to LICH and the future operation of LICH as a hospital."