The critics allege in the complaint that Suthers was wrong to rule that the sale should not be reviewed under the state's Hospital Transfer Act. No matter how the foundation and HCA describe the deal, it involved a change in control over not-for-profit hospital assets that falls under the act, according to the complaint.
They also maintain that Suthers improperly allowed the Colorado Health Foundation “to materially change its mission and specific charitable purpose notwithstanding that the foundation had failed to demonstrate any exigency justifying such a change,” according to the complaint. The foundation's stated desire to diversify its investment portfolio by cashing out its interest in HealthOne is not a sufficient reason to change its mission, which includes oversight of healthcare facilities that are part of the joint venture, according to the complaint. In approving the sale, and therefore changing the mission of the foundation, Suthers abused his discretion in his duty to oversee charitable trusts, according to the complaint.
The complaint, filed in Denver County Court, also alleges that the foundation wanted to avoid review of the deal under the transfer act because the act stipulates that board members who approve a sale of hospital assets reviewed under the act may not remain in charge of the successor foundation that results from the sale.
The plaintiffs asked the court to order Suthers to withdraw his approval and re-examine the sale under the Hospital Transfer Act and with closer attention to the effect the sale would have on the foundation's mission.
Suthers hasn't been served yet with the lawsuit, but Suthers and his team are confident that their rulings on the sale will withstand court review, said Mike Saccone, a spokesman for Suthers. The attorney general's office will respond to the specific points in the lawsuit when the office makes its response in court, Saccone said.
The foundation does not comment on pending litigation, according to a foundation spokeswoman. HealthOne officials had not been aware of the lawsuit and have not reviewed it, according to a HealthOne spokeswoman.