St. Luke’s documents series: Why we did it

Audrey Dutton
Audrey Dutton

A lawyer approached me in the courtroom, looking a bit crabby. “This AEO stuff is (expletive).”

As I packed up my laptop and left the courtroom to sit in the hallway for the umpteenth time, I agreed: This AEO stuff was indeed (expletive).

AEO stands for “attorneys’ eyes only.” That’s the legal designation that shielded days’ worth of witness testimony and hundreds of court documents that were elemental to a federal lawsuit over St. Luke’s Health System’s acquisition of what was then Idaho’s largest multispecialty practice, Saltzer Medical Group.

The Idaho Statesman and other media organizations ended up suing for the AEO materials. It took a year to get the documents, and by then, the trial was history. When the judge issued his ruling in the case, we still couldn’t see pieces of evidence he relied on for his decision.

Being ushered out of the courtroom or blocked from watching deposition videos also made it tough to report on a trial of national import. When a lawyer quizzed a witness about an email that had been sealed, the two reporters in the courtroom — Carissa Wolf, who was covering the trial for legal news service MLex, and myself — couldn’t figure out what the testimony meant.

News is often called a “first draft of history.” Our first draft was about to be full of holes.

I was sure from context that much of the “trade secret” information being shielded as AEO did not really qualify to be sealed.

Those suspicions were confirmed when more than 700 documents were released to us — and to the public — in two phases in the past year. I spent late nights on my couch sifting through emails, reports and charts, some handwritten, and tagging them with web-based software to make sense of it all. One of the tags I created was, “Why AEO?”

And in the bunch of “Why AEO?” records was a document called a Medicare Cost Report. A lawyer for Treasure Valley Hospital in Boise had marked the hospital’s Medicare Cost Report as AEO — containing trade secrets — even though those reports are public under federal law. I sent an email to the Freedom of Information Act folks at the Centers for Medicare and Medicaid Services, and in short order received an email back with an identical copy of the Medicare Cost Report.

We had to sue for that?

About six months ago, I interviewed Treasure Valley Hospital lawyer Ray Powers, who had filed a sworn affidavit saying that report — among many other documents — contained trade secrets.

“The best answer I’ve got for you is: I think, at the time, we were producing ... thousands of documents,” he told me. “I think our feeling was there was enough of what we felt was confidential information about the financial obligations and financial status of Treasure Valley Hospital ... without much thought being given to the fact that it was something that could be obtained through a public records request.”

He concluded: “If you’ve got a client who’s very concerned about releasing financial information, and you’ve got the opportunity to claim it AEO, you try not to overswing on that and overdo the AEO, but I think we were very cautious at the outset.”

I don’t mean to pick on Powers, because many lawyers in the case did the same thing: improperly sealing documents. To be fair, it must have been an overwhelming task to sift through a mountain of information in a relatively short time.

And a couple of documents released after we sued really should have remained under seal, including emails between a patient and St. Luke’s — talking about her medical treatment — that otherwise would have been protected by federal patient-privacy laws.

But in the end, the documents held nuggets of treasure that helped us tell stories we never could have otherwise.

We learned how hospital leaders keep their competitors in mind when they make decisions. We learned how hospitals and insurance companies negotiate, and how those negotiations are colored by power, size and financial clout. We learned how health systems pay attention to doctors’ referrals. We learned how Idaho businesses are reacting to the changing landscape of health care.

Today’s two stories — the last in our series — reveal what happened inside Saltzer and St. Luke’s during the acquisition, plus a handful of interesting tidbits about the inner workings of hospitals.

Journalists believe the public’s business should be conducted in public. That allows society to hold institutions accountable — be it the health care industry or the civil justice system. That is why we sued.

We also believe in telling stories that help us navigate our world. That’s why we spent time, energy and ink on stories about documents related to a trial that happened two years ago. They help us to better understand our health care industry.


Audrey Dutton: 208-377-6448, @IDS_Audrey