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Judge Weighs Temporary Delay Request On NHRMC Vote

By Vicky Janowski, posted Sep 23, 2020
A judge will decide whether to grant a temporary restraining order in the potential sale of the county-owned New Hanover Regional Medical Center.
 
Superior Court Judge Phyllis Gorham on Wednesday heard nearly two hours of arguments from attorneys representing NHRMC and New Hanover County and Save Our Hospital, a local group that filed a public records lawsuit Tuesday about the proposed deal.
 
Attorneys representing the hospital, county and board of commissioners filed a brief Wednesday responding to the legal complaint, saying the hospital and county have responded in good faith over the past 11 months to Save Our Hospital’s requests for information.
 
Save Our Hospital’s lawyers at Wednesday’s hearing, which was held virtually, asked for a 10-day restraining order and a date to be set for a preliminary injunction hearing.
 
The sides differed in how responsive the hospital has been to a series of records requests that Save Our Hospital has submitted going back to November and as recently as Sept. 10. The time covers when NHRMC and the county were planning to receive proposals from outside health systems interested in partnering with NHRMC through recent negotiations with Novant Health, which offered $1.5 billion to buy the hospital.
 
Lawyers for Save Our Hospital argued that a number of requested items had not been given to them, including the hospital’s master facilities plan that is part of its strategic plan. Hospital attorneys have said that master facilities plan was withheld under the state’s exemption to public records for competitive health care information.
 
Attorneys representing the hospital and county said all of the requests have been filled that are allowed under the state’s public record law, with the most recent requests submitted Aug. 11 and Sept. 10 still being worked on. They also pointed to examples where Save Our Hospital representatives were told their requests were too broadly worded and needed to be adjusted to be fulfilled – such as a request in August for documents, contracts and messages sent or received by any hospital employee concerning anything related to the sale or partnering of the hospital.
 
“Your honor, the hospital has 8,000 employees. That’s going to require some tightening up … It would be impossible to comply with that request and certainly with any time limitations on it,” attorney Ryal Tayloe, with Ward and Smith, said at Wednesday’s hearing.
 
The hospital retained Ward and Smith to help address Save Our Hospital’s requests earlier this year after the group and NHRMC disagreed on the hospital’s initial responses about what could be released or not under state law.

“New Hanover County has complied quickly and thoroughly with all public records requests of Save Our Hospital and its representatives; and in the hearing today, counsel for Save Our Hospital acknowledged that," New Hanover County Attorney Wanda Copley said in a statement Wednesday. "The county will continue to be transparent and will continue to willingly share all of the public information we have related to this and any other matter as required by law.”

While much of the discussion Wednesday focused on how the records requests have been made and responded to, attorneys representing Save Our Hospital also brought up other issues they have about the contract agreement with Novant and proposed community foundation that would oversee a $1.2 billion endowment from the sale proceeds.
 
“This is simply a lawsuit to get public records, and they can’t leapfrog this lawsuit to compel disclosure of public records into a lawsuit to enjoin the sale of the hospital,” Tayloe said. “That doesn’t make any sense; it’s not legally sound.”
 
The suit is not to block the sale of the hospital but to get more information about the proposals, said Robert Zaytoun, managing partner of the Raleigh law firm Zaytoun Ballew & Taylor that represented Save Our Hospital at Wednesday’s hearing.
 
But with the November elections approaching, and three of the five county commissioners seats up for grabs, a legal block might not be the only way for opponents to impact the deal. A delay on the clock could potentially influence the necessary approval vote on the sale depending on who gets elected since two of the sitting commissioners are not running for re-election.
 
If the court were to issue an injunction until certain records requests are fulfilled, the hospital and county would be under a timeline to comply before a vote could take place.
 
Zaytoun referenced the upcoming election in his comments at Wednesday’s hearing.
 
“Once this sale goes through, and if it goes through before this election, not only will the toothpaste be out of the tube, but … all of the toothpaste produced in the factory will be out of the tube. And it can never be put back,” he said. “And the commissioners that are departing, the county commissioners will leave in their wake potentially a debacle or potentially something that this county can be proud of.”
 
On Friday, county and hospital officials released documents about the agreement with Novant that NHRMC trustees and county commissioners are expected to vote on next month.
 
A public hearing about the agreement is scheduled for Monday. There is no vote scheduled for that day, just the public hearing, Jessica Loeper, chief communications officer for the county, said Wednesday.

County officials have said the vote would be at the commissioners' Oct. 19 meeting before an Oct. 31 deadline included in a letter of intent with Novant.
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