The Colorado Supreme Court next week will consider whether a Denver judge was correct when he declined to bar confidential documents from being used in a lawsuit after the state had previously released them publicly through an open records request.

“Plaintiffs have already refused the Attorney General’s demand that they stop using and destroy the privileged documents,” argued Porter Adventist Hospital located in Denver to the court. “[N]o Colorado court has previously considered a situation like this.”

At issue in the case are several hundred documents that Porter Adventist says the state’s health department released to the plaintiffs – but should not have – shortly before they filed their lawsuit.

Two hundred sixty-eight people, including patients who underwent surgeries at the hospital and their surviving family members in some instances, claimed that faulty infection control and sterilization procedures led to injuries. Lead plaintiff Renee Camp returned to the hospital two weeks after her 2016 knee surgery after she reportedly developed a severe infection in her knee joint. 

The Colorado Department of Public Health and Environment also investigated, and the hospital, which Centura Health operates, handed over documents to the state in the process. The Denver Post reported in 2019 on the department’s findings, including that Porter Adventist did not know of the increase in surgical-related infections and did not report many of them to a tracking system.

The hospital sent more than 5,000 letters to patients warning about the risk of hepatitis or HIV following their surgeries. Documented incidents included chunks of bone found in a surgical pan, blood on a surgical drill bit and a dead bug in a surgical tray.

Before filing the lawsuit, the plaintiffs used the Colorado Open Records Act to request information about the CDPHE’s investigation. The department released documents in August 2018, including approximately 400 that the hospital considered confidential, allegedly without informing Porter Adventist. 

Upon learning of the lawsuit and its contents, the hospital quickly requested that a Denver court bar the plaintiffs from using certain company documents in their lawsuit, and to go so far as to destroy or return those records “inadvertently disclosed in error by the CDPHE.” The hospital said the documents fell in the categories of quality assurance, infection rates and investigations, and that Colorado law protected them as confidential.

Allowing information about hospitals’ confidential quality management processes to be aired openly, the hospital contended, “undermines public policy by discouraging cooperation between hospitals and CDPHE,” possibly by withholding information from the health department in the future.

The Colorado Attorney General’s Office also agreed the health department should have withheld the disputed records.

Denver District Court Judge Morris B. Hoffman denied a series of protective orders to the hospital in July 2020 in the various cases involving Porter Adventist. He cited in part the period of time the hospital waited to make the request and an inability to tell whether legal privileges applied given the hospital’s description of the records.

Sean Connelly, an attorney for the plaintiffs, defended Hoffman’s decision. “Because the information was public before any lawsuit was even filed, the district court had no power to grant a protective order,” he wrote in a brief. “The Hospital did not file its protective order motion until May 2020, even though the trial court found it knew or should have known of the CDPHE’s 2018 disclosures no later than December 2018.”

Deanne C. McClung, an attorney with Hall & Evans representing PorterCare Adventist Health System, countered that Hoffman should have held a closed-door review of the documents to decide whether to prevent their use. McClung argued the hospital did not wait to “claw back” the released documents, and engaged with CDPHE once it learned about the release.

“Thus, until the Hospital made its own request to CDPHE and obtained the documents that had been produced to Plaintiffs, it was not aware of what was disclosed or that CDPHE was the source,” she argued.

Connelly characterized the hospital’s petition to the Supreme Court as an attempt to “restrict access to public health information regarding an infection control breach that harmed thousands of patients.” He added that the plaintiffs acquired the documents lawfully, “and the public is better off as a result.”

In doing so, the plaintiffs maintain a protective order would violate the First Amendment by suppressing publicly-available information. Even if Colorado’s open records law should have shielded the disputed documents, they argue that confidentiality is now lost as a result of the CDPHE release.

McClung wrote that because the documents were supposed to be confidential and not subject to public disclosure, there was no conflict with the First Amendment.

The Supreme Court will hear oral arguments on the issue on Jan. 13. The case is Camp et al. v. Adventist Health System Sunbelt Health Corporation et al.