Colorado Court of Appeals rules that claims under the Health Care Worker Protection Act are subject to the Colorado Governmental Immunity Act
On May 8, the Colorado Court of Appeals concluded that any claim that might be asserted under the Health Care Worker Protection Act (“HCWPA”), C.R.S § 8-2-123, is subject to the notice requirement in the Colorado Governmental Immunity Act (“CGIA”), C.R.S. § 24-10-109.
The CGIA and its Notice Requirement
The CGIA immunizes public entities from all claims for injury that “lie in tort or could lie in tort.”
When a claim falls within the scope of the CGIA, the claimant must provide notice of the claim to the public entity within 182 days of discovering the injury. Compliance with this notice requirement is a jurisdictional prerequisite for an action against a public entity under the CGIA.
Facts of the Case and Holding of the Court
In Bakes v. Denver Health, Dr. Bakes filed an action asserting three claims against Denver Health, including a claim under the HCWPA. Dr. Bakes alleged that she worked for Denver Health as an emergency room physician and as Director of PreHealth Programs and that Denver Health wrongfully terminated her from her directorship and constructively discharged her from her employment after she made reports about concerns relating to patient safety, systemic racism, quality of patient care and Denver Health’s approach to youth violence.
Denver Health moved under C.R.C.P. 12(b)(1) arguing that Dr. Bakes’ HCWPA claim was subject to the CGIA because Denver Health is a public entity (a fact that wasn’t disputed) and that her claim sounded in tort, and that because Dr. Bakes did not notice of the claim to Denver Health within 182 days (which was undisputed) her claim failed for lack of timely prefiling notice. The district court agreed and dismissed the case. Dr. Bakes appealed.
The Colorado Court of Appeals concluded that any claim that may be asserted under the HCWPA lies or could lie in tort and therefore is subject to the CGIA’s notice requirement. And because it is undisputed that Dr. Bakes didn’t provide any prefiling notice of her HCWPA claim, that claim is barred under the CGIA.
Key Takeaway
This was a case of first impression, and it seems reasonable that the Colorado Supreme Court would hear the case if Dr. Bakes sought to further appeal the decision. In the meantime, plaintiffs seeking recovery under the Health Care Worker Protection Act must adhere to the CGIA’s 182-day notice requirement. Likewise, governmental and public entities must pay attention to whether the required notice was provided in each claim as the failure to meet the CGIA’s requirements is grounds for dismissal of the case.
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