Ga. Doctor's Suit Claims Hospital Is Dodging Open Records Act

A Thomasville, Ga., hospital may be sidestepping the requirements of Georgia’s Open Records Act to avoid public scrutiny of its spending, according to a suit that seeks access to financial statements.

Wesley W. Simms, a Thomasville pathologist, sued John D. Archbold Memorial Hospital, the Hospital Authority for the city of Thomasville and a former chief financial officer of the hospital and authority to force them to comply with his Open Records Act requests. Simms is seeking detailed information on the hospital’s finances.Since some of the documents concern hospital authority bond sales that generated about $49 million, they should be public record, said Simms’ attorney, Chilivis, Cochran, Larkins & Bever partner Anthony L. Cochran.”Can a nonprofit, tax-exempt hospital use a public hospital authority to raise $49 million in tax-exempt bonds for the express purpose of benefiting the hospital and keep the use of those funds free from any public oversight?” Cochran said.Proceeds from the Hospital Authority’s bond sales have been spent on things like improvements to the hospital building and equipment for an oncology center and an ambulatory-care center, according to documents provided by Cochran.The Thomasville hospital litigation comes at a time when the Georgia Legislature is likely to consider legislation next month to rewrite the Open Records Act and Open Meetings Act. State Rep. Jill Chambers, a Republican from north DeKalb County, has said she wants to make the laws easier to understand, to increase penalties for violations and to eliminate redundant exemptions to the two laws that are scattered throughout the Georgia Code.Hospital authorities are not included in the more than 200 exemptions to the Open Meetings Act and Open Records Act. The Legislature approved a change in 1999 that stipulates that hospital authorities must comply with the two open-government laws, O.C.G.A. �50-18-72(c)(1). That language was added as a result of litigation involving Phoebe Putney Memorial Hospital Albany and Promina Health System, said Hollie Manheimer, executive director of the Georgia First Amendment Foundation.But the lead attorney for the Hospital Authority for the city of Thomasville and Archbold Memorial Hospital — King & Spalding partner Richard L. Shackelford — said the laws don’t apply to the hospital.In court filings, Shackelford said he agrees that the hospital authority is subject to the Open Records Act, according to an Oct. 29 court filing. But Shackelford claims Archbold Memorial Hospital is exempt. It’s Archbold Memorial Hospital that possesses the records Cochran seeks, not the Hospital Authority. And Archbold Memorial Hospital is not required to respond to Cochran’s request for documents, Shackelford said in court briefs.”[The hospital] is not subject to the Open Records Act based on applicable statutes and the law, which we’ll address in court,” Shackelford told the Daily Report. Shackelford is representing both the hospital and the authority. “Both of my clients’ view is that they complied with all obligations under the law with respect to the Open Records Act and with respect to any bond financing,” Shackelford said.Since the authority ostensibly sold bonds to fund improvements at the hospital, the public has a right to confirm how the bond money was actually spent, said Bill Bozarth, executive director of Common Cause Georgia. Bozarth said he hoped Chambers’ efforts to rewrite the law in the 2008 General Assembly will address this point.”It’s especially concerning because [the hospital] seems to not want to show how significant amounts of money were spent,” Bozarth said. “That suggests they have something to hide.”Cochran argues that the salient legal question is not whether the hospital is subject to the Open Records Act and Open Meetings Act. Rather, it’s whether the documents themselves are subject to public access.Cochran said he should know first-hand why this is the law — he once took the opposing side of that argument and lost. Cochran represented former University of Georgia football and basketball coaches Vince Dooley and Hugh Durham, who both argued that they should not be forced to make available documents in their possession that outlined income that they received from shoe contracts, endorsements and other off-campus activities related to their coaching duties. But the Supreme Court of Georgia determined that while Dooley and Durham themselves were not subject to the Open Records Act, the documents related to activities conducted “in the course of the operation of a public office or agency” are subject to the Open Records Act. Dooley v. Davidson, Nos. S90A0821, S90X0822 (Sup. Ct. of Ga., Nov. 29, 1990).HOSPITAL, AUTHORITY ORA REQUESTS Cochran filed his first Open Records Act request with the Hospital Authority on Aug. 6, according to court documents. The authority provided access to some documents, but not everything that Cochran sought. Cochran then filed another Open Records Act request Aug. 27, this time on behalf of Simms, with Archbold Memorial Hospital and its chief financial officer, J. William Sellers Jr. When the hospital and Sellers responded that they were exempt from the law, Cochran prepared a suit, which was filed Sept. 19, naming the Hospital Authority as the defendant.A third Open Records Act request sent to the hospital and Sellers, filed Oct. 12, also resulted in a refusal. So Cochran filed a second suit, on Nov. 13, naming Archbold Memorial Hospital and Sellers as defendants.On the same day Cochran filed the second suit, Nov. 13, Archbold Memorial Hospital suspended Sellers for undisclosed reasons, Cochran said. Although Sellers is suspended, Cochran is scheduled to depose Sellers on Jan. 3 in the Atlanta office of Sellers’ attorney, Miller & Martin partner Daniel P. Griffin.Cochran said he wants to depose Sellers because he has been told by other hospital executives that Sellers was the custodian of the hospital authority’s public records and is the only person who knows where certain records are kept and how they have been stored.The legal structure of Grady Memorial Hospital in Atlanta may serve as an example that could work in favor of Cochran’s client. Grady is owned and operated by the Fulton-DeKalb Hospital Authority, a legal entity that was created by the Legislature in 1941. Because the Fulton-DeKalb Hospital Authority is a public body, Grady is subject to the Open Records Act and Open Meetings Act, said McKenna Long & Aldridge health care litigation partner James C. Rawls, who does not represent Grady.Many public hospitals in Georgia — but not Grady — have restructured so that a private, nonprofit corporation is created and given control of the hospital. Some of the private, nonprofit organizations that have resulted from these hospital privatizations have argued that they are not subject to either the Open Records Act or Open Meetings Act, Rawls said.But Archbold Memorial Hospital in Thomasville has not implemented this type of restructuring, Cochran said. Therefore, Cochran said he believes Archbold Memorial Hospital and the Hospital Authority of the City of Thomasville both remain subject to the Open Records Act.In addition to King & Spalding’s Shackelford, other lawyers representing the Thomasville hospital and authority are Coleman Talley partners Wade H. Coleman and Gregory T. Talley of Valdosta, Ga.; Alexander & Vann attorneys George R. Lilly II and William C. Sanders of Thomasville; and the hospital’s in-house counsel, David Robbins.The cases are Simms v. Hospital Authority for the City of Thomasville, No. 07-CV-1097 (Thomas Co. Superior Court, filed Sept. 19, 2007), and Simms v. Archbold Memorial Hospital and Sellers, No. 07-1346 (Thomas Co. Superior Court, filed Nov. 13, 2007).