New Judge: Keep Beth Israel Open! For Now.

By Arthur Schwartz

As July ended and we rolled into August, it began to look like the fight to keep our only local hospital, Beth Israel, open was at an end. As we reported in Village View last month, the NY State Department of Health, on July 26, with Governor Hochul’s blessing, approved the closure. They did that over the incredibly well documented response from a coalition of health experts, neighborhood leaders and doctors, making it clear that the patient load at Beth Israel Hospital could not be “absorbed” elsewhere. Elsewhere is Bellevue Hospital at 1st Avenue and 28th Street, and NYU-Langone, at 1st Avenue at 31st Street.

But we still had a Temporary Restraining Order in place. We had a meeting with Judge Nicholas Moyne, who had helped keep the hospital open, set for August 8. We expected the Judge to proceed and rule on merits of the hundreds of pages of legal papers submitted by both sides. Instead, he told us that he thought we needed to start over, since the DOH approval created a whole new circumstance. He asked me, as lead counsel for the Plaintiffs, how long it would take me to file a new set of papers. I responded “August 13.” It was an enormous job.

However, come Monday, August 12, we got a notice that Judge Moyne had dismissed our case, and, with that dissolved the Temporary Restraining Order which had kept the hospital open. The legal team (me and co-counsel David Siffert and Sommer Omar) worked through the night and filed papers on August 13 seeking a new TRO. But for 36 hours we got no response from Judge Moyne. Then we heard that he wanted off the case. We wound up with a brand new Judge, Jeffrey Pearlman, who had recently been appointed by Governor Hochul. Our hearts sank. But on the night of August 15th, Judge Pearlman entered a new Temporary Restraining Order. And then, after a three-hour argument on August 15, he signed a Preliminary Injunction, keeping things in place until we finished litigating the issue. Arguments, after an exchange of briefs, and the filing of the DOH’s “Administrative Record,” will be held on October 9. So for the next six weeks, we still have a functioning hospital on 16th Street and 1st Avenue. And Mount Sinai wants to talk settlement. Maybe there is a deal to be made which keeps a hospital in our community.

Mount Sinai had argued that a stay of any sort would exacerbate an unsafe staffing situation (which they created in advance of the DOH approval). But we had a breakthrough. We submitted two affidavits from nurses on the inside, who in the past had been scared to speak out other than anonymously. One affidavit was from Beth Israel emergency room nurse Linda Charles, who disputed the description of this situation, and describes an emergency room seeing between 100 and 135 patients a day (which Mount Sinai has now admitted), operating at a far safer patient to nurse ratio than the two closest hospitals, Bellevue and NYU-Langone, as well as the overwhelmed emergency rooms in Mount Sinai Hospital itself, as well as its affiliates. That translates to somewhere between 36,500 and 49,000 emergency room patients who will have to fit into another already overwhelmed emergency room if this court allows Beth Israel to continue with its closure. Our second nurse affidavit, from Sharlene Waylon, described similar smooth, safe functioning in the operating departments. The Cath Lab and ICU are adequately staffed. We told the judge that if the situation was as dire as Mount Sinai has painted in filings since April, the Department of Health would have closed the hospital down.

What we learned is that in mid-July the Bellevue Emergency Room became so overloaded that ambulances were diverted to Beth Israel. Nurses called me and said they were functioning like a hospital again. So, while the executives presented the court with affidavits with concern about patient safety, the hospital, even with its limited staff, resumed serving the community again.

Mount Sinai paints a picture of a hospital which has been dragging down the entire Mount Sinai hospital system for years. But we have demonstrated, and most especially in the affidavit of economist, and Soho/Tribeca Democratic District Leader, Jeannine Kiely, that every one of the Mount Sinai hospitals in Manhattan has “lost” money, while that system grossed $23 billion during calendar year 2023. Kiely illustrates a history of a Beth Israel where Mount Sinai stripped important profit centers in order to “help” the finances at Beth Israel. Mount Sinai admits, in their filings in the prior lawsuit, that the construction of a new hospital on 13th Street, to replace the 16th Street campus, was approved on March 13, 2020, and that the pandemic required them to abandon that plan, as 600 beds were filled for the next two years. They admit that they announced a plan in 2021 to modernize Beth Israel, which they abandoned last year.

The New York State Constitution guarantees the right to healthcare, and requires the government to protect access to health care of all residents. The Health Department keeps stating in court that residents can’t dictate where that healthcare will be provided, and Mount Sinai argues that they can’t be compelled to provide healthcare to anyone. But, for now, Judge Pearlman has indicated that he is ready to challenge those arguments. He wants to know where all those ER patients are going to go. Mount Sinai has already eliminated Heart Surgery, Maternity, and Pediatric Surgery from our hospital. The fierce coalition fighting this closure just might make it happen.

Maybe Governor Hochul will wake up and address the needs of the 60,000 community residents who used Beth Israel as recently as 2022.