Blake Medical's trauma center in Bradenton may face more litigation

The News Service of FloridaMay 15, 2013 

TALLAHASSEE -- In the latest round in a two-year legal battle, a state appeals court heard arguments in a dispute that stems from the Florida Department of Health allowing Blake Medical Center in Bradenton and two others to operate trauma centers.

The arguments before the 1st District Court of Appeal focused Tuesday on an important, though relatively narrow, issue: whether four hospitals in the Tampa Bay and Jacksonville areas have the legal "standing" to challenge approvals of trauma centers that opened in 2011 at hospitals affiliated with the HCA health-care chain.

But if such standing is granted, it likely would lead to more litigation that could threaten trauma centers at the HCA-affiliated Blake and Regional Medical Center Bayonet Point in Pasco County. The third HCA hospital, Orange Park Medical Center in Clay County, opened a trauma center but was later required to shut it down.

The four challengers -- Tampa General Hospital, St. Joseph's Hospital in Tampa, Bayfront Medical Center in St. Petersburg and Shands Jacksonville Medical Center -- have long operated trauma centers and argue they would be hurt by the new trauma facilities.

They won an earlier round in the fight when an administrative law judge and the appeals court found that the Department of Health used an invalid rule in reviewing proposed trauma centers. But the agency allowed the Blake, Bayonet Point and Orange Park trauma centers to open in 2011 and later ruled that the other hospitals did not have standing to mount an additional challenge.

Jeffrey Frehn, an attorney for Tampa General and Bayfront, told a three-judge panel Tuesday that the new facilities would worsen a shortage of trauma physicians and reduce the volume of patients at the longstanding trauma centers.

"Volume is necessary to maintain (trauma staff) skills and is relevant to quality of care,'' Frehn said.

But Stephen Ecenia, an attorney for the HCA-affiliated hospitals, said state law doesn't provide a "protectionist system" for existing trauma centers. Similarly, Jennifer Tschetter, general counsel for the Department of Health, said the opponents were making economic arguments against the new trauma centers.

"They all boil down to money,'' she said.

It is unclear when the appeals court will rule. But if the judges decide that the Tampa Bay and Jacksonville-area hospitals have standing, the dispute is expected to go to the state Division of Administrative Hearings. An administrative law judge would hold a hearing about the department's decisions allowing the new trauma centers to operate.

Judge James Wolf questioned Tschetter about the agency's position and appeared to suggest that the four challengers have a "substantial interest" in the issue.

"If Tampa General or Shands goes under, is that going to be good for the patients?" he asked at one point.

But Tschetter said new trauma centers that meet state standards should be approved, without having to "ask the neighbor" about the financial impact.

Approval of new trauma centers has become a major issue in the state's hospital industry and spurred a debate during this year's legislative session. In the end, lawmakers approved a relatively modest plan that could help clear the way for a new trauma center at Fort Walton Beach Medical Center, another HCA-affiliated hospital that has sought approval in the past for a trauma facility.

Also, the Department of Health is working on a new rule for the approval of trauma centers. Meanwhile, Orange Park Medical Center is seeking a separate administrative hearing about a department decision early this year to shut down its trauma center.

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