Written by Andrew R. Jones, Asheville Watchdog.
North Carolina Attorney General and gubernatorial candidate Josh Stein came to Asheville Thursday to announce that he is suing HCA Healthcare and its Mission Health system for violating the asset purchase agreement regarding cancer care and emergency services at Mission Hospital.
“For-profit HCA has broken its promise to the people of western North Carolina and to my office,” Stein said in announcing the lawsuit, which he filed on behalf of Dogwood Health Trust, the foundation created with assets from the $1.5 billion sale of nonprofit Mission Health to HCA nearly five years ago. “Quality health care is too important – in some cases, a matter of life and death. But HCA apparently cares more about its profits than its patients.”
Frequently citing reporting by Asheville Watchdog, the complaint asks a judge to declare that HCA has breached the purchase agreement, to issue a permanent injunction to restrain HCA from committing such breaches in the future, and to require HCA to continue providing emergency and trauma services and oncology services at the level they were provided in the six-hospital Mission system before HCA took over.
“My complaint alleges that HCA mission has failed to provide quality consistent care in the emergency services department and in cancer services for patients here in western North Carolina,” Stein told a crowd of elected officials, medical professionals, supporters and media gathered at the county’s administrative building in downtown Asheville.
An HCA spokesperson did not immediately respond to The Watchdog’s request for comment.
Dr. Susan Mims, CEO of Dogwood Health Trust, the entity responsible for ensuring HCA’s compliance, said that “within the past 40 days, Dogwood has engaged in direct conversations with the Attorney General’s Office and with HCA, and facilitated a joint meeting with them both. In the course of those discussions Dogwood offered to fund an independent, skilled facilitator to help address these complex issues of care in hopes of a timely and productive outcome for our region.”
“The Attorney General’s Office is pursuing litigation to address access to specific services,” Mims continued. “Our desire to encourage and support facilitated discussions concerning these or other issues related to the Asset Purchase Agreement remains. We will continue to do all we can to foster open and constructive communication with and between the Attorney General’s Office and HCA, while also fulfilling our obligations as outlined in the Asset Purchase Agreement.”
Complaint Centers on Asheville’s Mission Hospital
With scathing language, the lawsuit alleges that “HCA has broken its promise and breached the APA,” or asset purchase agreement.
“Mission Hospital’s once efficient and orderly emergency department is now significantly degraded and unable to meet patients’ needs. Doctors and nurses are forced to treat patients in the waiting room, without even the bare minimum equipment or patient privacy protections, let alone adequate staff. Surgeons lack sterile equipment because HCA refuses to pay staff to clean surgical instruments,” the complaint alleges.
“The unacceptable conditions are not limited to the emergency department. Mission has discontinued certain essential oncology services that it provided before HCA acquired the hospital and has fewer available oncology beds overall,” the complaint contends.
“Responsibility for this downward spiral rests entirely with HCA,” the lawsuit alleges.
Stein’s “letter of non-objection” to the sale of nonprofit Mission to for-profit HCA came only after he demanded greater consumer protections than were included in the terms unanimously approved by Mission’s board of directors at the time.
Stein’s conditions included the hiring of an independent monitor to oversee HCA’s compliance with the agreement; enforceable commitments to maintain current levels of service at all six hospitals in the Mission system, not for the five years the Mission board agreed to in some cases, but for 10 years; and requiring HCA to adopt what he viewed as Mission’s more generous charity care obligations.
The conditions did not include maintaining quality of care, which the lawsuit filed today seeks to address.
More Than 500 Complaints
Stein, who was scheduled to appear at a campaign fundraising event in Hendersonville later Thursday, was flanked at Thursday’s announcement by Mission union nurses, physicians and a cancer patient.
“I want to be extremely clear,” Stein said, “HCA Mission is violating the agreement, not the hardworking doctors, nurses and other professionals who work at this facility. In no way does this lawsuit reflect on them or their dedication. In fact, it underscores their commitment because they are treating patients without adequate support from hospital administration.”
“Since 2019, my office received more than 500 complaints about the care at HCA facilities, including about emergency services, and oncology services,” Stein said. “We have 16 signed affidavits from patients and providers attached to our complaint to underscore the frequency and seriousness of these allegations,” Stein said.
On Oct. 27, Stein’s office issued an investigative demand to HCA for 41 sets of documents related to oncology services at the hospital, patients who came to Mission but did not receive care, emergency services, canceled surgical procedures, complaints about sterilization of surgical equipment and more.
On Oct. 31, Stein’s office sent notice to Dogwood Health Trust that HCA Healthcare has violated the asset purchase agreement regarding cancer and emergency services at Mission Hospital and threatened to sue if the problems were not resolved within 40 days, by Dec. 10.
Instead of sending the documents requested, Mission retained the giant international law firm Latham & Watkins, which wrote a letter denying Mission had violated the asset purchase agreement and calling the demand for documents “legally improper.”
HCA has settled similar lawsuits
Stein said his office will file the suit in the North Carolina Business Court. It will be one of a handful of lawsuits filed against HCA and Mission since late 2021. Buncombe County, Madison County, the city of Asheville, the city of Brevard, citizen plaintiffs and others alleging malpractice have sued the hospital system in the past two years.
In 2015, HCA was ordered to pay $433 million to the nonprofit Health Foundation of Greater Kansas City for violating the charity care and capital improvement provisions of its $1.3 billion purchase of Health Midwest in 2003. HCA settled the case for $177 million in 2017, the year it began discussions to acquire Mission Health.
HCA also has received significant backlash from Mission nurses who say the hospital is purposefully understaffing the hospital, and from doctors who recently told the independent monitor in a letter that HCA had “gutted the heart and soul of our community healthcare system.”
Stein’s legal action comes as Mission is facing other investigations from accrediting organization The Joint Commission and the North Carolina Department of Health and Human Services, which is inspecting Mission on behalf of the Centers for Medicare & Medicaid Services.
Mission has made numerous changes to its emergency department during these investigations, according to previous Watchdog reports.
The independent monitor hired by Dogwood Health Trust to oversee HCA’s compliance with terms of the contract reported at a public meeting in Asheville Oct. 19 that it has not found in its 2022 report that HCA has violated any of the agreements.
Hannah Drummond, a union nurse who attended the meeting, said HCA has the ability to fix the issues immediately.
Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Andrew R. Jones is a Watchdog investigative reporter. Email [email protected]. To show your support for this vital public service please visit avlwatchdog.org/donate.