A D.C. Superior Court judge denied the city's request to close the Laurel abortion clinic yesterday, saying the city had no recent examples to show there was an immediate danger to the public's health.
The D.C. corporation counsel sought a temporary restraining order and preliminary injunction against the clinic at 1712 I St. NW at the request of Mayor Marion Barry. The court action came in the wake of city action to remove the clinic's operating license and the medical license of its owner, Dr. Milan Vuitch. A hearing on the preliminary injunction was set for Nov. 29.
Judge Stephen F. Eilperin said the city's attempt to deny the clinic a license should continue before the Board of Appeals and Review. The board has not yet set a date for a hearing on the charges that the clinic used anesthetics improperly, kept poor records and has lost several malpractice actions, including one in which a young woman died.
Vuitch has denied the allegations.
A criminal misdemeanor charge for failing to keep accurate records regarding the use of general anesthetics was filed against Vuitch on Thursday by the corporation counsel. It carries a maximum penalty of a $300 fine and 90 days in jail. He is scheduled to be arraigned on the charge Nov. 23 in D.C. Superior Court.
"We keep records, so I don't know why they are complaining," said Vuitch, who appeared in an hour-long hearing before Judge Eilperin. "The city is trying to push this too fast."
Vuitch's downtown clinic, which has operated without a current license since 1982, was the focus of several City Council committee meetings as licensing officials explained why the clinic was allowed to operate and council members drafted a bill to give the mayor new authority to close health facilities.
The District of Columbia government "has not been sitting on its hands as has been alleged," said Carol Thompson, director of the Department of Consumer and Regulatory Affairs. She told a council panel that her department first became aware of "numerous deficiencies" at the Laurel clinic in 1980 and first proposed denying its license in 1981.
Inspectors hired by the city have surveyed the clinic six times since the city began regulating abortion clinics in 1979.
City records show that the department renewed the clinic's license twice, following inspections that raised serious questions about the clinic's practices. Some of the reported violations included having unqualified persons give anesthetics and drugs; failure to record narcotic drugs on patient charts, and using expired drugs.
But in testimony before council members and in interviews, it was revealed that city licensing authorities filed no objection to Dr. Vuitch's June 15, 1982, request to receive a new license and that the D.C. Healing Arts Commission received a doctor's complaint against Vuitch 10 months before referring the case to the corporation counsel.
The healing arts commission put Vuitch's license status on its April agenda, but did not vote to refer it for charges until October. P. Joseph Sarnella, director of the commission, said the group deferred the matter for five months because it had a heavy agenda. On one occasion, no action was taken because of no quorum. On another date, the commission failed to hold its monthly meeting.
Furthermore, the hearing examiner who handled the Laurel clinic case said that a badly written District law and scanty evidence by licensing authorities caused the clinic to be reissued its most recent license.
Holloway Wooten, currently chief of the D.C. Office of Fair Hearing, was a hearing examiner in 1982 when he rejected the licensing authorities' request to deny Vuitch an operating license for the Laurel clinic.
The 1978 law governing ambulatory and surgical centers, such as the Laurel Clinic, has "nonexistent and nondefined standards," Wooten wrote, in explaining why the city could not refuse Vuitch a license.
Further, the city's licensing officials "offered no evidence" in 1982 by which to deny Vuitch a license, Wooten said yesterday. He said the transcript of the case is "extremely embarrassing" to the city because of its deficiencies.
Joyce McCray, a spokeswoman for the Department of Consumer and Regulatory Affairs, noted that the department was created from another city agency in 1983 and said she could not comment on why the former agency did not seek to strengthen the city law following Wooten's decision.
A new law governing health facilities in the District was passed in 1983, but did not include ambulatory and surgical centers. "It was part oversight and part that no one asked us to include them, perhaps since the other law was so recent," said Julie Rogers, staff director of a council committee overseeing health matters.
Several council members, led by Polly Shackleton (D-Ward 3), said they would introduce on Tuesday a measure to correct the oversight and include ambulatory and surgical centers in the 1983 law. This gives the mayor the authority to write rules to close health facilities before a hearing is held if the facility is determined to be unsafe.
But council member Betty Ann Kane (D-At large), while supporting the measure to strengthen the city's power, said, "I do not accept the excuse that the current regulations do not give the city the power to close it now. . . .I believe the tools are there."
Kane spoke at a press conference organized by a coalition of citizens groups that is trying to close the clinic. At the session, a 29-year-old Hyattsville woman who received an abortion 15 years ago from Vuitch charged that he used no anesthetic to perform the operation. The woman's mother, who also appeared at the press conference, said she gave the doctor $300 in cash for the abortion, which took place when her daughter was five months pregnant.
Thompson, director of the licensing department, said that city law and department policies created delays. When a licensing case is contested, the law requires that a hearing be held before any action is taken to suspend, revoke or deny a license renewal, she said. Meanwhile, department policy allows licensees to operate until some action is taken.
In the Laurel clinic case, that policy meant that the clinic received a 1981 renewal license in July 1982, and a 1982 license in August 1983.
"This case points up the worst of all possible worlds," Thompson told the council panel. "As you know, hindsight is 20-20. . . ."