Judge issues split ruling on motion to dismiss Prouty Garden lawsuit

August 5, 2016
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A judge has issued a split-decision ruling over a motion to dismiss the lawsuit that is attempting to stop Boston Children’s Hospital (BCH) construction plans for a new facility that will lead to the demolition of the Prouty Garden. The lawsuit is filed by members of the Friends of the Prouty Garden group.

The lawsuit alleges that BCH began construction without obtaining the Determination of Need (DoN) from the state Department of Public Health (DPH). The lawsuit also alleges that BCH has raised money for the project without notifying DPH, violating state law.

DPH is currently reviewing BCH’s DoN. The DoN program, established by the legislature in 1971, promotes the availability and accessibility of cost effective and high quality health care services to Massachusetts citizens, according to DPH. It also assists in controlling health care costs by eliminating duplication of expensive technologies, facilities, and services, according to DPH.

The DoN program evaluates proposals and makes recommendations to the Public Health Council for approval or denial of the expenditures or new services, and the Public Health Council makes the final decision.

Judge Kenneth Salinger of the Suffolk County Superior Court ruled against BCH’s motion to dismiss regarding the DoN on the 55 Shattuck St. building, but granted the motion to dismiss on the fundraising and the DoN over three renovation projects. The judge also granted a motion to dismiss for DPH, Suffolk Construction Company, and Turner Construction Company, who were named in the lawsuit.

“It’s mostly good news for the Friends of Prouty Garden because the lawsuit against Children’s Hospital is intact and it goes forward,” Gregor McGregor, a lawyer for the plaintiffs, said through a spokesperson.

He added, “The judge rejected several BCH legal defenses. Discovery of BCH documents is going on right now. Meanwhile, we are full participants in the DPH review. There, we are obtaining documents under the Public Records Law.”

BCH did not respond to a request for comment.

BCH plans to replace the Prouty Garden and the 55 Shattuck St. building with a new clinical building at the corner of Shattuck Street and Meadow Lane on its main campus.

According to the Massachusetts Horticultural Society website, the garden was a gift from Olive Higgins Prouty, a local author, and opened in 1956. It is described as a “small pocket garden” and as a “quiet oasis” located behind BCH’s main building. The garden, designed by the Olmsted Brothers landscape firm, is modeled after the terrace and garden at the Museum of Modern Art in New York City.

The Friends of the Prouty Garden had petitioned the Boston Landmarks Commission to landmark the garden. That petition was rejected by a 7-1 vote. The group hired a law firm and asked the AGO to stop the demolition, saying it goes against the terms of Prouty’s gift and her will. AGO has the authority to make sure funds to a charity are properly used. AGO declined to intervene.

 

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