Of the nine New York hospitals targeted for closure by a commission created by Governor Pataki, only three are moving forward with shutting their doors six months after the recommendations were issued.

While no one expected hospitals to acquiesce without a fight, officials interviewed said the legal battles taken up by hospitals threatened with closure could take years to make their way through the courts.

In New York City, where five hospitals were sent to the chopping block, three hospitals are challenging the recommendations to close, including Cabrini Medical Center in Manhattan, Parkway Hospital in Queens, and Westchester Square Medical Center in the Bronx. “We plan to take this to the highest court if necessary,” an attorney representing Westchester Square, Amanda Masters, said. She recently filed an appeal against a judge’s ruling that the hospital close.

The state’s Department of Health, which is overseeing the implementation of the commission’s recommendation, said at least one hospital has acquiesced: Manhattan Eye, Ear and Throat Hospital has eliminated all 150 of its inpatient beds and merged with Lenox Hill Hospital.

The Commission on Health Care Facilities in the 21st Century, otherwise known as the Berger Commission, in November recommended the closure of nine hospitals and said 48 others throughout New York should be reconfigured, a move that would eliminate some 4,200 beds statewide. In New York City, the commission recommended closing five hospitals, including Victory Memorial Hospital in Brooklyn, Parkway Hospital, Westchester Square Medical Center, Cabrini Medical Center, and St. Vincent’s Midtown.

Hospitals have until June 2008 to implement the commission’s recommendations, and last month they filed their first quarterly progress reports to the health department. Hospitals slated for closure must file plans for doing so by September 30.

A spokeswoman said the health department has not received any closure plans from city hospitals. Upon receiving them, she said the department would render a decision within 90 days. “It is in the interest of the health department to do a relatively quick turnaround,” the spokeswoman, Claudia Hutton, said. Institutions with court-ordered stays would not be penalized, she said.

Ms. Hutton declined to comment on existing lawsuits, but said: “Obviously the Legislature, in passing the law, felt that the law was legal.”
To date, three New York City hospitals slated for closure are involved in litigation.

In late December, Cabrini Medical Center filed a lawsuit in New York State Supreme Court asking for a stay of the closing order. The suit argues that the commission’s creation and its proceedings were unconstitutional and violated the open meetings law.

A lawyer representing Cabrini, Leonard Rosenberg, said he estimated the decision could be made within a month.

Lawyers fighting the recommendation to close Westchester Square are appealing a decision handed down in March by a Bronx Supreme Court judge, who dismissed their claim that the Berger Commission itself was unconstitutional. In January, a temporary restraining order was issued to keep the hospital open.

Parkway Hospital is challenging the recommendation to close on the basis that it is a proprietary hospital and that it qualifies for an automatic stay based on its bankruptcy status. A lawyer representing the hospital, Timothy Walsh, said its lawsuit was in the beginning stages. The dismissal of the Westchester Square case “has not affected” the Parkway case, he said.

Parkway Hospital officials said they hope legislation being considered by the New York State Senate and Assembly, which recommend the hospital stay open, will become law. “We have no intention of closing,” a hospital spokesman, Fred Stewart, said.

Some said legal determinations could take years.

“In my mind, the process has really just begun,” a health care analyst at the Manhattan Institute’s Empire Center for New York State Policy, Tarren Bragdon, said. “I think a lot of people thought of the recommendations of the Berger Commission as the end of this long process, and what we’re seeing is that it’s just the beginning.”

Mr. Bragdon said the legal battles coincide with a concern over the commission’s basic premise for achieving health care savings.

“I think many people significantly underestimated the reaction that would take place from hospitals directly impacted,” he said. “A lot of people assumed that the state had the power to make these hospitals go away, and what we’re seeing is that that is still really a question.”
Officials who served on the commission said the court battle is no surprise.

“The thrilled folks are trying to move ahead as quickly as possible, the middle group is moving cautiously, and the third group is digging in its heels to see if there’s a way to change the outcome,” the commission’s executive director, David Sandman, said.

So far, he said, two upstate cases and the Westchester Square case have been effectively dismissed. “Guessing what a judge might do is a fool’s game,” he said. “But thus far, the state is gratified with the judgments.”

At least one official at the 243-bed Victory Memorial Hospital in Brooklyn, which is slated for closure, called the commission’s recommendations a “fait accompli.”

“The decision, obviously, we don’t feel was a correct one, but we’re complying,” the hospital’s assistant administrator, Rob DeFranco, said. The Health Department is reviewing letters of intent from three institutions that have expressed interest in sponsoring the hospital, he said. In the interim, the hospital, which filed for bankruptcy in November, is reducing costs by staffing only 120 beds and by cutting its staff to 800 from 1,000.

A spokesman for St. Vincent’s Midtown, the former St. Clare’s, said the hospital also believes the commission’s recommendations were “misguided,” given pre-existing plans to streamline services with St. Vincent’s Manhattan, although it is moving forward.

For at least one hospital slated for reconfiguration, a desire to implement the changes has propelled plans forward. The president and CEO of Beth Israel Medical Center, David Shulkin, said the hospital filed plans in March to convert 80 detoxification beds on its Petrie campus into psychiatric beds. Currently, architectural plans are being drawn up as the hospital awaits state approval. Describing an overflowing psychiatric unit and a need to expand, Dr. Shulkin said, “This was actually good news and helpful to us, which is sort of a strange reaction from many hospitals to the Berger report.”