Proposed schedule for HCA, Stein case released: Sides disagree over pacing, trial start

ASHEVILLE – As the federal government removed Immediate Jeopardy designation at Mission Hospital, and antitrust cases against the facility’s corporate owner HCA Healthcare proceed in federal and state court, lawyers for the North Carolina Attorney General’s office and the hospital prepare for a showdown in the state’s business court.

State gubernatorial candidate and Attorney General Josh Stein sued HCA Dec. 14, alleging that the company did not provide the level of emergency and cancer care it agreed to when it bought the Mission Health system in 2019. HCA responded Feb. 13, arguing that the company complied with the agreement and that the contract did not require the hospital to adhere to any quantity or quality standards.

On Feb. 27, Stein’s office and HCA jointly filed a Case Management Report in North Carolina Business Court. This report, required by state rules of practice and procedure, includes each party’s preference for case governance including timeline for discovery, schedule for depositions, timing for mediation and a proposed trial schedule.

On the same day, Stein noted his intent to ask the court to allow his office to file an amended complaint by April 1. If Judge Julianna Theall Earp denies Stein’s request, the court agreed to allow his office 10 extra days to respond to HCA’s motion to dismiss.

The Case Management Report reveals a disagreement over pace. Stein requested more time for discovery, for HCA to serve expert reports, prepare for deposition and trial. HCA provided a schedule that would initiate the trial in late October. Per Stein’s schedule, if the attorneys file at the requested deadlines, the trial would begin in April 2025 at the earliest, after he leaves office.

"Cases involving complex legal issues often take an extended period of time to resolve. The dedicated attorneys at NCDOJ will keep fighting this case as long as it takes to restore health care services to the level western North Carolinians expect and deserve," spokesperson for the attorney general's office Nazneen Ahmed told the Citizen Times in a March 1 message.

Duke Law Professor Donald Beskind told the Citizen Times in a Feb. 29 email that these differences over speed were common.

“This is not unusual because the plaintiff has the burden of proof and because in this case, the plaintiff, not being the one who operates the facility, has more to learn,” he said.

Beskind added in a follow-up conversation that defendants often want to “squeeze” plaintiffs with an early trial date, so they are rushed. He said he has no opinion about whether that is occurring with this case.

HCA also requested the court to not allow Stein to produce rebuttal expert reports.

“We are confident in our compliance with the APA and are seeking to reach a resolution as soon as the Court agrees is reasonably possible,” Mission Health spokesperson Nancy Lindell told the Citizen Times in a March 1 statement.

Earp will ultimately rule on these differences in the Greensboro business court, but no hearing date has been set as of March 1.

Stein Ex Rel Dogwood v HCA - Case Management Report FINAL by Mitchell Black on Scribd

Both parties found some common ground. They agreed to limits on written discovery, and how documents between parties in litigation are identified, preserved and processed. There were also agreements about the number of certain types of depositions, and needs for orders that would conceal information, like identifying patient information, from the public.

Since Stein filed his lawsuit, the Centers for Medicare and Medicaid Services declared that conditions at Mission Hospital created an Immediate Jeopardy situation, the most serious deficiency regulators can assign. Immediate jeopardy is reserved for noncompliance with federal Medicare conditions for participation that puts patients in danger of serious injury, harm or death. A report detailing the deficiencies that rose to immediate jeopardy revealed four patient deaths.

More: CMS: Mission Hospital removed 'Immediate Jeopardy' conditions; follow-up results pending

More: Doctors, advocates slam Mission's plan to correct deficiencies; doesn't address staffing

More: State and federal government survey Mission Hospital after Immediate Jeopardy designation

Stein told the Asheville Watchdog in Asheville Feb. 27 that the findings of the federal report could influence his litigation against the hospital.

CMS has since removed the immediate jeopardy designation, giving the hospital 90 days to become compliant with Medicare regulations.

Mitchell Black covers Buncombe County and health care for the Citizen Times. Email him at mblack@citizentimes.com or follow him on Twitter @MitchABlack. Please help support local journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: HCA, NC Attorney General Stein lawsuit: Disagreement over pacing