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Case Against Ambulatory Center Moving Forward


April 13, 2005 – In the latest development in the battle over a proposed ambulatory surgical center on St. Thomas, Superior Court Presiding Judge Maria Cabret signed a two-week delay Wednesday allowing defense attorneys until April 27 to submit supporting documents in the case.
The hospital filed a petition for a writ of review in Superior Court Jan. 11 asking for a judicial review of Health Commissioner Darlene Carty's Nov. 26 decision to grant a certificate of need for a proposed ambulatory surgical center.
The petition claims Carty failed to follow the V. I. Code, which requires official rules and regulations governing the certificate of need process. "Hospital Sues Over Health Commissioner's Decision")
Hospital officials have vehemently opposed the facility since it was proposed late in 2003 by a group of private physicians. The hospital officers say the center would be financially devastating to the hospital's financial viability.
The highly-charged battle has been waged for more than a year on the airwaves, in full-page ads in a local newspaper, and on the Senate floor. The hospital contends the center would take business and, therefore, critical funds away from the hospital. The ASC doctors deny this, and say it would give the public a choice in facilities and would not injure the hospital's revenues. "Senators Hear Surgery Center Debate."
Ambulatory Surgical Center attorney Joseph B. Arellano on March 30 asked the court for a three-week delay to permit late filing of a Memorandum of Law to support a Motion to Dismiss filed on the same day, because of "a variety of pressing personal and business problems" in the "wind up" of his former law firm.
Cabret's office said Wednesday that the judge had "deemed the matter conceded," since the opposing petitioners had not objected to the delay. The case was moved to St. Croix in February after Superior Court Judges Rhys Hodge, Brenda Hollar and Audrey Thomas recused themselves from the case. Superior Court Judge Leon Kendall cannot hear the case as he is assigned to the court's Family Division.
The judge's office said she has not yet set a date for a hearing, nor has she announced if it would be heard on St. Thomas or St. Croix.
Arellano said Wednesday that the jurisdiction would be of no consequence because the matter will be decided by a judge, not a jury. He said, "It is in the nature of an appellate proceeding in that it is decided on legal matters and the record as it stands." He added, "I am looking forward to moving the case along and getting it resolved."
Amos Carty, Schneider hospital legal counsel and chief operating officer, is also anxious for the matter to proceed. He said, "At this stage of the game, since the case was filed in January, we have no objection to another two weeks – we just want to get it heard."
Carty also speaking Wednesday said there was no point in commenting on the case until he had seen the Memorandum supporting the 11 objections raised in the Motion to Dismiss.
The hospital has retained the firm of Dudley, Topper and Feuerzeig to represent it in the case.
Attorney Henry Feuerzeig, agreed with Carty. "We don't believe at this stage there is any merit in commenting in any detail until we see the reasoning for their conclusions," he said.
Attorney Carty had expressed doubt in December over the legality of the process the committee used. "Based on initial review," he said, "the fact that the rules and regulations appear in draft form suggests to me that they have not been promulgated pursuant to V.I. Law. It does not appear that the governor has approved the rules and regulations, nor is it apparent that they were submitted to the Legislature." Subsequently the hospital filed its suit.
The doctor's group, which started out with nine, is now down to five. They are: Dr. Byron Biscoe, Dr. Horace Griffith, Dr. Sonia Taylor Griffith, Dr. Derrick Jones and Dr. Catherine Kean. Biscoe is the group's chairman.
The original group included Dr. Jeffrey Chase, Dr. Derrick Jones, Dr. Francesco Isolani, Dr. Michael Savage, and Dr. Adam Shapiro, all of whom have dropped out.
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