A legal fight over Northside Hospital’s plan to establish inpatient radiation therapy services in Gwinnett County intensified this week as Georgia Supreme Court justices suggested the Georgia Department of Community Health may have botched its approval of the project.
Northside was granted a certificate of need in June 2021 to build a new cancer treatment center at its hospital in Lawrenceville, but that decision by the department’s-then commissioner was challenged by rival radiation therapy providers.
During a hearing Tuesday, several justices questioned whether the community health commissioner properly overturned the findings of a department officer when determining that Northside’s cancer patients in Gwinnett County experienced atypical barriers to radiation therapy, warranting the new center.
Under Georgia law, the community health commissioner must detail why they reject any findings of a department officer who has weighed the evidence in relation to a certificate of need. The department officer who had considered Northside’s project determined that it didn’t qualify for a certificate.
“You can only reject a finding of fact if it’s not supported by any competent evidence and then you have to state so with particularity,” Chief Justice Michael P. Boggs said. “Many of the commissioner’s rejections here do not state with particularity, they are simply conclusory in saying that there was a lack of substantial evidence.”
The community health commissioner set aside 42 of the department officer’s findings regarding Northside’s proposed cancer center, presiding Justice Nels S.D. Peterson noted. He asked an attorney for Northside whether the commissioner was correct and within their authority to do so.
Robert S. Highsmith Jr., representing Northside, responded that some of the commissioner’s decisions were easier to understand than others, but ultimately all were proper.
“In every case, the commissioner says, ‘Here’s why I’m rejecting this evidence,’” Hightower said.
The rival providers seeking to void Northside’s certificate of need are Northeast Georgia Medical Center, RCOG Cancer Centers, and Vantage Cancer Centers of Georgia.
David B. Darden, an attorney for Northeast Georgia Medical Center, said there was a “boatload” of evidence supporting the department officer’s decision to deny Northside’s certificate application.
“There’s not a single place in the commissioner’s order where he addressed the evidence at all,” Darden said.
Attorney Charles Thimmesch, who argued on behalf of the Georgia Department of Community Health, said the commissioner correctly considered the needs of Northside’s cancer patients in Gwinnett County and found the new radiation center was warranted. Though the commissioner’s decision was “imprecise” in places, it should be upheld, Thimmesch said.
“The commissioner concluded that the needs of the patients, their comfort, their medical fragility, the cost to transport them for regimented radiation treatment, and the involvement of clinical staff to transport the patients all presented an atypical barrier to quality care,” Thimmesch said.
Justice Charles J. Bethel pointed out that the commissioner’s decision did not fully explain why the department officer’s findings were incorrect. And Justice Verda M. Colvin said some of the commissioner’s objections to the officer’s findings were generalized statements.
Keith R. Blackwell, an attorney for RCOG Cancer Centers and Vantage Cancer Centers of Georgia, said the community health commissioner could be ordered to reconsider Northside’s application for a certificate of need. He said a problem with the commissioner’s office “very aggressively rejecting fact findings” emerged around 2020, when Northside lodged its application.
“The commissioner wiped out so many facts,” Blackwell said. “A lot was done wrong in this case.”
Boggs told the parties at the end of the hearing that the court would issue a decision as soon as possible.
Northside claimed its hospitalized cancer patients in Gwinnett County need on-site radiation therapy so they don’t have to be transported to other locations. It argued that Gwinnett County, with almost 1 million people, was large enough to accommodate the new service without hurting existing radiation therapy providers in the area.
In October 2022, the Georgia Court of Appeals ruled in Northside’s favor, noting that there were no in-hospital radiation therapy services in Gwinnett County.
Case filings show that in April, Northside purchased two cancer treatment facilities from RCOG Cancer Centers and Vantage Cancer Centers of Georgia within a mile of Northside Hospital Gwinnett, which is the largest provider of certain inpatient cancer services in Gwinnett County.
Northside did not immediately respond Tuesday to questions about its Gwinnett County radiation therapy project.
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