The Colorado Supreme Court made clear Monday that, although individual health care workers enjoy immunity from lawsuits investigating potential prescription drug theft, organizations are not protected either. for their role in reporting criminal activity.
Some Colorado laws grant immunity to “persons” who report crimes or elder abuse. However, the question for the Supreme Court is whether New Century Hospice can be held liable for handing over one of its employees to the Colorado Nursing Board if it suspects that he may have transferred opioid medications to a patient for an illegal purpose
The court said “yes,” because New Century is not a “person.”
“Relying on the plain meaning of ‘person,’ we hold that New Century is not entitled to immunity,” wrote Chief Justice Brian D. Boatright on Sept. 25 opinion, “because it is a corporation, not a person.”
Two members of the court have written separately to ask state lawmakers to reconsider whether lack of immunity for health care organizations is sound public policy. Specifically, Justice William W. Hood III warned, the law as written could prevent reports of opioid prescription theft at a time when drug overdose deaths are skyrocketing in Colorado.
“By granting immunity to individuals who report suspected prescription drug abuse, the legislature clearly intended to encourage such reporting,” Hood wrote for himself and Justice Monica M. Márquez. However, organizations that make similar reports may face lawsuits if the allegations are not substantiated.
“This inconsistent treatment seems shocking enough that it may not have been intended. If so, I encourage the legislature to clarify through new legislation the scope of immunity it purports to provide,” Hood added.
Currently, a legislative committee is meeting before the next session to study opioid and other substance use disorders. The chairman of the committee, Rep. Chris deGruy Kennedy, D-Lakewood, called the New Century case “interesting,” but did not believe the committee had enough time to explore the specific issue of liability for healthcare providers raised by Hood’s approval.
“I’m certainly open to discussing whether changes are needed here, but the potential implications go beyond the question of diverted opioids and will require a more comprehensive conversation,” he said.
The vice chairman of the committee, Sen. Kevin Priola, D-Henderson, told Colorado Politics: “We’ll look into it.”
In the underlying case, Tana Edwards was a nurse who worked for New Century in its various offices in the Denver and Colorado Springs areas. After she began caring for a 92-year-old patient through the Castle Rock office, her supervisor, Kathleen Johnson, noticed that the patient was receiving an unusual number of prescription oxycodone pills.
Johnson and another New Century employee traveled to the patient’s home in December 2019 to inventory all of the medication, and they calculated that 465 pills were missing. Believing that Edwards took them, New Century launched an investigation.
The company filed a report with Castle Rock police and notified the state health department, including the Colorado Board of Nursing. Edwards agreed to voluntarily suspend his nursing license in the face of the allegations.
However, local prosecutors declined to pursue criminal charges and the board of nursing cleared Edwards of the same, giving him only a warning for the future.
Edwards then sued Johnson and New Century, saying the investigation was flawed and ignored the presence of an “overflow” pill container at the patient’s home that would have explained where the missing medication ended up.
In December 2022, Denver District Court Judge Mark T. Bailey dismissed most of Edwards’ claims. Johnson acted in good faith to report the suspected drug theft, he concluded, so he is entitled to immunity. However, New Century could be sued for the damage Edwards allegedly caused because it was not a “person” and, therefore, not immune.
“The consequences of improper reporting are serious and, as this case demonstrates, can include a criminal investigation, suspension of a nurse’s license, interference with patient relationships, and embarrassment and concern for the reportee. individual,” Bailey wrote.
New Century appealed to the Supreme Court, arguing that it faced trial for doing what the law required it to do – reporting a potential crime. Additionally, the loss of immunity will lead other health care organizations to think twice about investigating prescription drug theft.
“Because the Trial Court’s decision undermined public policy by discouraging health care entity cooperation with reportable offenses and its decision produced an unjustified result, it abused its discretion ,” lawyers wrote to New Century.
The Supreme Court ended the context of immunity laws clarifying that they apply only to individuals, not corporations. Although a provision clearly protects corporations, immunity only kicks in when a report raises the possibility that further criminal conduct may occur in the future. Since it was unclear whether the New Century report satisfied the criteria, the Supreme Court left the issue for trial.
Hood, in his concurrence, said he would “urge” the General Assembly to reexamine immunity laws, given the potential chilling effect the court’s decision could have on cooperation with organizations to health care to combat drug overdoses.