Prouty Garden lawsuit dismissed

November 3, 2017
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Suffolk Superior Court Judge Sanders has granted the Department of Public Health (DPH) and Boston Children’s Hospital (BCH) motions to dismiss the Ten Taxpayer lawsuit challenging the state’s approval of BCH’s $1 billion expansion project.

Almost two years into this legal battle, Ten Taxpayer group is “disappointed without a doubt,” but exploring options to appeal the decision, according to Gus Murby, lead plaintiff of the Ten Taxpayer Group.

“We don’t think that we’ll be going away quietly,” Murby said.

BCH and DPH did not respond to requests for comment.

Ten Taxpayer Group is a group of individuals in the lawsuit, some of which are members of Friends of Prouty Garden who had advocated for saving the garden, which has since been demolished. The group is challenging Boston Children’s Hospital by alleging that BCH began construction of a new building before obtaining a Determination of Need (DoN), violating state law.

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’s citizens, according to DPH. It assists in controlling health care costs by eliminating duplication of expensive technologies, facilities, and services.

Murby said that the judge’s ruling has not been officially processed due to administrative reasons, but after the official ruling, the Ten Taxpayer group will have 30 days to make a decision about whether or not to appeal. They have not yet made a decision about whether or not they will do so, but are feeling motivated to keep on fighting and have several options to consider.

Murby said that he originally was motivated by the desire to preserve the garden because of his experiences there at a time when his son was being treated at BCH.

“If you’re facing a difficult diagnosis, being able to get out into the fresh air and away from the beeping machines has been clinically proven as a major benefit,” Murby said.

Murby also said that while the fight originally began to save the Prouty Garden, it has continued even after the destruction of the garden in order to challenge the legitimacy of the Determination of Need process and the state’s commitment to keeping healthcare costs low.

“We first started this battle for a range of reasons, most of which had to do with people’s personal connection with the garden,” Murby said. “The early push was to preserve the garden, which came down a year ago. The next logical place to look at was the DoN process, and we got drawn into that issue. We think this is a really bad project, not just because it eliminated the garden, but on economical gardens this thing is a dog, in our opinion. It’s based on faulty analysis and faulty administration of DoN process. For the past year, the issue we’ve been talking about is the issue of the impact that this will have on healthcare costs in Massachusetts – I’m a taxpayer, not simply someone who loved the garden.”

Murby said he was frustrated that the judge seemed to accept the argument from Children’s Hospital that the Ten Taxpayer group was only motivated by their desire to preserve the garden.

“Unsurprisingly, BCH suggested that the only reason we want to do this is to save the garden,” Murby said. “Unfortunately, the judge indicated that she accepted the argument that we were more motivated by the issue of the garden. She shouldn’t have accepted that, and I found it frustrating. We put so much effort into this.”

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