Autauga judge reviews Shelby Baptist open heart surgery case
Published 12:00 am Wednesday, May 26, 2004
Pounding her steno machine furiously, an Autauga County court reporter kept up a frantic pace last Monday recording the impassioned words of attorney Frank C. &uot;Butch&uot; Ellis Jr.
Ellis was arguing for the reversal of a decision by the State Health and Planning Development Agency which denied Shelby Baptist Medical Center the right to perform open heart surgery and certain other procedures, before Autauga County Circuit Court Judge Ben A. Fuller in Prattville.
When the Shelby County attorney had finished speaking, Judge Fuller ordered a 10 minute recess, stating that the court reporter needed a rest.
Fuller would take the matter under advisement to render a decision, but the hearing featured widely differing views between the parties as to why the reversal should be granted or denied.
Ellis was among a group of attorneys representing Shelby Baptist arguing for the right of the hospital to provide open heart surgery and certain cardiac catheterization (angioplasty).
&uot;I don’t give a hoot&uot; about the affect of a certificate of need on (existing) open heart surgery programs, Ellis said.
He said he wanted a finding in favor of the certificate &uot;for the people of Shelby County.&uot;
Ellis said of current travel by heart patients to Brookwood Hospital, &uot;People are not used to going up that road. Traffic is horrendous. This is about the people of Shelby County and Chilton county …&uot;
Ellis also said if the denial of the certificate of need for Shelby Baptist shouldn’t be overturned, &uot;There is no need ever to have appeals of the Certificate of Need Board.&uot;
Ellis said the 45 percent of patients Brookwood claims it will lose if the certificate of need is granted come from a different market area.
He cited some examples of the need for the procedures at Shelby Baptist such as the death of 52-year-old who reportedly died traveling from Shelby to Birmingham.
According to the brief filed by Ellis, Hewitt L. &uot;Sonny&uot; Conville, Ann Huckstep and Laurence McDuff, Shelby Baptist is asking the court to reverse an &uot;arbitrary ruling&uot; of SHPDA and order the agency to grant the hospital’s certificate of need for heart services.
According to the brief, &uot;The open heart program will save countless lives, and ease the burdens of some 220,000 citizens for whom Shelby Baptist is the closest hospital. SHPDA has already approved open heart programs for seven other counties with smaller populations than Shelby including Houston, Etowah, Lee Lauderdale, Calhoun and Morgan Counties.
&uot;Inexplicably, in this case SHPDA’s Con Review Board arbitrarily reversed the findings of the Administrative Law Judge (ALJ) and denied Shelby and Chilton County residents the same access to live-saving services.&uot;
Also stated in the brief, &uot;The board failed to clearly articulate any reasons for reversing the ALJ’s order, and simply issued a vague statement that ‘the board differs with the conclusions reached by the Hearing Officer as to need and finds that the project should be denied.&uot;’
Representing Brookwood Medical Center were John T. Mooresmith, John C. Morrow, Cary Tynes Wahlheim, Kermit L. Kendrick, James W. Fuhrmesister. And representing the State Health Planning Agency was attorney Keith Miller.
Morrow argued that the board disagreed with the ALJ (Administrative Law Judge) in that it did not see the need for an open heart surgery program at Shelby Baptist and because of the negative impact on open heart surgery providers.
He said the impact was not only financial but would also affect the quality of services as well.
Morrow also pointed out that Brookwood has three operating rooms but is using only two of them now. He said there is &uot;no need to have more 20 miles down the road.&uot;
Morrow said this case is not about people driving in traffic. He said a doctor who would be handling open heart surgery at Shelby Baptist will only be at the hospital one day per week.
&uot;I don’t know if the public knows the doctor who is going to operate on you is in Birmingham,&uot; he said.
He also said there was no evidence of anybody who died because they didn’t have open heart procedures at Shelby Baptist.
In its brief to the court, responding on behalf of Brookwood Medical Center, attorneys argued, &uot;Certainly, community support is a factor to be considered upon review of a project. However, just as a hospital’s institutional desire to offer a new service does not equate to a community need for such services, a community’s desire to have complex tertiary care services offered by the local community hospital does not equate to a ‘community need’ for those services under CON Law and the fundamental tenets of health planning upon which the law is based.&uot;
Conwill said of the case before Judge Fuller, &uot;It is all about money… No reasonable person could look at this and say (Shelby Baptist) shouldn’t have the (open heart) program there.&uot;
Conwill said the 280 corridor patients would go to Brookwood because it is closer.
And he said opposed to a 45 percent loss of patients, &uot;I dare say they would not lose 15 percent.&uot;
Judge Fuller said he would find what the standard
is and that he would make the decision on the case in the privacy of his office.
Fuller agreed with Miller that for Shelby Baptist, &uot;It is a very high burden of proof.&uot;
McDuff said he felt the judge understood the issues well and that the ruling against Shelby Baptist will be reversed