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1 The Honorable Ken Schubert

Hearing: October 24, 2019, 1:00 p.m.


2 With Oral Argument
3

7
SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY
8
SEATTLE CHILDREN’S HOSPITAL,
9 a Washington nonprofit corporation,
No. 19-2-26296-6 SEA
10 Plaintiff,
11 MOTION FOR PRELIMINARY
v. INJUNCTION
12
KING COUNTY, a Washington municipal
13 corporation; and KING BROADCASTING
COMPANY and its affiliates, d/b/a KING 5, a
14 Washington corporation,
15
Defendants.
16

17 I. RELIEF REQUESTED
18 Seattle Children’s Hospital (“Children’s”) seeks a preliminary injunction from this Court
19 to enjoin confidential and sensitive information that is protected from disclosure under state and
20 federal law from being released by King County, through its Department of Public Health –
21 Seattle & King County (“Public Health”), in response to requests for records made pursuant to
22 Washington’s Public Records Act, ch. 42.56 RCW (“PRA”). The records include protected
23 health information of minor patients of Children’s and quality improvement program and related
24 information and documents that are exempt from public disclosure under RCW 42.56.360(1)(c)
25 and related statutes. This information is exempt from disclosure under the PRA, and its release
26 would substantially and irreparably damage Children’s and its patients and is clearly not in the

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1 public interest. Injunctive relief is the only way to protect the confidentiality of this information

2 and prevent actual, substantial, and irreparable harm to Children’s and its patients.

3 II. STATEMENT OF FACTS

4 A. Background.

5 In the summer of 2018 and in May 2019, Children’s determined that some of its patients

6 had developed Aspergillus surgical site infections after having surgery at Children’s main

7 campus. Decl. of Dr. Danielle Zerr ¶7. In response, Children’s immediately initiated an

8 investigation through its Coordinated Quality Improvement Program and worked with outside

9 experts to take appropriate corrective measures. Id. In May 2019, Children’s elected to close its

10 operating rooms when it determined that deficiencies in its air handler were likely contributing to

11 air quality issues. Id. Closing the operating rooms allowed Children’s to physically access the

12 air handling system in order to thoroughly investigate the cause and implement several

13 improvements and corrective actions. Id. As part of Children’s incident response, multiple of its

14 Quality Improvement Committees initiated investigations. Id. This quality improvement work is

15 still ongoing as Children’s performs an institution-wide root cause analysis and related work. Id.

16 ¶¶7 & 12.

17 State law requires every hospital to “maintain a coordinated quality improvement

18 program for the improvement of the quality of health care services rendered to patients and the

19 identification and prevention of medical malpractice.” RCW 70.41.200(1); see RCW 4.24.250;

20 WAC 246-320-171. Consistent with these requirements, Children’s operates a Coordinated

21 Quality Improvement Program (“CQIP”), which is governed by Children’s Board of Trustees

22 and is comprised of numerous committees, such as the Quality Improvement Steering

23 Committee, and subcommittees, including Infection Prevention. Decl. of Jaleh Shafii ¶3 &

24 Exs. A–C. Pursuant to state law, Children’s policies governing its CQIP provide confidentiality

25 for all information and documents created for the CQIP. Id. Exs. B at 15, C at 2, D at 1–3.

26

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1 Both state law and Children’s policies recognize that consulting with outside entities is

2 often part of a CQIP process. See RCW 42.56.360(1)(c) (protecting information and documents

3 “regardless of which agency is in possession”); Shafii Decl. Ex. D at 1–2 (stating that Children’s

4 may agree “to share quality improvement information and/or documents with one or more

5 appropriate quality committees of other health care entities” or “engage one or more external

6 third parties to support such quality activities”); RCW 4.24.250(2) (maintaining confidentiality

7 of information shared); RCW 70.41.200(8) (same). Children’s regularly consults with experts

8 from Public Health in the interest of bringing in the full resources and expertise of Public Health

9 and other agencies such as the Centers for Disease Control & Prevention (“CDC”) to assist with

10 challenging or novel clinical situations. Zerr Decl. ¶6. Children’s initiates these consultations

11 through its CQIP to improve the care it provides and protect the health of its patients. Id.

12 In this matter, Children’s consulted with infection prevention experts from Public Health

13 after Aspergillus was detected at Children’s. Children’s reached out to Public Health to report

14 the detection of a cluster of Aspergillus surgical site infections and to ask for assistance in

15 evaluating the situation and validating Children’s corrective actions were appropriate and

16 comprehensive. Dr. Danielle Zerr is a practicing physician at Children’s and board-certified in

17 pediatric infectious disease. Zerr Decl. ¶2. She is a voting member of Children’s Quality

18 Improvement Steering Committee, the Infection Prevention Executive Oversight Committee, and

19 the Infection Prevention Leadership Committee, which are all part of Children’s CQIP. Id. ¶3.

20 Dr. Zerr corresponded with both Public Health and the CDC in her role as a member of these

21 CQIP committees. Id. ¶8.

22 B. Records Requests.

23 Public Health received PRA requests seeking records relating to the Aspergillus issue,

24 and Public Health subsequently provided written notice of these requests to Children’s. Decl. of

25 Adrian Winder ¶2 & Exs. A–B. Public Health informed Children’s that it would be releasing

26 certain records related to Children’s (the “Records”), which include email communications of

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1 Dr. Zerr with Public Health and the CDC in her role as a CQIP committee member. Zerr Decl.

2 ¶8; Winder Decl. ¶2. Public Health will disclose the Records in unredacted form unless

3 Children’s reaches an agreement with the requester on the redactions or obtains an order from

4 the court enjoining release. Winder Decl. ¶2. Public Health advised, through counsel, that it

5 believes Children’s is in the best position to demonstrate the information at issue satisfies the

6 criteria of the exemptions Children’s claims (e.g., that it is quality improvement information of

7 Children’s). Id.

8 Children’s contacted the requesters to attempt to reach agreement on redaction of the

9 records without resort to filing a lawsuit, and provided a copy of the Records with Children’s

10 proposed redactions. Winder Decl. ¶4. While Children’s reached agreement with certain

11 requesters, Children’s and Defendant KING 5 have not reached a resolution as of this filing. The

12 parties agreed to proceed directly to this motion for preliminary injunction rather than require a

13 temporary restraining order. Id.

14 III. STATEMENT OF ISSUES

15 Does Children’s demonstrate (1) a legal and/or equitable right to prevent disclosure of the

16 specified information in the Records as exempt from disclosure under the PRA; (2) a well-

17 grounded fear of immediate invasion of its rights; and (3) that Children’s will suffer actual and

18 substantial injury absent the issuance of a preliminary injunction?

19 IV. EVIDENCE RELIED UPON

20 This motion relies upon the Declarations of Dr. Danielle Zerr, Jaleh Shafii, and Adrian

21 Winder with accompanying exhibits, and all of the records and pleadings on file with the Court.

22 V. AUTHORITY

23 CR 65 authorizes the court to enter a preliminary injunction. The moving party must

24 demonstrate (1) a clear legal or equitable right; (2) a well-grounded fear of immediate invasion

25 of that right; and (3) the acts complained of are either resulting in or will result in actual and

26 substantial injury. Rabon v. City of Seattle, 135 Wn.2d 278, 284, 957 P.2d 621 (1998). These

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1 three criteria are “examined in light of equity, including the balancing of the relative interests of

2 the parties and the interests of the public, if appropriate.” Id.; Tyler Pipe Indus., Inc. v. Dept. of

3 Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982).

4 In addition, to obtain a permanent injunction under the PRA, the court must determine

5 (1) that an exemption applies and (2) that disclosure would “clearly not be in the public interest

6 and would substantially and irreparably damage any person, or would substantially and

7 irreparably damage vital governmental functions.” RCW 42.56.540; Lyft, Inc. v. City of Seattle,

8 190 Wn.2d 769, 790, 418 P.3d 102 (2018).

9 A. Children’s Has A Clear Legal And/Or Equitable Right To Prevent Disclosure


Because The Information Is Exempt From Disclosure Under The PRA.
10
In determining whether a party has a clear legal or equitable right, “the court examines
11
the likelihood that the moving party will prevail on the merits.” Rabon, 135 Wn.2d at 285.
12
Children’s is likely to prevail on the merits because the specified information in the Records is
13
exempt from disclosure, specifically, under RCW 42.56.360(1)(c), Chapter 70.02 RCW (Health
14
Care Information Act), and HIPAA, Pub. L. 104–191, 45 C.F.R. Parts 160, 164.
15
1. Information In The Records Is Exempt Under RCW 42.56.360(1)(c).
16
RCW 42.56.360(1)(c) exempts the following from disclosure under the PRA:
17
Information and documents created specifically for, and collected and maintained
18 by a quality improvement committee under RCW 43.70.510, 70.230.080, or
19 70.41.200, or by a peer review committee under RCW 4.24.250, or by a quality
assurance committee pursuant to RCW 74.42.640 or 18.20.390, or by a hospital,
20 as defined in RCW 43.70.056, for reporting of health care-associated infections
under RCW 43.70.056, a notification of an incident under RCW 70.56.040(5),
21 and reports regarding adverse events under RCW 70.56.020(2)(b), regardless of
which agency is in possession of the information and documents[.]
22
Information in the Records is exempt under at least two of the above cross-referenced
23
statutes: the provision for protecting information and documents of a quality improvement
24
committee under RCW 70.41.200, and the provision protecting reporting of health care-
25
associated infections under RCW 43.70.056.
26

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1 (a) Quality Improvement Program Information And Documents

2 RCW 70.41.200, one of the statutes incorporated into RCW 42.56.360, requires hospitals
3 to “maintain a coordinated quality improvement program for the improvement of the quality of
4 health care services rendered to patients and the identification and prevention of medical
5 malpractice.” Among other requirements, the quality improvement committee must “oversee
6 and coordinate the quality improvement and medical malpractice prevention program” to “ensure
7 that information gathered pursuant to the program is used to review and to revise hospital
8 policies and procedures.” RCW 70.41.200(1); see also RCW 70.41.200(1)(e) (regarding
9 “maintenance and continuous collection of information concerning the hospital's experience with
10 negative health care outcomes and incidents injurious to patients including health care-associated
11 infections…”).
12 To protect this critical process, the legislature has exempted quality improvement
13 committee information and records not only from public disclosure under the PRA
14 (RCW 42.56.360(1)(c)), but also from discovery in a civil action, RCW 70.41.200(3)
15 (information and documents of a quality improvement committee “are not subject to ... discovery
16 or introduction into evidence in any civil action”).
17 The Washington Supreme Court has recognized the compelling public policy underlying
18 this PRA exemption, stating, “Hospital internal review mechanisms are critical to maintaining
19 quality health care.” Cornu-Labat v. Hosp. Dist. No. 2 Grant Cty., 177 Wn.2d 221, 230, 298
20 P.3d 741 (2013); see also Coburn v. Seda, 101 Wn.2d 270, 275, 677 P.2d 173 (1984)
21 (“‘Confidentiality is essential to effective functioning of these staff meetings; and these meetings
22 are essential to the continued improvement in the care and treatment of patients. Candid and
23 conscientious evaluation of clinical practices is a sine qua non of adequate hospital care.’”)
24 (quoting Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250 (D.D.C.1970)). “‘[E]xternal access
25 to committee investigations stifles candor and inhibits constructive criticism thought necessary to
26

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1 effective quality review.’” Cornu-Labat, 177 Wn.2d at 230 (quoting Anderson v. Breda, 103

2 Wn.2d 901, 905, 700 P.2d 737 (1985)).

3 The communications at issue—between Dr. Zerr, Public Health, and the CDC—were part

4 of Children’s CQIP process. Dr. Zerr was acting in her role as a member of the Children’s CQIP

5 committees in her communications with Public Health and the CDC, and these agencies assisted

6 Children’s in its investigative process. Zerr Decl. ¶8. Dr. Zerr marked her communications as

7 confidential CQIP information at the time they were sent. Id. Protecting the information

8 exchanged during the quality improvement process serves clear policy interests, as expressed in

9 Cornu-Labat, and is vital to protecting Children’s institutional ability to continually improve

10 patient care with the assistance of regional and national experts like Public Health and the CDC.

11 Id. ¶5; Shafii Decl. ¶5.

12 The fact that this information was shared with Public Health does not waive this

13 protection, as state law permits sharing CQIP information with other coordinated quality

14 improvement programs like Public Health. RCW 70.41.200(8); see also RCW 4.24.250(2)

15 (permitting disclosure of quality improvement information and documents “with one or more

16 coordinated quality improvement programs or committees.”); Zerr Decl. ¶5 (Public Health has

17 CQIP approved by Department of Health). The legislature has expressly provided that the

18 confidentiality provisions of this statutory scheme continue to apply even if the CQIP committee

19 communicates with other CQIPs. RCW 42.56.360(1)(c) (protecting information and documents

20 “regardless of which agency is in possession”); RCW 70.41.200(8) (“any information and

21 documents created or maintained as a result of the sharing of information and documents shall

22 not be subject to the discovery process and confidentiality shall be respected as required by

23 subsection (3) of this section, RCW 18.20.390 (6) and (8), 74.42.640 (7) and (9), and 4.24.250”);

24 RCW 4.24.250(2) (protecting “information and documents created or maintained as a result of

25 the sharing of information and documents”); Shafii Decl. Ex. D at 1–2.

26

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1 (b) Reporting Health Care-Associated Infections

2 RCW 42.56.360(1)(c) also exempts from public disclosure information and documents
3 collected and maintained by hospitals for reporting of “health care-associated infections” under
4 RCW 43.70.056. See also RCW 43.70.056(2)(e)(ii) (exempting hospital reporting information
5 from public disclosure or civil discovery). “Health care-associated infection” is defined as “a
6 localized or systemic condition that results from adverse reaction to the presence of an infectious
7 agent or its toxins and that was not present or incubating at the time of admission to the
8 hospital.” RCW 43.70.056(1)(a).
9 The Aspergillus surgical site infections were “health care-associated infections” pursuant
10 to this statute. Zerr Decl. ¶8. Dr. Zerr reported the Aspergillus infections to Public Health under
11 WAC 246-101-305, requiring health care facilities to report certain conditions to the local health
12 department, including “health care-associated infection suspected due to contaminated products
13 or devices, or environmentally related disease.” WAC 246-101-305(1)(a)(iv)1; Zerr Decl. ¶¶6, 8;
14 see also RCW 43.70.056 (requiring reporting of health care associated infections). RCW
15 42.56.360(1)(c) and RCW 43.70.056(2)(e)(ii) expressly exempt information concerning
16 reporting of health care-associated infections from public disclosure.
17 2. Patient Health Care Information In The Records Is Also Exempt Under
HIPAA and the HCIA.
18
The Records also contain information protected by state and federal statutes and
19
regulations protecting patient health care information: the Health Care Information Act
20
(“HCIA”), Chapter 70.02 RCW, and the Health Insurance Portability and Accountability Act of
21
1996 (“HIPAA”), Pub. L. 104–191. Each of these provisions operates as an “other statute which
22
exempts or prohibits disclosure” under the PRA. RCW 42.56.070(1); see also
23
RCW 42.56.360(2) (cross-referencing Chapter 70.02 RCW).
24

25
1
WAC 246-101-305 was promulgated under RCW 43.20.050, which provides that the state health department may
26 delegate authority to local boards of health to enforce its rules.

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1 RCW 70.02.020(1) prohibits health care providers from disclosing “health care

2 information” without the patient’s written authorization. “Health care information” is defined as:

3 [A]ny information, whether oral or recorded in any form or medium, that


identifies or can readily be associated with the identity of a patient and directly
4 relates to the patient’s health care . . . .
5 RCW 70.02.010(17).
6 HIPAA and the regulations the Department of Health and Human Services has
7 promulgated pursuant to HIPAA likewise safeguard patient information. See 42 U.S.C. § 1320d-
8 2(d) (directing secretary of DHHS to adopt security standards protecting health information).
9 HIPAA prohibits the disclosure of protected health information (“PHI”). 45 C.F.R. § 164.502
10 (“A covered entity or business associate may not use or disclose protected health information,
11 except as permitted or required by this subpart or by subpart C of part 160 of this subchapter.”).
12 “Protected health information” is defined as “individually identifiable health information” which
13 is transmitted or maintained in electronic media or any other form or medium. Id. § 160.103.
14 “Health information” means:
15 any information . . . that: (1) Is created or received by a health care provider . . .;
16 and (2) Relates to the past, present, or future physical or mental health or
condition of an individual; the provision of health care to an individual; or the
17 past, present, or future payment for the provision of health care to an individual.

18 Id. “Individually identifiable health information” is defined as:


19 [I]nformation that is a subset of health information, including demographic
information collected from an individual, and:
20
(1) Is created or received by a health care provider . . .; and
21
(2) Relates to the past, present, or future physical or mental health or condition of
22
an individual; the provision of health care to an individual; or the past, present, or
23 future payment for the provision of health care to an individual; and

24 (i) That identifies the individual; or

25 (ii) With respect to which there is a reasonable basis to believe the


information can be used to identify the individual.
26

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1 Id.

2 The HIPAA Privacy Rule provides specific guidance on how records are de-identified.

3 45 C.F.R. § 164.514(b). The regulation includes a list of the type of information that must be

4 removed, including but not limited to names, “[a]ll elements of date (except year) for dates

5 directly related to an individual” and “[a]ny other unique identifying number, characteristic, or

6 code.” 45 C.F.R. § 164.514(b)(2)(i). Federal guidance further provides that information about

7 “rare clinical events” should be removed because it may “facilitate identification in a clear and

8 direct manner.”2

9 The Records contain information that is protected “health care information” under the

10 HCIA and “protected health information” under HIPAA.3 The Records include, for example, the

11 dates of various clinical procedures, which must be redacted under 45 C.F.R. § 164.514(b)(2)(i).

12 In addition, due to the very small number of affected patients and the unique clinical nature of

13 their procedures and diagnoses, Children’s has a reasonable basis to believe additional

14 information concerning those procedures and diagnoses contained in the Records could be used

15 to identify these patients. Zerr Decl. ¶9; 45 C.F.R. § 160.103; 45 C.F.R. § 164.514(b)(2)(i);

16 Guidance Regarding Methods for De-identification, supra, footnote 2.

17 B. Children’s Has A Well-Grounded Fear Of Immediate Invasion Of Its Rights And


Will Be Substantially Harmed If The Records Are Disclosed.
18
Public Health has stated that absent an imminent order enjoining release, it will disclose
19
the unreadacted Records to public records requesters. Winder Decl. ¶2. In the absence of an
20
injunction, the damage will be immediate and irreparable. Disclosure of private health
21

22 2
Department of Health and Human Services, Guidance Regarding Methods for De-identification of Protected
Health Information in Accordance with the Health Insurance Portability and Accountability Act (HIPAA) Privacy
23
Rule at 27 (November 26, 2012), available at https://www.hhs.gov/sites/default/ files/ocr/privacy/hipaa/
understanding/coveredentities/De-identification/hhs_deid_guidance.pdf.
24 3
Both the HCIA and HIPAA permit protected information to be shared with public health agencies.
RCW 70.02.050 (permitting disclosures for quality assurance purposes and to health authorities as needed to protect
25
public health); 45 C.F.R. § 164.512(b)(1)(i) (permitting disclosure to “public health authority . . . for the purpose of
preventing or controlling disease, injury, or disability”); WAC 246-101-320 (patient identifying information
26 provided to local health department as part of notifiable condition reporting is confidential).

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1 information would invade the rights of Children’s patients and their families and cause harm:

2 “[h]ealth care information is personal and sensitive information that if improperly used or

3 released may do significant harm.” RCW 70.02.005(1).

4 Six patients developed Aspergillus surgical site infections after undergoing surgery in

5 Children’s operating rooms, and tragically one patient died as a result of the infection. Zerr

6 Decl. ¶9. Due to the small number of affected patients and the unique clinical nature of their

7 procedures and diagnoses, Children’s has a reasonable basis to believe the information contained

8 in the Records could be used to identify these patients. Id. Impacted families have asked that

9 Children’s be particularly sensitive to protecting the identities of their children to protect their

10 privacy and prevent unwanted attention from media or attorneys. Id. Protecting the privacy of

11 its patients and their families is of paramount importance to Children’s. Id. Children’s strongly

12 objects to the release of patient health care information as constituting a violation of its patients’

13 right to privacy under HIPAA, the HCIA, and other applicable state and federal laws and

14 regulations. Id.

15 Disclosure of Children’s confidential CQIP committee information would harm

16 Children’s operations and quality of care. It is a fundamental obligation of Children’s to

17 continually improve the quality of care it provides to its patients. Shafii Decl. ¶¶4–5; see

18 RCW 70.41.200. Children’s CQIP was designed to facilitate the systematic, data-driven

19 activities and self-critical analyses that are essential to effect these improvements. Shafii Decl.

20 ¶5. Maintaining the confidentiality of its quality improvement activities and information is vital

21 the strength and efficacy of Children’s quality improvement efforts. Id.; Zerr Decl. ¶¶5, 10.

22 If the confidentiality of quality improvement information is not maintained as provided

23 for by law, it would seriously undermine the integrity and function of Children’s CQIP as well as

24 the ability of Dr. Zerr and others at Children’s perform their roles in investigating, resolving, and

25 reporting issues that arise during the course of patient care. Id. Children’s staff, nurses, and

26 physicians will undoubtedly be disinclined to participate in quality improvement activities for

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1 fear of the professional, personal, or legal repercussions. Shafii Decl. ¶5. Without the willing

2 engagement of its care providers, Children’s CQIP will no longer be able to critically evaluate

3 and learn from the experiences of its patients and providers and will thus fail to deliver on its

4 promise to improve the delivery of patient care. Id. Moreover, public disclosure of quality

5 improvement and reporting information discourages Children’s and other health care providers

6 from consulting with local and national experts like Public Health and the CDC, or at minimum

7 would constrain them from freely sharing information with such agencies, having a detrimental

8 impact on Children’s CQIP designed to protect and promote patient safety. Id. This frustrates

9 the public policy expressed by the legislature to encourage and protect such activities and would

10 irreparably damage a vital governmental function.

11 C. Balancing The Equities Further Justifies Issuance Of A Preliminary Injunction.

12 Balancing the equities here heavily favors issuing injunctive relief. As discussed above,

13 identifiable information of Children’s patients and confidential quality improvement and

14 reporting information will be released to the public absent an injunction. Once disclosed, the

15 information cannot be undisclosed. This outweighs any alleged injury that could result from a

16 delay in release. Children’s operating room closure occurred five months ago and was already

17 reported by media (and Children’s) during the summer of 2019.

18 D. Disclosure Is Clearly Not In The Public Interest And Would Substantially And
Irreparably Damage Children’s And Its Patients.
19
The public has no legitimate interest in the private healthcare details or identities of
20
individual patients. Planned Parenthood of Great Nw. v. Bloedow, 187 Wn. App. 606, 628, 350
21
P.3d 660 (2015) (public interest “does not extend to information that identifies patients or health
22
care providers” and “public has no legitimate interest in the health care or pregnancy history of
23
any individual woman”). Disclosure of health care information could lead to identification of
24
Children’s patients, which would cause substantial and irreparable harm. See Bainbridge Island
25
Police Guild v. City of Puyallup, 172 Wn.2d 398, 420, 259 P.3d 190 (2011). Given the media
26

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1 attention to the Aspergillus issue, identification of the patients could lead to patient and family

2 identities being reported in the press, and to members of the press and public contacting these

3 families. Families caring for children with serious illnesses should not face the added burden of

4 being contacted by the press and public regarding highly personal health issues. See Zerr Decl.

5 ¶ 9. In addition, violation of HIPAA exposes covered entities to potential civil monetary

6 penalties and investigation. 45 C.F.R. §§ 160.402, 160.306 & 160.312.

7 Likewise, disclosing the quality improvement and reporting correspondence is not in the

8 public interest and would substantially and irreparably harm Children’s, as discussed above in

9 Section IV.B and as expressed by the legislature. Washington statutes and regulations are replete

10 with confidentiality protections for this and similar health care information, recognizing the clear

11 public policy interest in promoting and protecting such activities to improve patient care, prevent

12 malpractice, and protect the public health and safety. E.g., RCW 42.56.360(1);

13 RCW 43.70.056(2)(e)(ii); RCW 70.41.200(3), (8); RCW 4.24.250; RCW 74.42.640(7)–(9);

14 RCW 70.56.050; WAC 246-101-230.

15 Indeed, disclosure of this information is protected even from civil discovery in order to

16 encourage candid discussions and promote patient safety. Disclosure would have a chilling

17 effect on these discussions, harming both Children’s own CQIP process and the processes of

18 other hospitals sharing information with state and local health departments. Bloedow, 187 Wn.

19 App. at 629 (concluding standard under PRA injunction statute, RCW 42.56.540, satisfied where

20 “[d]isclosure of the records would jeopardize the ability of DOH to obtain information from

21 health care providers about abortions”); see Shafii Decl. ¶5.

22 Finally, while state law recognizes the vital interest in allowing candid conversations as

23 part of the quality improvement process itself, Children’s is committed to conducting a thorough

24 and comprehensive analysis of the incident in order to learn all it can and to transparently sharing

25 the lessons learned from the underlying incident. Zerr Decl. ¶12; Shafii ¶7.

26

MOTION FOR PRELIMINARY INJUNCTION - 13 FOSTER GARVEY PC 


1111 THIRD AVENUE, SUITE 3000
SEATTLE, WASHINGTON 98101-3292
PHONE (206) 447-4400 FAX (206) 447-9700

FG:53532202.1
1 E. Any Bond Required Should Be De Minimis.

2 RCW 7.40.080 grants this Court sole discretion to set the amount of bond for a

3 preliminary injunction. Defendants will not suffer damages if a preliminary injunction is issued.

4 This action does not subject King County to PRA penalties or fee awards. See Confederated

5 Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734, 757, 958 P.2d 260 (1998).

6 Children’s requests that the Court set the bond at a nominal amount of $100, or none at all.

7 VI. CONCLUSION

8 Release of the Records in unredacted form would reveal protected health information of

9 Children’s patients and confidential quality improvement committee and reporting information,

10 causing irreparable and substantial harm to Children’s and its patients. For the reasons described

11 herein, Children’s respectfully requests that the Court grant its Motion for Preliminary

12 Injunction. A proposed order is submitted with this Motion.

13 DATED this 15th day of October, 2019.

14 FOSTER GARVEY PC
15
/s Adrian Urquhart Winder
16 Adrian Urquhart Winder, WSBA No. 38071
Andrea L. Bradford, WSBA No. 45748
17 1111 Third Avenue, Suite 3000
Seattle, Washington 98101-3292
18 T: (206) 447-4400 / F: (206) 447-9700
Email: adrian.winder@foster.com
19
andrea.bradford@foster.com
20
Attorneys for Plaintiff Seattle Children’s
21 Hospital
22 I certify that this memorandum contains 4,199
23 words, in compliance with the Local Civil
Rules.
24

25

26

MOTION FOR PRELIMINARY INJUNCTION - 14 FOSTER GARVEY PC 


1111 THIRD AVENUE, SUITE 3000
SEATTLE, WASHINGTON 98101-3292
PHONE (206) 447-4400 FAX (206) 447-9700

FG:53532202.1