LICH wins in court yet again, by George Fiala

Last Friday, Judge Johnny L. Baynes ended a week of court hearings with lawyers from SUNY Downstate, The Dept of Health, the Trustees of the State University of NY, Nirav Shah, MD, in his capacity as Commission of the Board of Health, and John Williams – the defendants, and the NYS Nurses Association, 1199 SEIU, Concerned Physicians of LICH, and Carl Biers – the Plaintiffs, saying he was going back on vacation for a week and would be back today to announce his ruling.

At 6:30 this evening, across the street from the hospital, representatives of the Nurse’s Union came to inform their members, the press, and Councilmembers Brad Lander and Steve Levin, about the ruling.

It turns out Baynes didn’t issue a final decision. That was held in abeyance for the time being as all the parties are “engaged in ongoing good faith negotiations and hope to resolve the matter to their satisfaction,” according to the court papers. Political pressure, probably very strong political pressure from Governor Cuomo, also might have had something to do with it. Cuomo took three days from his upstate promotion of tourism to come to NYC, with no appearances scheduled. Speculation from this quarter is he might have paid a visit to his SUNY Board of Trustee underlings to figure out what to do – namely, how to save face and come to some sort of agreement that the public will accept.

The order commands SUNY Downstate to keep the hospital open, to the level it was a month ago, until an agreement is reached to the satisfaction of all the parties.

Specifically:

1. Nothing in this Order changes, mitigates, modifies or is in satisfaction of the requirements imposed upon the parties by any prior Order of this Court.

2. Nothing in this Order constitutes any finding of fact in these Actions or Proceedings, nor alters in any way any party’s rights concerning appeal of prior Orders of this Court; and

3. Subject to paragraph 4 below, the SUNY Defendents – Respondents shall take the following steps at Long Island College Hospital (LICH):

A – Immediately restore any services or staffing related to the provision of medical services discontinued or diminished on or after July 19, 2013, to the extent such services have been diminished; and

B – Immediately restore or repair any equipment related to the provision of medical services that were in operation as of July 19, 2013.

C – Immediately remove any guards other than those used by LICH in the ordinary course of business, unless otherwise needed for purposes of crowd control as deemed necessary to maintain orderly and safe health care services at LICH.

D – Permit the medical judgments and decisions of treating physicians to govern treatment decisions of patients at LICH.

E – Adequately staff and make available to patients all services referenced in the first bullet point of the NYS Department of Health (DOH) July 19,2013 letter to SUNY Downstate Medical Center President John Williams, MD – namely, laboratory, radiology, social work and pharmacy – for patients in the Emergency Departments (main, pediatric and psychiatric , Intensive Care Unit (ICU) (3rd Floor, Polack Building) and inpatient medical beds (including 5th Floor, Fuller Building);

F – Forthwith restore the Emergency Rooms, the ICU and the inpatient medical beds to the level of staffing and services available on July 19, 2013.

G – Allow in-patient surgeries that are deemed medically necessary by treating physicians, and for which medical resources and staff are available, to the extent such surgeries were permitted on July 19, 2013; and that said surgeries arise from emergency room treatment;

H – Issue notices retracting the August 9, 2013, letter informing patients of the impending closure of LICH clinics (the Aug 9 letter). By August 16, 2013, SUNY shall submit for the Court’s and Petitioners review the proposed text and format of such letter (the Retraction Letter). Upon approval of the Retraction Letter, or approval of the Retraction Letter with modifications, the Court deems appropriate, SUNY shall mail the Retraction Letter to all clinic patients, in the languages spoken by the respective patients, within two business days of the Court’s approval. SUNY shall disseminate to LICH staff, by email, the same information in its Retraction Letter. SUNY shall also post notices in all clinic sites, in 36-point font, retracting the Aug. 9 Letter and informing patiens that the LICH clinics are not slated for closure unless and until the Court deems otherwise. SUNY shall also prominently post the Retraction Letter on the SUNY and LICH websites.

The order goes on to say that SUNY’s Chief Medical Officer, who is Michael Lucchesi, is responsible for carrying out these orders. This is the doctor who has refused multiple requests from LICH doctors and nurses to carry out their medical duties. He how called and brow beaten patients, trying to get them to agree to be transferred out of LICH. He can still object to following these orders, but he can only object to a court appointed Ombudsman. The ombudsman is responsible for dealing with requests from the Dept of Health or Lucchesi to go against any of the above points. This ombudsman will have the authority to request further information, and will then go back to Baynes to see if any action is warranted. This means that no unilateral action by SUNY is possible, at least under this court order.

The big victory here is that this is a court order, not a temporary restraining order. It gives specific instructions to SUNY as to what they can or cannot do, and it is enforced by the court through the ombudsman. The NYSNA officials stressed to their workers the importance of documentation of any transgressions. These will be written up and passed on to the lawyers and presented to the court – giving ammunition to the contempt case, which was not discussed in this order, and is still ongoing. In addition to this leverage, the DA is maintaining their investigation of SUNY. They are being investigated on charges of racketeering – a serious charge normally used against organized crime.

What this order means for LICH employees is that all of them put on administrative leave last month will be invited back to work. Eliza urged that all workers show up Monday, so as not to give SUNY any excuse to countermand this order. It also pretty much guarantees jobs through the end of the year, as new Warn notices cannot be sent out before the middle of September. The Warn notices allow SUNY to stop paying salaries after 90 days.

August 17th update – just back from the hospital. There are still guards there, but less outside, at least. The press wasn’t allowed in the hospital, at least this reporter wasn’t –  on order from the head of security.