Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.
Monthly Archives: June 2014
In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)
Scott Gessler, as Secretary of State v. Colorado Common Cause and Colorado Ethics Watch, 2014CO44 (June 16, 2014)
When the financial burden of state regulation of issue committees approaches or exceeds the value of the financial contributions to a political effort, such regulations may unconstitutionally burden freedom of association. Samson v. Buescher. Colorado’s Constitution art. XXVIII sec. 2(10)(a)(II) and CRS 1-45-108 establish a $200 threshold for registering issue committees and for reporting contributions and expenditures retro- and prospectively (Limits). Samson found the Limits to be unconstitutional as applied to a small-scale issue committee. To address the confusion caused by Samson, Gessler promulgated CCR 1505-6:4.27 (now Rule 4.1), setting the threshold at $5000, applied prospectively only. The Court set aside Rule 4.1 as contrary to the still-valid Limits, which could be constitutionally applied in cases dissimilar from Samson’s $2000 in contributions.
While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.