Court Opinion: Colorado Supreme Court Opinion for Sept. 25

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

In Re Edwards v. New Century Hospice, Inc. et al.

The Colorado Supreme Court en banc discharged a rule.

In this original proceeding pursuant to Colorado Appellate Rule 21, the Colorado Supreme Court reviewed the trial court’s order denying immunity to defendant New Century Hospice, Inc. and its subsidiaries, defendants Legacy Hospice, LLC, doing business as New Century Hospice of Denver, LLC and Legacy Hospice of Colorado Springs, LLC (collectively New Century). New Century argued it’s entitled to immunity under four different statutes.

Three of the statutes, Colorado Revised Statute 12-20-402(1) — “the Professions Act;” CRS 12-255-123(2) — “the Nurse Practice Act;” and CRS 18-6.5-108(3) — “the Mandatory Reporter statute,” only authorize immunity for a “person.” Relying on the plain meaning of “person,” the state high court held New Century isn’t entitled to immunity under these three statutes because it’s a corporation, not a person.

The fourth statute — CRS 18-8-115 — “the Duty to Report statute,” explicitly entitles corporations to immunity, but only if certain conditions are met, the opinion said. Applying the plain language of the statute, the Colorado Supreme Court held New Century isn’t entitled to summary judgment on the issue of immunity under this statute because it didn’t carry its burden of demonstrating that all such conditions were met.

Accordingly, the state high court discharged the rule to show cause.

According to the opinion, Tana Edwards brought this action against New Century (her former employer) and Kathleen Johnson, the director of operations for New Century Castle Rock (collectively the defendants). As part of her employment with New Century, Edwards provided in-home care to an elderly patient.

In December 2019, Johnson began to suspect Edwards was diverting pain medications from the patient. The defendants reported the suspected drug diversion to the Castle Rock Police Department and the Colorado Department of Public Health and Environment. The defendants also lodged a complaint against Edwards’s nursing license with the Colorado Board of Nursing.

After investigations, no criminal charges were filed and no formal disciplinary actions were taken against Edwards. Edwards subsequently brought this action against the defendants, alleging claims for negligent supervision and negligent hiring against New Century, as well as claims for defamation and intentional infliction of emotional distress against New Century and Johnson.

The defendants filed a motion for summary judgment. The trial court granted the motion as to Edwards’s claims for negligent hiring, defamation and intentional infliction of emotional distress, finding that the claims were either time-barred or couldn’t be proven.

But the court denied the motion as to Edwards’s negligent supervision claim against New Century. The trial court concluded New Century wasn’t entitled to immunity under “the Professions Act,” “the Nurse Practice Act” or “the Mandatory Reporter statute” because those statutes only provide immunity for a “person,” a term that doesn’t include corporations like New Century. 

As to “the Duty to Report statute,” the trial court concluded it was disputed whether New Century had complied with the statute, which provides for immunity where a party “disclose[s] information concerning a suspected crime to other persons or corporations for the purpose of giving notice of the possibility that other such criminal conduct may be attempted which may affect the persons or corporations notified.” The court concluded New Century had failed to meet its initial burden of showing, as a matter of law, that (1) the board was a “person” or “corporation,” or (2) New Century reported Edwards to the board for the purpose of notifying it that Edwards might attempt other criminal conduct that would affect it.

New Century filed a motion for reconsideration pursuant to Colorado Rule of Civil Procedure 60 and a motion for certification of a question of law pursuant to CRS 13-4-102.1, both of which the trial court denied. New Century then sought appellate relief under C.A.R. 21 and the Colorado Supreme Court issued a rule to show cause.

As previously explained, the Colorado Supreme Court discharged the rule to show cause.

Justice William Hood III was joined by Justice Monica Márquez in a special concurrence.

“Despite the allure of New Century’s policy arguments, I agree that the language and structure of these controverted immunity statutes immunize human beings, not corporations. I therefore join the court’s opinion in full. Still, I write separately to urge the General Assembly to clarify whether it intended to provide similar immunity to corporate entities under section 12-20-402(1), C.R.S. (2023) (“the Professions and Occupations Act”); section 12-255-123(2), C.R.S. (2023) (“the Nurse and Nurse Aide Practice Act”); and section 18-6.5-108(3), C.R.S. (2023) (“the Mandatory Reporter statute”),” Hood wrote.

CORRECTION NOTE: The case name was changed Sept. 26 to more accurately reflect the court document.

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