Epstein Becker Green Represents Deborah Heart and Lung Center in New Jersey's First Complex Civil Trial Since the Pandemic: Hospitals Battling Over Cardiac Surgery Referrals

A trial got underway Tuesday in 12-year-old litigation between two hospital operators, in New Jersey’s first complex civil jury trial to be conducted in person since the COVID-19 pandemic.

Superior Court Judge Douglas Hurd heard opening arguments in the suit by the Deborah Heart and Lung Center against Virtua Health, operator of five community hospitals. Deborah Heart brings claims of civil conspiracy and unfair competition with regard to Virtua’s referral practices. The trial is expected to run through December.

Deborah Heart, of Browns Mills, specializes in heart surgery. It claims that when patients of Marlton-based Virtua needed cardiac procedures it was not authorized to perform, it sent patients to a Philadelphia hospital, which is farther away than Deborah.

The suit claims Virtua staff also told patients Deborah was on the verge of closing and spread other disparaging and false information about it. Deborah alleges Virtua wanted to shut it down in order to take over its cardiac surgery license, and that Virtua violated patients’ rights under state law to be transferred to the hospital of their choice.

“I’m going to tell you during my opening statement about a conspiracy, a plan, to cause economic harm to my client, Deborah Heart and Lung Center, a charity hospital, in order to shut it down,” Anthony Argiropoulos of Epstein Becker & Green in Princeton, who represents Deborah, told the jury. “I’m going to tell you how the defendant, Virtua Health Inc., wanted my client to be shut down or forced into an unwilling merger, because my client had something that Virtua did not have but wanted very desperately, a cardiac surgery license.”

The jury will also hear from patients, and relatives of patients, who wanted to be transferred from Virtua to Deborah but were told they could not do so, Argiropoulos said.

A trial judge granted summary judgment in 2017 and 2018 to Virtua, its chief executive, a cardiologist group and several individual cardiologists. But in 2019 the Appellate Division reinstated the case. The appeals court upheld dismissal of Deborah’s claims of tortious interference with prospective economic advantage and disparagement but said the court below erred by dismissing claims for unfair competition and civil conspiracy.

On the unfair-competition claim, the appeals court said there were disputed material facts in the testimony regarding the competition for cardiac patients and that the jury should decide if any actions by defendants were undertaken to deprive Deborah of those patients. On the civil conspiracy claim, the appeals court said a jury should resolve that issue as well.

“There are material factual disputes related to defendants’ formulation of a plan to put Deborah out of business by depriving Deborah of patients, deliberately discouraging patients from transferring to Deborah, and making disparaging comments about the quality of care at Deborah that precluded summary judgment on Deborah’s civil conspiracy claim,” the panel said.