Bakes v. Denver Health and Hospital Authority.
2025 COA 47. Nos. 24CA0298 & 24CA0325. Health Care Worker Protection Act—Colorado Governmental Immunity Act—Colorado Whistleblower Act—Prefiling Notice of Claim.
May 8, 2025
Dr. Bakes worked for Denver Health and Hospital Authority (Denver Health) as an emergency room physician and as director of PreHealth Programs. She reported her concerns about Denver Health’s approach to youth violence and about the impact of systemic racism on Denver Health’s services. Dr. Bakes alleged that Denver Health wrongfully terminated her from her directorship and constructively discharged her from her employment after she made her report. She sued Denver Health on several claims, including, as relevant here, a claim under the Health Care Worker Protection Act (HCWPA). Denver Health moved to dismiss the HCWPA claim. The district court concluded that (1) the HCWPA claim is subject to the Colorado Governmental Immunity Act (CGIA) because Denver Health is a public entity and the claim sounds in tort, so the claim failed for lack of timely prefiling notice; and (2) the HCWPA doesn’t create a private right of action. Dr. Bakes separately filed for interlocutory appeal of both rulings, and the two appeals were consolidated.
On appeal, Dr. Bakes argued that potential HCWPA claims are not subject to the CGIA’s notice requirement because they are more similar to claims under the Colorado Anti-Discrimination Act’s (CADA) employment practices provisions—which are not subject the CGIA’s notice requirement—than claims under Colorado’s Whistleblower Act—which are subject to the CGIA’s notice requirement. When a claim falls under the CGIA’s scope, the claimant must give notice of the claim to the public entity within 182 days of discovering the injury, and compliance with this notice requirement is a jurisdictional prerequisite for an action against the public entity. The court of appeals determined that the HCWPA and the Whistleblower Act both protect whistleblowers’ good faith disclosures by prohibiting their employers from disciplining them in retaliation for such disclosures. But CADA’s purpose is different: it prohibits employment discrimination on the basis of certain protected characteristics and prohibits retaliation for opposing such discrimination. The court thus concluded that claims arising under the HCWPA lie or could lie in tort and more closely resemble claims under the Whistleblower Act than those under CADA, so such claims are subject to the CGIA’s notice requirement. And because it is undisputed that Dr. Bakes didn’t provide a prefiling notice of her HCWPA claim, the CGIA bars that claim.
Because the court affirmed the district court’s order on CGIA grounds, it did not address whether the HCWPA creates a private right of action.
The appeal was dismissed in part and the order was affirmed.