News: Quick Takes

Winston-Salem doctor may still prevail, despite procedural obstacles

At a July 31, 2018, press conference, Dr. Gajendra Singh, a Forsyth County surgeon, discusses the lawsuit he has filed challenging certificate of need laws. At left is Raleigh attorney H. Denton Worrell and at right is Institute for Justice Attorney Renee Flaherty. (CJ photo by Don Carrington)
At a July 31, 2018, press conference, Dr. Gajendra Singh, a Forsyth County surgeon, discusses the lawsuit he has filed challenging certificate of need laws. At left is Raleigh attorney H. Denton Worrell and at right is Institute for Justice Attorney Renee Flaherty. (CJ photo by Don Carrington)

A surgeon’s lawsuit against state restrictions on medical equipment has fallen victim to an obscure procedural rule.

Dr. Gajendra Singh of Winston-Salem wanted to provide his patients affordable MRI scans, but he can’t buy an MRI scanner without getting state permission under Certificate of Need laws. Singh challenged North Carolina’s CON laws as monopolistic and unconstitutional, but he abandoned his broader constitutional challenge after his case got tangled in procedure.

By restricting his case, Singh narrowed his ambitions. He now hopes to set the stage for future constitutional challenges against CON laws, not only in North Carolina but also across the nation, said Josh Windham, Singh’s attorney from the Institute for Justice.

If successful, his broad constitutional challenge could have toppled the CON regime, breaking or weakening state caps on hospital beds, ambulatory surgery centers, dialysis centers, and medical equipment.

But an obscure requirement sank the viability of that broad challenge. 

The legislature required broad constitutional challenges to go before a three-judge panel. Singh’s lawyers feared the panel would keep the case delayed for months. They’ve already spent more than a year and a half plodding through procedural roadblocks to determine whether the case will reach a courtroom.

“North Carolina’s three-judge system is a confusing quagmire,” Windham said. “We decided to give that purgatory an end and move this case forward … so that Dr. Singh can still get the relief he wants in a timely manner.”

The case could hit the courtroom by next fall. Singh can only prove the CON law unconstitutional in his specific case with the MRI scanner.

“But if Dr. Singh prevails in this case, that would be a decision that the CON law is unconstitutional as applied to him, that you’ve created a monopoly by preventing him from purchasing a scanner,” Windham said. “At that point, the writing would be on the wall for the CON law. All it would take would be successive plaintiffs to follow up Dr. Singh’s lawsuit with the same legal arguments.”

Windham hopes this could help patients access more affordable care. Defenders of CON laws warn that weakening the restrictions could hurt rural health care and incentivize overprescribing. 

“CON laws in North Carolina only serve to protect incumbent providers,” said Jordan Roberts, John Locke Foundation health policy analyst. “CON laws assume that government bureaucrats know the health needs of a community better than those who live in that community. Removing CON laws will give the power back to the individual communities to determine their health needs.”

Any future broad constitutional claims against CON laws risk running into the same three-judge panel. 

“This just highlights why [this] is such a terrible rule,” said Jon Guze, John Locke Foundation director of legal studies. “It is much harder to win and to get unconstitutional laws struck down in their entirety. It sets up all of these procedural labyrinths that you have to thread your way through before you can even get your facial challenge before court.”