Judge keeps suit against CON laws alive

A Fulton County judge Wednesday rejected a state motion to dismiss a lawsuit filed by two ob/gyns to overturn Georgia’s health care regulatory process.

Judge Bedford

But Judge T. Jackson Bedford Jr. also allowed the state attorney general’s office to appeal his decision immediately to an appellate court.

Cartersville physicians Hugo Ribot and Malcolm Barfield argue, in a suit filed in June, that Georgia’s certificate-of-need (CON) system restricts competition and is unconstitutional.

CON is a complicated set of regulations governing the creation and expansion of medical facilities in Georgia. This regulation process has been controversial because hospitals have used it to challenge other facilities’ projects.

Ribot and Barfield sued after being denied permission to allow other ob/gyns to perform surgery at the center they own.

At the hearing Wednesday, Assistant Attorney General Monica Sullivan represented officials at the Georgia Department of Community Health, which oversees the CON program. She said the two doctors failed to pursue administrative appeals after their request was denied.

The doctors’ arguments against the current regulatory system, she told Judge Bedford, “should be directed to the General Assembly,’’ which passed the CON laws and can revise or repeal them.

Dr. Hugo Ribot

Bills to change the laws are proposed frequently in the Georgia Legislature, but have been unsuccessful. Hospital groups strongly support the CON laws.

James Manley, an attorney for the Goldwater Institute, representing the two physicians, told the judge that other doctors are “knocking on their door’’ asking to do surgery at their Cartersville center.

CON laws, he said, fail to achieve their purpose of containing health care costs.

The doctors “are challenging the requirement to obtain a CON in the first place,” Manley said. The Goldwater Institute, based in Phoenix, is an advocacy group for free markets and reduced regulation.

Hospital groups have argued that the CON laws protect hospitals. They say hospitals need money-making services such as surgery to offset financial losses they incur through intensive care, trauma and other unprofitable services.

In March, state regulators, acting under the CON laws, denied Ribot and Barfield permission to allow other ob/gyns to perform surgery at the facility.

The two doctors’ lawsuit is believed to be the first such litigation seeking to overturn Georgia’s entire certificate-of-need program.

“We can present ample evidence that CON does not improve access to care’’ and does not control costs, Ribot told GHN after the judge’s ruling.

An attorney representing the Georgia Alliance of Community Hospitals, J. Marbury Rainer, said the case properly should be resolved at the appellate court level.

The state attorney general’s office declined comment on Judge Bedford’s decision.