Hospital Sues Over Closure Order and Earns a Reprieve

One of nine hospitals ordered closed last year by a statewide commission, Westchester Square Medical Center, got a temporary reprieve yesterday when a Supreme Court judge blocked the Spitzer administration from shutting down the Bronx facility.

The lawsuit comes in response to the recommendations ordered by a commission convened by Governor Pataki before he left office. The Bronx hospital was one of nine hospitals and seven nursing homes the commission ordered closed.

Yesterday's lawsuit was filed by New York Lawyers for the Public Interest and the law firm Chadbourne & Parke on behalf of a patient and a Bronx senior center director, whose members rely on the hospital.

It is one of several suits filed in the past month that attempt to stop a hospital closure or restructuring and comes a week after Cabrini Medical Center in Manhattan filed its own suit.

The latest suit claims the state Legislature violated the patients' constitutional rights by allowing an unelected commission "unfettered authority" to reshape the state's health care system, the legal papers said.

The "unelected commission" named in the suit is called the New York State Commission on Health Care Facilities in the 21st Century, but has become known as the Berger Commission because its chairman is Stephen Berger.

Mr. Pataki charged the task force with "right-sizing" the state's ailing hospitals and nursing homes, many of which have been bleeding money and struggling to fill all of their beds.

A state Supreme Court justice, Mary Ann Brigantti-Hughes, gave the state attorney general — who is arguing the state's position that the closures are necessary — 15 days to submit legal briefs before a hearing on January 29.

A spokesman for the state health department, Marc Carey, said agency officials have not created a timeline for the closure of Westchester Square yet. He said no closing procedures were slated for January.

The president of the hospital, Alan Kopman, said he had not yet received any orders from the state regarding the proposed closure.

Mr. Carey declined to comment, saying the department's lawyers have not reviewed the Bronx judge's decision.

A spokeswoman for Governor Spitzer didn't return phone calls for comment. Mr. Spitzer has said publicly that he will endorse the recommendations without change.

Westchester Square is the latest hospital to ask a judge to stop the Berger Commission's recommendations, which have roiled patients, local communities, lawmakers, and hospital administrators.

Cabrini's suit argued that the commission deprived the 115-year-old Catholic hospital of its constitutional due process rights by recommending the closure.

Community Hospital in Dobbs Ferry sued last month on the grounds that the commission secretly deliberated, in violation of the state open-meetings law. St. Joseph's Hospital in upstate New York sued on the same grounds.

Yesterday's court injunction immunizes Westchester Square from closure until later this month. But the hospital, which serves the Soundview, Morris Park, and Parkchester sections of the Bronx, faces an uncertain future.

Like several other financially fragile institutions slated to be shut down, Westchester Square filed for federal bankruptcy protection last year. Mr. Kopman said the bankruptcy filing should protect the facility from the state's padlocks — a belief some health care analysts dispute.

Mr. Kopman told The New York Sun he hopes yesterday's suit and injunction will keep open the doors of the 78-year-old hospital.

"How it will play out I don't know," Mr. Kopman said. "Maybe it will give the Legislature the time to rethink … or tweak" the legislation that gave the commission its authority, he said.

With roughly 25,000 annual emergency room visits to Westchester Square's emergency room, Mr. Kopman said his hospital is vital to the Bronx. "We think there's really substantial community support for this hospital," he said.

Changes to the closure plan would have required action by the Legislature, but the body allowed the proposals to become law on January 1.