Md. high court backs allowing hospital to do heart surgery

Judges vote 4-3 to uphold panel's choice of Suburban


In a 4-to-3 decision yesterday, the state's highest court ruled that the Maryland Health Care Commission acted within its authority when it approved a new open-heart surgery program in the Maryland suburbs of Washington.

Suburban Hospital in Bethesda, which the commission chose to offer the program, said it had hired most key staff and hoped to begin surgery this spring.

A separate court case challenging the commission's selection of Suburban is also working its way through the court system.

Yesterday's decision by the Court of Appeals is the latest in a long-running legal, regulatory and legislative battle over which hospitals in the state get to offer the prestigious, and potentially lucrative, programs.

Heart surgery, and other high-end services that go with it, bring a half-billion dollars a year to hospitals in Maryland and the District of Columbia.

Seeking to control costs and maintain quality, the Health Care Commission has limited the number of programs it approves; Suburban would be the 10th hospital in Maryland to perform heart surgery.

Several of the 37 hospitals that don't offer heart surgery - known collectively as "the have-nots" - have tried to win approval. They argue that more programs will control costs by introducing more market competition, and that more programs would mean better access and convenience for patients.

The courts generally upheld the commission against challenges to heart program decisions - until 2003, when the Court of Appeals said the commission hadn't used the right criteria in making its decision in awarding a program to Suburban in 2001.

The commission reworked its health plan and, after setting new criteria, selected Suburban again in 2004. MedStar Health and Adventist Health System, which operate hospitals with surgery programs, immediately went to court to try to block Suburban again.

A Court of Appeals majority upheld the commission this time. "MedStar's and Adventist's protestations notwithstanding, there is clear legislative authority for the commission's regulation," said the majority opinion, written by Judge Alan M. Wilner.

A dissenting opinion, written by Chief Judge Robert M. Bell, said the case was similar to the 2003 one. The commission, the dissent said, made its decision "using a different, but no less inappropriate, `regulatory slight of hand.' "

"We're extremely pleased," said Ronna Borenstein-Levy, director of corporate communications for Suburban. "We believe the commission made a thoughtful decision."

Michael Rogers, MedStar executive vice president for corporate services, noted that the number of heart surgeries in the state has been dropping, "which brings into question the rationale for approving another high-cost cardiac program."

According to commission data, the number of heart surgeries in Maryland and the District of Columbia dropped from 9,055 in 2000 to 7,537 in 2004, a decline of 16.8 percent.

That's in part because of improved techniques for angioplasty, a heart-repair technique in which a tube is inserted into a blood vessel to relieve a blockage. Over the same period, the number of angioplasties grew from 14,130 to 17,982, or 27.3 percent.

Dr. Rex Cowdry, executive director of the health care commission, said the panel is considering whether to change its process of awarding "certificates of need" for heart surgery and other clinical programs. He said the commission wanted to "see if there are other mechanisms that achieve the same laudable goal of controlling costs, improving quality and expanding access."

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