New Bern eye surgeon urges N.C. Supreme Court to address certificate-of-need dispute

An eye surgeon in New Bern is asking the N.C. Supreme Court to take up his challenge against the state’s certificate-of-need law. He argues CON restrictions violate his state constitutional rights.

Dr. Jay Singleton’s latest appeal follows the N.C. Court of Appeals’ unanimous June 21 decision dismissing his case.

The John Locke Foundation, which oversees Carolina Journal, is participating in this case with a friend-of-the-court brief supporting Singleton.

“The CON law is a constitutional abomination,” said Joshua Windham of the Institute for Justice. IJ attorneys represent Singleton. “In North Carolina, laws are supposed to protect the public from harm, and monopolies are expressly forbidden. But the CON law thrives on violating these principles. It cripples competition, props up established players, bans innovators, and forces you — the patient — to pay more for less. The time has come for the North Carolina Supreme Court to take these issues up and to declare, once and for all, that in our state, public power cannot be used for private gain.”

The CON case presents three issues for the N.C. Supreme Court’s consideration, according to the latest court filing from Windham and his colleagues.

“Whether the CON law, as applied, violates the law of the land clause (Art. I, § 19) of the North Carolina Constitution,” according to Singleton’s lawyers. “This issue raises substantial questions about the importance of economic liberty, what test applies in substantive challenges under the clause, and whether facts matter under that test.”

“Whether the CON law, as applied, violates the anti-special privileges clause (Art. I, § 32) of the North Carolina Constitution,” the brief added. “This issue raises a substantial question about how the clause applies to special economic privileges.”

“Whether the CON law, as applied, violates the anti-monopoly clause (Art. I, § 34) of the North Carolina Constitution,” the filing listed as the third issue. “This issues raises a substantial question about how the clause applies when the government grants an exclusive right to provide a service.”

Singleton’s lawyers remind the state’s highest court that it struck down CON restrictions once before, in 1973. Five years later, the General Assembly approved a new, “substantially similar” CON law. The state Court of Appeals then declared the original state Supreme Court ruling “moot,” and now there is “confusion” about the original decision’s status.

“The time has come for this Court to put that confusion to rest,” according to IJ attorneys. “This case alleges that the current CON law, as applied to Dr. Singleton, violates the same three provisions the original CON law violated.”

The appeal labels the case’s facts “simple.” “Dr. Singleton owns an operating room that he could use to expand patients’ access to safe, affordable eye surgeries,” according to the court filing. “But the CON law says that only operating rooms with a CON can be used. And Dr. Singleton cannot even apply for a CON unless the state first declares a ‘need’ for a new operating room in his area — which it has not done in well over a decade.”

“In fact, the only entity in Dr. Singleton’s area to ever own an operating room CON is CarolinaEast, a hospital located two miles down the road,” according to the surgeon’s lawyers. “Dr. Singleton could provide eye surgeries at his facility for thousands of dollars less than those same procedures cost at CarolinaEast. But the CON law bars him from doing so. As a result, patients suffer while CarolinaEast profits.”

For example, Singleton could perform cataract surgeries for $1,800, while the facility fee alone at CarolinaEast reaches almost $6,000, according to the appeal.

Current law blocks Singleton from applying for a CON “until at least 2024 — and likely well beyond that,” according to the filing. “The market is closed.”

“If excluding Dr. Singleton from the market does not benefit real patients, what does it do? The obvious: It ‘protect[s] established healthcare providers’ — namely, CarolinaEast— ‘from competition.’”

Since the Appeals Court panel’s decision was unanimous, the state Supreme Court faces no obligation to take Singleton’s case.