Lawsuit to protect Prouty Garden continues

The Anne Gamble Ten Taxpayer Group, made up of members of the Friends of the Prouty Garden (FPG), has filed an appeal over the Boston Children’s Hospital (BCH) expansion project as part of a continuing effort to prevent the destruction of the Prouty Garden.

The Dec. 23 appeal was delivered to the Massachusetts Appeals Court, appealing previous Suffolk Superior Court decisions not to issue an injunction or a stay of the state Public Health Council’s decision to grant the project a Determination of Need (DoN).

“‘The Appeals Court ruling has no set schedule for such single justice appeals, so there is no particular time we expect to hear back,” said Jim McManus, spokesperson for the opposition group. “However, we confirmed the court has the appeal and supporting documents as of the day we filed it.”

The BCH project was granted a DoN last fall. 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 state Department of Public Health (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.

Greg McGregor, attorney for the opposition group, said that “[they] do hope the Appeals Court grants the requested stay of the approval of the Determination of Need because of the importance of the issues, medical cost inflation in the Commonwealth, and strength of our legal case.”

All of the members of the Anne Gamble Ten Taxpayers Group belong to the Friends of the Prouty Garden group.

“The FPG members, including the plaintiffs, in court are proud to support the FPG cause with their moral support, financial contributions, and stick-to-a-tivity!” said McGregor.

This is the second case that the Anne Gamble Ten Taxpayers Group have filed in relation to the Prouty Garden and the BCH expansion project. In another lawsuit, they claimed that BCH started construction before obtaining Determination of Need.

Suffolk Superior Court Judge Salinger has dismissed the earlier case “without prejudice” on the grounds that the claims are moot, said Lisa Capone, a spokesperson of the opposition group. “Without prejudice” means that the claims can be brought again.  The court noted that most of the plaintiffs have recently filed an appeal of the state’s approval of the determination of need, and said that the later case was the proper place to litigate those claims, according to Capone.

Separately, Judge Salinger previously said that the money that the BCH spent to prepare to demolish the Wolbach Building was permissible because it had been expressly authorized by DPH, said Capone.

Boston Children’s Hospital did not respond to requests for comment.

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