Justices hear case on access to medical-malpractice files

The state Supreme Court heard arguments Thursday about whether an attorney should have been able to use the state’s Freedom of Information Act to obtain documents in a medical-malpractice case involving doctors he claimed were public employees.

Benton attorney Luther Sutter tried to obtain the litigation file of an attorney representing three doctors in a 2007 medical-malpractice case.

He argued that the doctors were public employees and their attorney was paid by an insurance company whose policy had been purchased with public funds. All three doctors work at Arkansas Children’s Hospital, which describes itself as a private nonprofit organization though it receives some public funding. They are employed by the University of Arkansas for Medical Sciences.

An attorney for the doctors told the court in a brief that Sutter was misusing the Freedom of Information Act to obtain confidential information that should be covered by attorney-client privilege to gain the upper hand in the malpractice suit.

Arkansas Children’s Hospital argued that disclosing the records would put it at a significant competitive disadvantage in recruiting doctors, who would be reluctant to work in the state knowing that their records would be open to the public if they were sued.

Sutter and his law firm, Harrill and Sutter, represented the plaintiffs in a 2007 medical-malpractice case against Drs. Hank Farrar, Tonya Thompson and Lanessa Bass.

The doctors were represented in that case by Mariam Hopkins, a private attorney hired by their medical-malpractice-insurance company.

In March 2009, before the case went to trial, Sutter requested the entire legal defense file of Hopkins and her law firm relating to the malpractice case under the Freedom of Information Act.

Sutter filed his suit after Hopkins and the law firm where she works denied that request, saying that the documents were not public records that had to be disclosed.

Skip Henry, the attorney for the doctors, argued in a brief that Sutter “seeks to misuse the FOIA in an effort to obtain confidential and privileged litigation files of opposing counsel and their clients in the ... medical malpractice suit.”

Even if “for the sake of argument” the records Sutter requested were public, they would still fall under exceptions to the Freedom of Information Act because they are medical records and because disclosing them would put Children’s Hospital at a competitive disadvantage, he argued.

A Saline County Circuit Court judge agreed.

Sutter argued that the Freedom of Information Act applied in this case because the doctors are public employees and said that the act requires disclosure of records that might be covered by the attorney-client privilege.

Children’s Hospital “is a county hospital that retained lawyers with public funds. The doctors purchased insurance with public money. Then, the insurance company hired private lawyers to defend public physicians,” he wrote, comparing the situation with a 1990 case in which the Supreme Court ruled that the litigation record created by private attorneys hired by the city of Fayetteville was public because the attorneys were hired in lieu of the city attorney and paid with public funds.

Justice Robert Brown asked if the situations were really the same.

“Here we’re talking about a litigation file of an attorney representing doctors as individually covered by the liability insurance company. Isn’t that different from an attorney representing the city of Fayetteville?”

Sutter said it was not different.

In its most recent annual report, Children’s Hospital said 2 percent of its more than $532 million in available funds came from state and county support, and 8 percent came from Medicaid reimbursement.

Justice Courtney Hudson Goodson recused herself from the case.

At the Supreme Court, the case is 11-894, Harrill & Sutter v. Hank Farrar et al.