Beth Israel Hospital Awaits Court Decision

By Arthur Schwartz

City lawmakers and health care advocates protest Mount Sinai’s decision to close Beth Israel hospital. Photo by Gerardo Romo/NYC Council Media Unit.

On October 31, a group of community representatives, led by the Community Coalition to Save Beth Israel Hospital (BI)  and the NY Eye and Ear Infirmary (NYEEI), faced off in State Supreme Court against Mount Sinai Hospital and the NY State Department of Health (who AG Tish James refused to represent), in front of Judge Jeffrey H. Pearlman. In August Pearlman renewed the Temporary Restraining Order which had been in place since February stopping Beth Israel from closing or further downsizing.

At the core of the six hour argument was a challenge to a July decision by DOH to allow Mt. Sinai to close BI. In March the DOH had cited Beth Israel for unlawfully beginning its shutdown without approval. They returned the application to Beth Israel in April saying it was inadequate. But by July, they said OK–with no explanation of two conditions: that BI run a 24 hour Urgent Care Center at NYEEI for three months and that BI pay $20 million to Bellevue Hospital to “expand” its Emergency Department (ED).

The core of the DOH findings in layman’s terms was “the closing is no big deal; our statistical analysis shows that the 50,000 patients treated at the BI ED can easily be absorbed elsewhere.” The main job for our legal team was to show that their analysis was “arbitrary and capricious” and a violation of law.

After DOH stated that state law doesn’t allow citizens to demand health care specifically addressed to their community, we went right to the law. The NY State Constitution requires that the State provide for “quality” health care, not “just “health care. We argued that this raised the bar on government decisions about health care. We believe that what we presented to Judge Pearlman was pretty devastating.

  1. The DOH mistakenly assumed that “ 60% of former BI patients who live outside lower Manhattan would go to hospitals outside of lower Manhattan.” This assumption fails to consider the strong likelihood that some patients whose home address is outside of lower Manhattan go to MSBI because they live in areas in Brooklyn right across the Manhattan and Williamsburg Bridges (13.9% of users), because BI is the nearest hospital, or are working in or visiting Lower Manhattan when they experience a medical emergency. As a result, the absorption analysis underestimates – perhaps greatly – the number of emergency patients who would need to be absorbed by remaining hospital emergency departments at or below 34th Street. This baseless assumption was then the basis for the DOH’s flawed decision to calculate needed absorption by other hospital emergency departments below 34th street for only 40% of BI’s previous emergency caseload, representing “those patients who reside in the three [unspecified] lower Manhattan zip codes.(Yes, DOH started by knocking 40% of the ER visitors out of their calculation!) Moreover, the actual percentage of ED “treat and release” patients who live in Manhattan is 55.2%, with 48% from Lower Manhattan, not 40%.
  2. The DOH analysis arbitrarily attempted to minimize the impact of closing the BI Emergency Department (ED) by asserting that “there are 19 hospitals within 30 minutes of driving distance from MSBI in Manhattan.” They fail to account for the delays caused by traffic in Manhattan and presented no data on the travel times for patients using mass transit. Finally, the times listed in the DOH chart are all from Beth Israel Hospital, not other service areas such as the Lower East Side and sections of the East Village.
  3. The DOH analysis arbitrarily fails to include the of time it would take an ambulance to reach the patient and then drive to an alternative hospital. EMS average response time to life-threatening situations has climbed from roughly 9 minutes and 40 seconds in 2014 to 12 minutes and 26 seconds this year, a 29% increase, according to a new report released by State Senator Brad Hoylman-Sigal. The consequences of longer travel times to alternative hospitals are serious and potentially fatal. The report from Hoylman-Sigal’s office states that: “During Cardiac Arrest chances of survival drop by 7- 10% for every minute of delayed treatment.”
  4. Another arbitrary error is reflected in the DOH estimate that 13.7% to 31% of “treat-and-release patients” warranting ED care would choose urgent care, although they don’t explain how or why. (DOH attributed the 13.7% figure to published literature, and gives 31% as MSBI’s figure for non-emergent ED patients in 2022.) Therefore “DOH assumes that the remaining percentage of patients would be re-directed to EDs, representing 69% of patients…” But that should say “between 69% and 86.3% of patients.” [100% minus 31% and minus 13.7%] DOH simply ignored its own lower estimate of the appropriate share that would go to urgent care. The related upper estimate of treat-and-release patients who warrant ED care, 86.3%, is one-fourth higher than the estimate DOH selectively used.
    The DOH’s “treat-and-release” population was then assigned to that category based on diagnosis at discharge, even though they reasonably presented themselves to an Emergency Department with a complaint such as chest pain or dizziness, when the final disposition could wind up as “treat-and-release.” It would be unreasonable to assume that if the ED at 16th and 1st wasn’t there, these patients would go to an urgent care, rather than to another ER.
    Therefore, the proportion of “treat-and-release” patients relied on in the DOH analysis is clearly a gross (capricious) underestimate of the ED patient demand. Their approval contained there is no discussion of why DOH can assume that patients who went to the ER, rather than to the many available Urgent Care Centers which are available, will now choose to go to Urgent Care Center  instead of some other Hospital’s ER.
  5. There are several other arbitrary assumptions which the DOH purported to show how the 55,000 low-acuity emergency BI visits in 2022 could be absorbed by other facilities, including an expanded Bellevue ED and the new Urgent Care Center Mount Sinai has promised to create at the NYEEI campus on 14th Street for three months. The analysis assumes that 17,000 visits that previously would have been seen by MSBI would immediately begin to be seen at the new Mount Sinai Urgent Care Center promised as one of the conditions of closure for MSBI without those patients being turned away from an ER, and sent to an ER, which would violate Federal Law.
    Additionally, while Mount Sinai has promised that the urgent care center would open the day that Beth Israel closes, there is no documentation of MSBI’s progress in building out that urgent care center or explanation of how fast the number of visits would grow to 17,000. Mt Sinai Beth Israel already has an Urgent Care Center at Union Square which is underutilized.
  6. The DOH analysis also assumes that Bellevue’s ED could accommodate another 9,000 patients within three months after the expansion starts, growing to 23,000 within four years. There is no documentation that these capacity projections and timelines are valid. According to DOH, during the four-year period it would take to expand Bellevue’s ED, an estimated 29,000 “treat and release” patients who previously went to MSBI would be “absorbed by nearby hospitals,” according to the analysis. There is no discussion about where these patients would go.
  7. Shifting Beth Israel ED visits to alternative hospitals would push all their ED occupancy rates up and leave eight with average daily occupancy rates above 90%. That would mean often exceeding 100% occupancy–routinely overstressing them and leaving little room to handle major incidents or public health emergencies. Most hospitals within a half-hour travel already run at over 95% on a normal day–while NYU Langone and Bellevue have consistently been above 100%. Between October 2023 and January 2023, while MSBI’s began to close the hospital, Bellevue’s increased to 128% and NYU Langone’s to 172%. This is particularly problematic only four years after NYC was hit hard by the COVID-10 pandemic, which filled EDs across the city.
         Finally, we cited evidence that that ER use overall in NYC has been rising. Hospitals across the city experienced a 6.5 % increase in ER visits during the first quarter of 2024 compared to the same time last year, according to the Greater New York Hospital Association.
  8. DOH presented only a brief discussion of inpatient care. They asserted that “Half of the 12K inpatient discharges would likely be absorbed by seven nearby hospitals leading to limited increase in occupancy in those facilities.” They “anticipated” that after BI closure both NYP Weill Cornell and NYU Langone would face an average inpatient occupancy of 90%. This plan is reckless because it leaves no capacity for major calamities.

The DOH analysis includes no anticipation of the impact of another public health emergency, such as COVID 19 or another Super Storm Sandy. This same DOH approved Mount Sinai’s plan to replace Beth Israel with a much smaller 72-bed facility in early 2020. Despite warnings, they did this just weeks before the city was plunged into the COVID 19 pandemic. Beth Israel reopened most of its closed floors during the pandemic to accommodate the pressing need and then abandoned the plan for a smaller facility. Despite that devastating experience and learning about the need for expanding capacity during such an emergency, the DOH has now approved getting rid of Beth Israel entirely. Where would patients go if another pandemic arrives?

This was only the highlight of our analysis which took us almost three hours to present. Was the Court listening? We will know soon.