Monday, May 21, 2007

Oktibbeha Co. Hospital v. Mississippi State University, MS Dept of Health and Premier Radiology

Issued last week by the MS Supreme Court was an interesting ruling, 2006-SA-00358-SCT, concerning the CON (Certificate of Need) process in Mississippi. For a slight bit of background I will say that to run a hospital or medical center of some sort in Mississippi you need a CON which is has many, many hoops to jump through and red tape to be crossed. I beleive they all have to start as legislation and the hoops and tape are administered by the MDOH. In this case it appears that the legislature passed a bill in 2004 that would allow a MRI system and a linear accelerator (I think they are similiar but different, but I'm no doctor) to be placed in Starkville with the condition that 2/3 of its operable time be allowed to the University for research purposes and 1/3 of its operable time could be for private use. With this bill the normal CON procedures were waved. The Oktibbeha Co. Hospital (OCH) objected to this, a suit followed and last week the MS Supreme Court ruled on it, saying that this bill was not unconstitutional and that use of these systems through Mississippi State is acceptable.

Now I will provide a bit of my take on this.

OCH was the only game in town for things like a MRI and with this bill they lose their local monopoly. I'm sure they are more upset by the 1/3 time that Premier Radiology is getting than the 2/3 research component for MSU.

I think MSU and more especially Premier pulled a bit of a fast one as Premier used the cover of a research university (really the research university in the state) to get access to machines that can exponentially expand their business without jumping through the hoops and redtape of a CON process.

Finally, I think OCH is pretty unhappy with their lawyers at this point. While the Court didn't completely blast the lawyers for not filing this constitutional challenge with the MS Attorney General's Office, as is required, they did make a remark and strike that entire part of the argument (one of the three issues). The Court didn't buy the argument that because MSU was served and technically the head lawyer at MSU is an AG attorney proper notice was given. This strikes me as a piece of bad lawyering as service and notice are one of the few things that is easy to get right and they didn't do so in this case.

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