Judge Rejects Injunction To Stop Construction On Children's Hospital Healing Garden

A Suffolk Superior Court judge has denied a request for a preliminary injunction that would have stopped Boston Children's Hospital from continuing any construction-related work on the site of its planned new clinical building. The plans call for the demolition of Prouty Garden, a healing garden that was bestowed to the hospital 60 years ago.

A group of people opposed to the development project — plaintiffs include family members of patients who've used Prouty Garden and physicians — had asked the judge to issue the injunction, saying the hospital has illegally started work on the site before the state Department of Public Health issues its approval.

The judge ruled the plaintiffs didn't meet the burden of proving they're likely to succeed in a lawsuit, but can still press forward with a suit challenging the project.

"On the merits, however, Plaintiffs have not shown that the Hospital is acting illegally by moving forward with its current construction work before receiving [Determination of Need] approval for the [Boston Children's Clinical Building] project from DPH," wrote Justice Kenneth Salinger. The ruling adds that a preliminary injunction "is an extraordinary remedy never awarded as of right."

Salinger explained in his ruling that the hospital received prior approval from DPH for site work to prepare for the demolition the Wolbach Building, a historic building DPH agreed could be torn down whether the clinical building gets approved or not. That work has so far included drilling within Prouty Garden to determine the properties of the soil and rock at the site. The judge said the hospital plans to repair those drilling sites after the boring samples are complete.

A Boston Children's spokesman, Rob Graham, issued a statement saying the hospital has pursued the building project for more than three years in order to meet the needs of patients and staff, as well as the growing demand for the hospital's care. The planned building would allow the hospital to have all single patient rooms; it would also house a new neonatal intensive care unit, operating rooms and cardiac center.

"Throughout the public process we’ve earned approval at every step of the way," the statement reads. "We are pleased that the Court’s decision today will allow this project to continue."

The planned building, with a price tag of more than $1 billion, was previously approved by the Boston Redevelopment Authority, Boston Zoning Commission and the state's Executive Office of Energy and Environmental Affairs.

Attorney Greg McGregor, who represents the plaintiffs, called the ruling a "victory" in that the judge rejected some of Boston Children's Hospital's arguments.

"It is now clear that we have a right to sue for their alleged violations of the Determination of Need law and seek the requested relief, which is to stop the construction work in the Garden," McGregor said in a written statement.

State law mandates that DPH review and approve any substantial capital expenditure to build or expand a health care facility. Through the Determination of Need process, DPH decides whether the facility is needed to meet medical care demands in the region or whether it would represent a duplication of services.

Boston Children's Hospital filed its application for Determination of Need in December 2015. The application is pending as DPH awaits an independent cost analysis of the project it ordered the hospital to commission.