Bakes v. Denver Health

2025 COA 47

• Court: Colorado Court of Appeals
• Decided: May 8, 2025
• Docket: 24CA0298 & 24CA0325
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 8, 2025

2025COA47

Nos. 24CA0298 & 24CA0325, Bakes v. Denver Health — Labor and Industry — Health Care Worker Protection Act; Government — Colorado Governmental Immunity Act — Notice of Claim

As a matter of first impression, a division of the court of

appeals considers whether any claims that might be asserted under

the Health Care Worker Protection Act (HCWPA), § 8-2-123, C.R.S.

2024, are subject to the notice requirement in the Colorado

Governmental Immunity Act (CGIA), § 24-10-109, C.R.S. 2024.

Without determining whether the HCWPA provides for a

private right of action, the division concludes that any claim that

might be asserted under the statute is subject to the CGIA’s notice

requirement. The division rejects the plaintiff’s argument that a

potential HCWPA claim is akin to a claim under the employment

practices provisions of the Colorado Anti-Discrimination Act (CADA), §§ 24-34-400.2 to -408, C.R.S. 2024, which isn’t subject to

the CGIA’s notice requirement. Instead, the division concludes that

a potential HCWPA claim is more similar to a claim under the

Whistleblower Act, §§ 24-50.5-101 to -107, C.R.S. 2024, which is

subject to the CGIA’s notice requirement.

The division therefore affirms the district court’s order

dismissing the plaintiff’s HCWPA claim on the basis that the

plaintiff did not provide any prefiling notice of the claim. COLORADO COURT OF APPEALS 2025COA47

Court of Appeals Nos. 24CA0298 & 24CA0325 City and County of Denver District Court No. 22CV31323 Honorable Martin F. Egelhoff, Judge

Katie Bakes, MD,

Plaintiff-Appellant,

v.

Denver Health and Hospital Authority,

Defendant-Appellee.

APPEAL DISMISSED IN PART AND ORDER AFFIRMED

Division A Opinion by JUDGE GOMEZ Tow and Kuhn, JJ., concur

Announced May 8, 2025

Lowrey Parady Lebsack, LLC, J. Bennett Lebsack, Ariel B. DeFazio, Denver, Colorado, for Plaintiff-Appellant

O’Hagan Meyer, PLLC, Meredith L. McDonald, Alice Conway Powers, Brian R. DeMocker, Denver, Colorado, for Defendant-Appellee ¶1 In this interlocutory appeal, we are asked to decide whether

any claims that might be asserted under the Health Care Worker

Protection Act (HCWPA), § 8-2-123, C.R.S. 2024, are subject to the

notice requirement in the Colorado Governmental Immunity Act

(CGIA), § 24-10-109, C.R.S. 2024. We conclude that they are. We

therefore affirm the district court’s order dismissing the HCWPA

claim that plaintiff, Dr. Katie Bakes, asserted against defendant,

Denver Health and Hospital Authority (Denver Health).

I. Background

¶2 Dr. Bakes previously worked for Denver Health as an

emergency room physician and as Director of PreHealth Programs.

She alleges that Denver Health wrongfully terminated her from her

directorship and constructively discharged her from her

employment after she made a good faith report about concerns

relating to patient safety or the quality of patient care —

specifically, concerns about Denver Health’s approach to youth

violence and systemic racism’s impact on Denver Health’s services.

¶3 Dr. Bakes filed this action asserting three claims against

Denver Health, including, as relevant here, a claim under the

HCWPA. Denver Health filed motions under C.R.C.P. 12(b)(1) and

1 (5) and C.R.C.P. 56(h), asserting two bases for dismissal of the

HCWPA claim. The district court granted the motions on both

grounds. The court first concluded that the HCWPA claim is

subject to the CGIA because Denver Health is a public entity (a fact

that wasn’t disputed) and the claim sounds in tort; therefore, the

claim failed for lack of timely prefiling notice. The court also

concluded that the HCWPA doesn’t create a private right of action.

¶4 Dr. Bakes filed an interlocutory appeal of the district court’s

CGIA ruling under section 24-10-108, C.R.S. 2024. Uncertain

whether that appeal would encompass the ruling regarding the lack

of a private right of action, she also filed a petition for interlocutory

appeal of that ruling under C.A.R. 4.2(b). A division of this court

granted the petition and consolidated the two appeals.

II. CGIA

¶5 We begin and end our review with the CGIA. Specifically, we

conclude that any claims that might be asserted under the HCWPA

are subject to the CGIA’s notice requirement. Therefore, we affirm

2 the order of dismissal on that basis and don’t address whether the

HCWPA creates a private right of action.1

A. Standard of Review and Applicable Law

¶6 We review matters of statutory interpretation de novo. Nieto v.

Clark’s Mkt., Inc., 2021 CO 48, ¶ 12. Our primary goal in

interpreting a statute is to ascertain and give effect to the General

Assembly’s intent. Elder v. Williams, 2020 CO 88, ¶ 18. We do so

by applying the plain and ordinary meanings of a statute’s words

and phrases; giving consistent, harmonious, and sensible effect to

all of the statute’s parts; and avoiding constructions that would

render any words or phrases superfluous or would lead to illogical

or absurd results. Id. Where statutory language is unambiguous,

we give effect to its plain and ordinary meaning. Burnett v. State

Dep’t of Nat. Res., 2015 CO 19, ¶ 12.

1 Because we affirm the district court’s order on CGIA grounds

without any need to consider the issue on which the consolidated appeal was accepted under C.A.R. 4.2, we now dismiss that portion of the appeal. Not only is it moot, but it no longer satisfies the requirement that immediate review would promote a more orderly disposition or establish a final disposition of the litigation. See C.A.R. 4.2(b)(1).

3 ¶7 The CGIA limits the potential liability of public entities for

compensatory damages in tort. City of Aspen v. Burlingame Ranch

II Condo. Owners Ass’n, 2024 CO 46, ¶ 29. Under the CGIA, absent

a waiver, public entities are “immune from liability in all claims for

injury that lie in tort or could lie in tort, regardless of whether that

may be the type of action or the form of relief chosen by the

claimant.” § 24-10-106(1), C.R.S. 2024; see also § 24-10-108

(“sovereign immunity shall be a bar” to any such action in the

absence of a waiver).

¶8 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. § 24-10-109(1). Compliance with

this notice requirement is a jurisdictional prerequisite for an action

against the public entity. Id.

¶9 To determine whether a claim falls within the scope of the

CGIA, courts consider two primary things: (1) the nature of the

injury and (2) the relief sought. Burlingame Ranch, ¶ 31.

¶ 10 As to the nature of the injury, “[w]hen the injury arises either

out of conduct that is tortious in nature or out of the breach of a

duty recognized in tort law, and when the relief seeks to

4 compensate the plaintiff for that injury, the claim likely lies in tort

or could lie in tort for purposes of the CGIA.” Elder, ¶ 22 (quoting

Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo.

2008)); accord Bd. of Cnty. Comm’rs v. Colo. Dep’t of Pub. Health &

Env’t, 2021 CO 43, ¶ 38. Thus, the CGIA encompasses claims

“arising from the breach of a general duty of care, as distinguished

from contractual relations or a distinctly non-tortious statutorily-

imposed duty.” Elder, ¶ 22 (quoting Colo. Dep’t of Transp. v. Brown

Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008)).

¶ 11 As to the relief sought, while “the nature of the relief requested

is not dispositive as to whether a claim lies in tort,” it “may inform

[a court’s] understanding of the nature of the injury and the duty

allegedly breached.” Id. at ¶ 23; accord Bd. of Cnty. Comm’rs, ¶ 39.

“This is particularly true in the case of a statutory claim without

origins in common law in which, for example, the legislature

intended to address constitutionally based concerns of equality

rather than compensation for personal injuries.” Elder, ¶ 23; see

also Brown Grp. Retail, 182 P.3d at 690 (“[W]e have distinguished

some statutorily created duties, despite their general and non-

5 contractual nature, on the basis of their broad policy rather than

compensatory goals . . . .”).

¶ 12 Because the CGIA is in derogation of the common law, we

must strictly construe its immunity provisions. See Elder, ¶ 20.

B. Application of the CGIA to a Potential HCWPA Claim

¶ 13 The HCWPA prohibits a health care provider from “tak[ing]

disciplinary action against a health-care worker in retaliation for

making a good faith report or disclosure” regarding patient safety

information or the quality of patient care. § 8-2-123(2)(a); see also

§ 8-2-123(1)(b).

¶ 14 The parties dispute whether any claims that might be asserted

under this statute are more akin to claims under the Whistleblower

Act, §§ 24-50.5-101 to -107, C.R.S. 2024 — which are subject to

the CGIA’s notice requirement — or claims under the employment

practices provisions of the Colorado Anti-Discrimination Act

(CADA), §§ 24-34-400.2 to -408, C.R.S. 2024 — which are not.

¶ 15 The Whistleblower Act generally prohibits an appointing

authority or supervisor from “initiat[ing] or administer[ing] any

disciplinary action against [a state] employee on account of the

employee’s disclosure of information” about an action, policy,

6 regulation, practice, or procedure, including but not limited to the

waste of public funds, abuse of authority, or mismanagement of a

state agency. § 24-50.5-103, C.R.S. 2024; see also § 24-50.5-

102(2)-(3), C.R.S. 2024. A state employee who believes they were

subjected to discipline in violation of this act may pursue

administrative charges and, if unsuccessful, may bring civil claims

in district court. §§ 24-50.5-104, -105, C.R.S. 2024.

¶ 16 The supreme court recognized in State Personnel Board v.

Lloyd that, in enacting the Whistleblower Act, “the General

Assembly created a noncontractual, statutory action for retaliatory

discharge that is tortious in nature.” 752 P.2d 559, 563 (Colo.

1988). “Because section 24-50.5-103 is a statutory tort,” the court

held, “the expressed intent of the General Assembly requires that

actions under the statute be subject to the [CGIA’s] notice of claim

provision.” Id.; see also Conde v. Colo. State Dep’t of Pers., 872 P.2d

1381, 1384 (Colo. App. 1994) (“Because the [Whistleblower Act] was

intended to create a non-contractual, statutory action which is

tortious in nature, a claim brought under that statute is subject to

the notice requirements of the [CGIA].”); Sussman v. Univ. of Colo.

Health Scis. Ctr., 706 P.2d 443, 444-45 (Colo. App. 1985) (a claim

7 for wrongful termination in retaliation for filing a worker’s

compensation claim sounded in tort and, thus, was subject to the

CGIA’s notice requirement).

¶ 17 By contrast, CADA prohibits an employer from, among other

things, taking adverse action against a qualified employee because

of their disability, race, creed, color, sex, sexual orientation, gender

identity, gender expression, marital status, religion, age, national

origin, or ancestry and discriminating against anyone who has

opposed such an action. § 24-34-402(1)(a)(I), (e)(IV), C.R.S. 2024.

¶ 18 The supreme court held in Elder that claims under CADA do

not and cannot lie in tort and, thus, are not subject to the CGIA.

Elder, ¶ 27. The court reasoned that CADA doesn’t have origins in

the common law and that claims under CADA don’t arise from the

breach of a general duty of care. Id. at ¶ 24. Instead, the court

explained, the General Assembly adopted CADA’s anti-

discrimination provisions to “fulfill the ‘basic responsibility of

government to redress discriminatory employment practices on the

basis of race, creed, color, sex, age, national origin, or ancestry.’”

Id. (quoting City of Colorado Springs v. Conners, 993 P.2d 1167,

1174 (Colo. 2000)). The court also explained that CADA was “not

8 designed primarily to compensate individual claimants but rather to

eliminate discriminatory practices as defined by [the statute].” Id.

(quoting Conners, 993 P.2d at 1174). “As a result, any benefits to

an individual claimant resulting from a claim under CADA . . . are

‘merely incidental’ to th[e] [statute’s] greater purposes of eliminating

workplace discrimination.” Id. (quoting Brooke v. Rest. Servs., Inc.,

906 P.2d 66, 71 (Colo. 1995)); see also Conners, 993 P.2d at 1173-

74 (claims under the predecessor statute to CADA aren’t subject to

the CGIA).

¶ 19 We conclude that any claims that might arise under the

HCWPA more closely resemble claims under the Whistleblower Act

than those under CADA and, therefore, that any such claims are

subject to the CGIA’s notice requirement. Fundamentally, the

HCWPA and the Whistleblower Act both protect whistleblowers who

make good faith disclosures by prohibiting their employers from

disciplining them in retaliation for such disclosures. See § 8-2-

123(2)(a); § 24-50.5-103(1). CADA serves a different purpose by

prohibiting employment discrimination on the basis of certain

protected characteristics and prohibiting retaliation for opposing

such discrimination. See § 24-34-402(1)(a)(I), (e)(IV).

9 ¶ 20 Dr. Bakes makes three primary comparisons between the

statutes in arguing otherwise. We reject all three.

¶ 21 First, Dr. Bakes argues that, like claims under CADA, any

claims that might arise under the HCWPA wouldn’t have origins in

the common law and wouldn’t arise from the breach of any general

duty of care. She points out that, shortly before the statute was

enacted, a division of this court held that a nurse allegedly

terminated from a hospital for advocating on behalf of a patient and

reporting a concern about the patient’s treatment had no cognizable

claim for wrongful discharge in violation of public policy because no

clearly expressed public policy was at stake. Jaynes v. Centura

Health Corp., 148 P.3d 241, 243-47 (Colo. App. 2006).

¶ 22 But whistleblower claims like those that might arise under the

HCWPA do have some basis in the common law. Colorado courts

have long recognized common law claims for wrongful discharge in

violation of public policy — and those are tort claims subject to the

CGIA. See Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 108-10

(Colo. 1992); Holland v. Bd. of Cnty. Comm’rs, 883 P.2d 500, 508

(Colo. App. 1994). While the division in Jaynes may not have found

a sufficiently expressed public policy to support such a claim in

10 that case, 148 P.3d at 243-47, the HCWPA’s legislative declaration

seems to be directed at filling that void. The declaration states that

“[i]t is a violation of public policy in the state of Colorado for a

health care worker to be fired or penalized for fulfilling [their]

professional obligations” and pronounces a legislative “obligation” to

“remedy the existing silence in state law and create a framework for

health care employers and employees to protect patients, safeguard

professional obligations, and maintain the standards that

employers and health care workers need to deliver quality health

care to Colorado citizens.” Ch. 67, secs. 1(c), (2), 2007 Colo. Sess.

Laws 283-84. Thus, the HCWPA may have expanded upon the

common law, but it still has underpinnings in that common law,

much like the Whistleblower Act but unlike CADA.

¶ 23 Second, Dr. Bakes argues that, like CADA, the HCWPA fulfills

broader legislative policies — in this case, promoting patient safety

and the quality of patient care. She cites the HCWPA’s legislative

declaration, which provides, in part, that “[p]atient safety is of

paramount importance in the delivery of health care to Colorado

citizens”; “[a] patient is at [their] safest when a health care worker

has the right to speak out on the patient’s behalf without fear of

11 reprisal or retaliation”; and “[h]ealth care providers recognize that,

in order to deliver the highest quality health care, it is imperative

that all health care workers have the right to report patient safety

concerns and to advocate for a patient’s well being without the risk

of disciplinary action or loss of employment.” Sec. 1(a), 2007 Colo.

Sess. Laws at 283.

¶ 24 But unlike CADA — which was enacted to “address

constitutionally based concerns of equality” and “fulfill the ‘basic

responsibility of government to redress discriminatory employment

practices,’” Elder, ¶¶ 23-24 (quoting Conners, 993 P.2d at 1174) —

the HCWPA doesn’t implicate broad constitutional concerns or basic

responsibilities of government. Although the HCWPA addresses

important state policies, so, too, do other statutes that fall within

the CGIA’s purview. For instance, the Whistleblower Act addresses

the General Assembly’s stated concerns that “the people of Colorado

are entitled to information about the workings of state government

in order to reduce the waste and mismanagement of public funds,

to reduce abuses in government authority, and to prevent illegal

and unethical practices” and “employees of the state of Colorado are

citizens first and have a right and a responsibility to behave as good

12 citizens in our common efforts to provide sound management of

governmental affairs.” § 24-50.5-101(1).

¶ 25 Third, Dr. Bakes argues that, like the remedies available

under CADA, any remedies available under the HCWPA would be

“‘merely incidental’ to th[e] [statute’s] greater purposes.” Elder, ¶ 24

(quoting Brooke, 906 P.2d at 71). So, while Dr. Bakes seeks to

recover damages for lost wages, loss of earning potential, pain and

suffering, emotional distress, and other harms she allegedly

suffered as a result of the alleged HCWPA violation, she contends

that any such recovery wouldn’t undermine the primary legislative

purposes of promoting patient safety and the quality of patient care.

¶ 26 But it’s not clear that a health care worker’s recovery of

damages under the HCWPA would be merely incidental to concerns

relating to patient safety and quality patient care. As part of its

reasoning in Elder, the supreme court noted that damages under

CADA are capped based on the size of the employer and the

egregiousness of the conduct, rather than based on the claimant’s

injury, and that the prevailing plaintiff attorney fee provision in

CADA effectively allows claimants to act as private attorneys general

vindicating the rights secured by the statute. Elder, ¶¶ 25-26; see

13 also § 24-34-405(3)(d), (5), C.R.S. 2024. There are no comparable

provisions in the HCWPA; nor are there any other provisions that

might suggest that any recovery by an individual worker would

merely be incidental to the statute’s broader policy goals.

¶ 27 Accordingly, we conclude 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. See § 24-10-109(1); Lloyd,

752 P.2d at 565.

III. Disposition

¶ 28 The appeal is dismissed in part, and the order is affirmed.

JUDGE TOW and JUDGE KUHN concur.