NC Attorney General Josh Stein sues HCA Healthcare and Mission Hospital

ASHEVILLE – North Carolina Attorney General Josh Stein filed a momentous lawsuit that accused HCA Healthcare of failing to provide the level of emergency and cancer care it agreed to when it purchased the Mission Health system in 2019. Stein, who is running for governor, announced the filing at a Dec. 14 news conference in Downtown Asheville.

The lawsuit Stein filed in the General Court of Justice’s Superior Court Division in Buncombe County is asking the court to demand HCA restore the emergency and oncology services to its pre-sale conditions. It is also requesting the court award any additional relief it deems fair.

Stein’s 58-page argument hinges on demonstrating that HCA discontinued aspects of its oncology services and emergency and trauma services, violating the agreement to buy the Mission Health system. The attorney general also submitted 17 exhibits as part of the filing.

The complaint highlights deficient staffing and long wait times in the Mission Hospital emergency department, a “manufactured” bed shortage and the consequences of medical transport services, citing Citizen Times reporting as evidence. It also demonstrates how deteriorating oncology staff levels reduced cancer patient capacity and led Messino Cancer Center to stop treating patients with complex cancers at Mission.

“I have asked the court to force HCA to fulfill its commitment and to properly care for the patients of Western North Carolina,” Stein said at the event. “I’m confident we will win.”

Stein’s office notified Dogwood Health Trust in a late October letter that HCA violated the commitments it made when it bought the Mission Health system in 2019. Dogwood is the nonprofit entity that received the proceeds of the $1.5 billion purchase. It is responsible for overseeing HCA’s compliance with those commitments and delivers grants to Western North Carolina organizations.

"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," Dogwood spokesperson Erica Allison told the Citizen Times in a Dec. 15 statement.

"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. Our desire to encourage and support facilitated discussions concerning these or other issues related to the Asset Purchase Agreement remains."

More: Lawsuit: Mission Hospital negligent post-op care led to patient death

That letter satisfied the requirement in the acquisition agreement to notify Dogwood of HCA’s violations. In accordance with the contract, the letter allowed Dogwood 40 days to work with HCA to fix the infractions. When that deadline expired earlier this week, with those violations still persisting, the attorney general became eligible to bring legal action.

Mission to fight lawsuit 'vigorously'

“We are aware of the announcement Gubernatorial Candidate Stein made in Asheville today,” Mission Hospital spokesperson Nancy Lindell said in a statement. “We remain confident that we continue to meet, and often exceed, the obligations under the (agreement) that the Attorney General approved at the time of our purchase, and we intend to defend the lawsuit vigorously. Importantly, the Independent Monitor confirmed our compliance with that agreement during its most recent review.”

Former U.S. Attorney for the District of South Carolina Bill Nettles, who now leads the false claims unit at Carolina Whistleblowers, a law firm, and frequently works on health care litigation, called the filing a well-documented complaint.

"This is how government is supposed to work," he told the Citizen Times Dec. 14. "The attorney general answers to the people of North Carolina. He put in place protections for the people of North Carolina and then he monitored to see if they were following through. They were not living up to their end of the bargain and he brought a lawsuit."

The Independent Monitor is the pseudonym given to Gibbins Advisors in the 2019 agreement. Gibbins is a Nashville-based firm that reviews whether HCA violated the agreement in an annual reporting process. It recently held a meeting in Asheville during which Mission Health patients, nurses and physicians decried deteriorating quality of care in the hospital.

Following the meeting, Gibbins’ Co-founder and Managing Director Ronald Winters told the Citizen Times that he did not hear any significant violations of the agreement.

Winters told the Citizen Times in an email that his team is reviewing the complaint and accompanying documents. The last report Dogwood delivered to Stein's office, which evaluated the 2022 calendar year, did not find any violations with the agreement. Gibbins advised Dogwood on that report. The 2023 report will be delivered in the spring of next year.

Stein would not estimate how long the litigation would take to reach a resolution.

More: Court: Mission Hospital owes ex-employee $5K for 'emotional distress' but has not paid

More: Pending Mission Hospital bylaws, policies threaten to punish doctors who speak out

2023 12 14 HCA Complaint (1) by Mitchell Black on Scribd

Stein ultimately allowed the 2019 agreement to move forward after negotiating commitments to maintain services and determining that HCA paid a fair market value. He and other lawmakers have stressed that the attorney general’s oversight of the agreement was limited by state law.

The lawsuit filing is the culmination of months of correspondence between HCA’s North Carolina leadership and Stein’s office regarding cancer services provided at the hospital. One of these letters revealed that Mission Hospital employed a single medical oncologist, a general cancer doctor, on staff.

“It is inconceivable that HCA could provide the hundreds of thousands of North Carolinians who reside within this expansive geographic area with the quality of care that they need and deserve using a single oncologist,” a June 20 letter from the attorney general’s office read.

That doctor’s final day at the hospital was Nov. 26, according to an October letter from HCA North Carolina Division President Greg Lowe.

The lawsuit adds to the pile of litigation facing Mission Hospital and HCA. Multiple WNC residents, including Canton Mayor Zeb Smathers, are suing for medical malpractice. Residents and localities have challenged the hospital conglomerate in anti-trust litigation. A former cancer doctor is suing the hospital for libel after alleging that HCA failed to remove an erroneous report from a national medical malpractice database, which has prevented him from finding work.

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: Attorney General Josh Stein sues HCA Healthcare Mission Hospital