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Georgia Supreme Court reverses Atlanta hospital ruling

The decision allows an Atlanta hospital group to go forward with its off-campus surgical center

ATLANTA — In rulings announced today, the Georgia Supreme Court has reversed a lower court ruling that was preventing Kennestone Hospital from building a new outpatient surgical center in East Cobb County. The project was opposed by Northside Hospital.

In a unanimous decision written by Justice Harold Melton, the high court has reversed a Georgia Court of Appeals decision that denied Kennestone Hospital the Certificate of Need that is required for it to build the center. The plan now may go forward.

According to a release from the high court, Kennestone, a subsidiary of WellStar Health System Inc., operates two acute-care hospitals in Cobb County: WellStar Kennestone Hospital, a 633-bed hospital, and WellStar Windy Hill Hospital, a 115-bed long-term care hospital. Both are located in Marietta. Northside Hospital Inc. operates two acute-care hospitals located in Atlanta and Alpharetta.

In 2010, Kennestone submitted an application for a Certificate of Need to the Georgia Department of Community Health to develop an ambulatory surgery center in Marietta, which would be called East Cobb Surgery Center. Under Georgia law, a certificate, known as a CON, is required before a new health care facility can be developed to ensure that health care services are “provided in a manner that avoids unnecessary duplication of services, that is cost effective, and that is compatible with the health care needs of the various areas and populations of the state.”

Kennestone proposed locating its surgical center about seven miles from WellStar Kennestone and about eight miles from WellStar Windy Hill Hospital. It its application, it said the surgical center would be hospital-based, operate as a department of Windy Hill Hospital, and result in the transfer of three operating rooms from Windy Hill Hospital to the new location. Kennestone identified the center’s primary service area as East Cobb County with a secondary service area that included the rest of Cobb County plus Cherokee, Bartow, and Paulding counties.

Northside Hospital, which is located about eight miles from the proposed surgical center and whose primary service area would overlap with the new surgical center, opposed the state granting the CON to Kennestone.

In September 2010, the DCH gave initial approval to Kennestone’s application for a Certificate of Need to develop the ambulatory surgery center in Cobb County. Under the Rule’s provision for a “case-by-case determination,” the DCH determined the center would be “part of a hospital” and therefore subject to less stringent criteria and a less stringent review by the DCH than if it were a free-standing center.

Northside’s appeal to the DCH commissioner failed, so it went to Fulton County Superior Court, where a judge reversed the DCH decision, saying the “case-by-case” language in the CON rule was “unconstitutionally vague.” That ruling was upheld by the Appeals Court.

DCH and Kennestone appealed to the state Supreme Court, which agreed to review the case to determine whether the Court of Appeals was wrong in concluding that the rule was unconstitutionally vague.

In its opinion, the high court found that “contrary to Northside’s contentions, the Rule is not unconstitutionally vague on its face, and the Court of Appeals was incorrect to conclude otherwise.”

Northside argued that the last sentence of the Rule was unconstitutionally vague because it did not provide fair notice or sufficient guidance to determine when an ambulatory surgery service will be considered “part of a hospital.”

“We disagree,” the opinion says.

In other cases, the Supreme Court:

— In a 5-to-2 decision, ruled in favor of a psychiatrist of a young man who killed himself.

The high court has reversed a Cobb County court ruling and concluded that under Georgia law, the psychiatrist is not required to hand over all his treatment records to the young man’s parents. The parents had sought the records to determine whether they should sue the psychiatrist for malpractice and wrongful death.

— Unanimously upheld a Paulding County court’s validation of a $3.6 million bond to fund the expansion of a taxiway at the Paulding County Airport.

The purpose of the expansion is to accommodate commercial passenger jets, and residents who opposed a second commercial airport in the metro Atlanta area had appealed the ruling on several grounds, including their contention that the contract between Paulding County and the Airport Authority was an unenforceable intergovernmental agreement. The court disagreed.

— Unanimously ruled in favor of a Cherokee County high school teacher charged with failing to report that the school wrestling coach was having sex with a former 16-year-old student.

The court has reversed a lower court’s refusal to drop criminal charges against the teacher and ruled that under Georgia statutory law, a teacher’s obligation to report child abuse — as well as the obligation of other mandatory reporters — is limited to children to whom they “attend.”

— Unanimously upheld the murder conviction and sentence to life in prison without parole of Luis Alberto Porras for the high-profile murder of Jameelah Qureshi, a mother of four who was engaged to a DeKalb County police sergeant.

— In a 5-to-2 decision, has upheld a Gwinnett County judge’s refusal to suppress evidence of marijuana found in a woman’s car during a traffic stop when her case goes to trial.

— Unanimously upheld as constitutional the state’s methamphetamine trafficking statute that carries a mandatory minimum punishment of 10 years in prison and a fine of $200,000 for an amount of less than 200 grams.

— Upheld convictions and life sentences in murder cases involving DeVarryl Batten, Spalding County; Donterrius Johnson, Lowndes County (The court ruled Johnson was improperly sentenced on the aggravated assault and armed robbery convictions underlying his felony murder convictions, and it has thrown them out), and Orville Francisco Rivera, Cobb County.