Although the state’s health department released confidential hospital documents inadvertently in response to an open records request, Colorado’s Supreme Court justices appeared hesitant on Wednesday to overturn a Denver judge’s order that prevented the facility from blocking former patients from using them in a lawsuit.

Porter Adventist Hospital in central Denver, which Centura Health operates, is defending against a lawsuit by more than 200 former patients and, in some cases, their surviving spouses, who allege injuries from improperly sterilized surgical equipment. In responding to an open records request in 2018 from the plaintiffs’ attorneys, other law firms and the media, the Colorado Department of Public Health and Environment released hospital documents that Porter Adventist considered confidential because they contained quality management details.

CDPHE and the attorney general’s office conceded this was a mistake, and Porter Adventist asked Denver District Court Judge Morris B. Hoffman for a protective order preventing the plaintiffs from using the released documents in their lawsuit. Hoffman said the hospital had not clearly laid out why it deserved confidentially, or privilege, for each document.

“There are no guidelines for how to handle this type of thing. In my 25 years I’ve never seen CDPHE disclose documents that are inappropriate,” Deanne McClung, an attorney for the hospital at Hall & Evans, told the justices. She would have preferred Hoffman to review the materials behind closed doors before making a confidentiality judgment.

However, the members of the court pressed McClung to explain why Hoffman was wrong to reject the hospital’s request, especially considering Porter Adventist did not provide him with full documentation.

“It’s your burden of proof. Why is it on the district court?” asked Justice Richard L. Gabriel at oral argument.

“What legal obligation did he have to drill down on this with you?” echoed Justice William W. Hood, III. “What should he have done instead?”

“There’s all other kinds of privilege where that’s not the procedure,” said Justice Maria E. Berkenkotter, a former trial court judge who participated in oral argument for the first time this week following her recent appointment.

In 2019, news reports publicized that a state investigation documented 76 instances of contaminated surgical instruments and trays brought into operating rooms throughout 2017 and 2018. The hospital did not track data or change its operations in a timely manner, according to The Denver Post. State documents included descriptions from managers of sterilization backlogs, understaffing and no procedural changes following contamination problems.

“Those public reports, which petitioners now seek to suppress, detail several incidents of bugs, bone, blood and other bioburden on surgical instruments that were supposedly going to be sterile,” said Sean Connelly, an attorney for the plaintiffs, using a medical term for bacterial contamination.

Connelly accused the hospital of actually pursuing a “suppression order” for the facts of the case. David Woodruff, Connelly’s co-counsel, argued that the hospital should have asserted confidentiality when it turned over documents to the health department in the first place, and in any event waited too long after the release to ask the court for intervention.

“They were talking to the attorney general’s office, in my opinion trying to manipulate the attorney general’s office into reaching a conclusion that those documents had been inappropriately disclosed,” Woodruff explained on Wednesday. “However, the attorney general’s office doesn’t have the ability to do that.”

He added that it would be unfair to the plaintiffs who had built their case on the approximately 400 contested documents for the court to deny their use as evidence.

The lawsuit alleges that, among other injuries, one patient died after a 2017 surgery due to an infection. The hospital notified 5,800 patients in 2018 that sterilization issues could have affected them during their surgeries.

The case is Camp et al. v. Adventist Health System Sunbelt Health Corporation et al.