Board of Medical Examiners, State of Colo. v. Duhon

• Decision Date: 06 May 1993
• Docket Number: No. 92CA1009,92CA1009
• Citation: 867 P.2d 20
• Parties: BOARD OF MEDICAL EXAMINERS, STATE OF COLORADO, Petitioner-Appellee, v. S. Crawford DUHON, M.D., Respondent-Appellant. . III
• Court: Colorado Court of Appeals

Page 20

867 P.2d 20

BOARD OF MEDICAL EXAMINERS, STATE OF COLORADO, Petitioner-Appellee, v. S. Crawford DUHON, M.D., Respondent-Appellant.

No. 92CA1009.

Colorado Court of Appeals Div. III.

May 6, 1993.

Rehearing Denied July 15, 1993.

Certiorari Granted Feb. 7, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., William Higgins, First Asst. Atty. Gen., Denver, for petitioner-appellee.

Sheila H. Meer, P.C., Sheila H. Meer, Denver, for respondent-appellant.

Opinion by Judge CRISWELL.

The respondent, S. Crawford Duhon (doctor), seeks our review of an order entered by the district court enforcing an administrative subpoena duces tecum issued by the Colorado State Board of Medical Examiners (board), pursuant to § 12-36-104(1)(b), C.R.S. (1991 Repl.Vol. 5B), which required the doctor to produce "complete office records for all patients" in which a particular device was used by the doctor as a diagnostic tool between January 1, 1991, through November 13, 1991. We reverse the order and remand for a new hearing.

The board filed a petition pursuant to § 12-36-104(1)(b) to enforce a subpoena duces tecum admittedly served upon the doctor for the production of patient records that reflected instances in which the doctor had used a device called "INTERRO" as a diagnostic tool. This petition alleged that the doctor had used the INTERRO device and that the board had previously determined that this device purported to obtain measurements from various acupuncture pressure points of the human body. It also alleged that "such measurement is utterly meaningless for diagnosing physical conditions in the human body, certainly as it is purported to be interpreted by the INTERRO device." It finally asserted that "the use of this device fail[s] to meet generally accepted standards of medical practice."

The doctor filed a motion to quash the board's subpoena. In addition, he served a subpoena duces tecum upon the board's administrator to appear at the hearing upon the board's petition to enforce and the doctor's motion to quash. This required the administrator to produce "any and all records relevant to or concerning investigations of doctors who use or have used INTERRO in Colorado from January 1, 1986...." The board moved to quash this subpoena.

At the hearing on these various motions, no evidence was presented by either party, although the doctor made an offer of proof and offered exhibits designed to demonstrate, among other things, that the board had no probable cause nor any reasonable suspicion to believe that he had violated any proper medical standard. At the completion of this offer of proof, the court quashed the subpoena served upon the board's administrator and entered an order enforcing the board's subpoena.

In taking these actions, the court relied solely upon the motion papers and statements of counsel and found that (1) the purpose for the board's subpoena, which was "to determine whether or not in the use of INTERRO as a diagnostic device, or method, [the doctor] has received or obtained confirmation of that diagnosis by other physicians," was a "lawfully authorized purpose"; (2) the information in the medical records which were the subject of the subpoena was relevant to the purpose of the subpoena; and (3) the number of records involved (estimated as those relating to 150 to 200 patients) did not render the requirements of the subpoena oppressive.

I.

As a preliminary matter, we must first address the question of the extent of the record that this court may consider in passing upon the doctor's appeal.

This issue is presented because, after the trial court's entry of the order enforcing the board's subpoena, the doctor moved to stay the effect of the order pending this appeal. In the hearing on that motion, the court allowed the presentation of evidence, and the doctor, presumably in an attempt to demonstrate the likelihood of his success on this appeal, testified to many of the same facts that had been the subject of his offer of proof in the initial hearing.

The court denied the doctor's requested stay and, in doing so, commented that it considered many of the facts presented in the hearing to be irrelevant to the issue of the requested stay. In addition, the court specifically noted that, in entering its earlier order of enforcement, it had not considered the facts presented in the later hearing. This court later stayed the effect of the trial court's order pending our consideration of the doctor's appeal.

The board contends that, because the trial court did not consider any of the information presented in the second hearing before entering its enforcement order, none of that information can be considered by this court in determining the propriety of the court's earlier order. We agree. See In re Petition of Edilson, 637 P.2d 362 (Colo.1981) (evidence not presented to or considered by trial court will not be considered on review).

Hence, we must consider whether the trial court erred in entering its order of enforcement by looking solely to the record that was before that court at the time it entered that order.

II.

In both the trial court and this court, the doctor has asserted numerous reasons why the board is not entitled to enforce its subpoena. However, they all may be classified into two general submissions.

A.

First, the doctor asserts that, because of his expectation of privacy in his practice, his patient's expectation of confidentiality in their treatment records, and the general prohibition against "fishing expeditions," the board must demonstrate, when challenged, that its subpoena is justified by more than "speculation" or "conjecture." However, we conclude that, particularly in light of the specific requirements of the Act here, no such showing is required. Rather, the board is required only to demonstrate that the subpoena was issued for a lawful purpose under the procedures established by the Act.

The board was created by the Colorado Medical Practice Act (the Act), § 12-36-101, et seq., C.R.S. (1991 Repl.Vol. 5B), to administer its provisions. The Act provides both for the licensing and the disciplining of medical practitioners.

For this latter purpose, the Act defines "unprofessional conduct" in § 12-36-117, C.R.S. (1991 Repl.Vol. 5B). As may be relevant to the issue presented here, that definition includes:

An act or omission constituting grossly negligent medical practice or two or more acts or omissions which fail to meet generally accepted standards of medical practice, whether the two or more acts or omissions occur during a single treatment of one patient, during the course of treatment of one patient, or during the treatment of more than one patient.

Section 12-36-117(1)(p), C.R.S. (1991 Repl.Vol. 5B).

The Act also establishes procedures to be used in any disciplinary investigation. Such an investigation is commenced by a "complaint in writing," which may be made by "any person or may be initiated by the board on its own motion." In either case, however, the physician "complained of" must be given written notice "of the nature of all matters complained of" and 20 days within which to respond to such complaint. It is only upon the receipt of the physician's response (or the passage of 20 days without response) that the matter is referred to an inquiry panel of the board "for investigation." Section 12-36-118(4)(a), C.R.S. (1991 Repl.Vol. 5B).

The investigation may be conducted by the inquiry panel or one or more of its members, by an independent physician, by a member of the board's staff, or by a professional investigator, as the inquiry panel may direct. Upon completion of its investigation, the inquiry panel is to determine whether further proceedings by "formal complaint" are warranted. If so, "the complaint" is referred to the Attorney General "for preparation and filing of a formal complaint." Section 12-36-118(4)(c)(IV), C.R.S. (1991 Repl.Vol. 5B). In such an instance, the filing of a formal complaint with the board will lead to an evidentiary hearing. Section 12-36-118(5), C.R.S. (1991 Repl.Vol. 5B).

The board's investigative powers in these respects include the right "in connection with any investigation (whether before or after a formal complaint is filed pursuant to section 12-36-118)" to "subpoena witnesses" and to require "the productions of books, papers, and records relevant to any inquiry or hearing." Any subpoena issued in accordance with the Act "shall be enforceable by the district court." Section 12-36-104(1)(b), C.R.S. (1991 Repl.Vol. 5B).

We shall assume, without deciding, that, in those instances in which the board has not received a complaint from another party, but desires to initiate a "complaint in writing" itself, it may engage in some pre-complaint investigation of the facts. However, we conclude that the board's authority under § 12-36-104(1)(b) to issue a subpoena "in connection with any investigation" has specific reference only to that investigation described in § 12-36-118(4). Hence, whatever authority the board may possess to conduct some investigation before initiating a complaint in writing, it is only after such a complaint is made, the subject of that complaint has been given notice of all matters complained of, and the complaint has been referred to an inquiry panel for investigation that the inquiry panel has the authority to issue an investigative subpoena.

However, there is no constitutional requirement that an administrative agency possess "probable cause" to believe that a statutory violation has occurred before issuing an investigative subpoena if its issuance is otherwise authorized. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Rather, as a substitute for the probable cause generally required by the Fourth Amendment, the legal justification for the issuance of such a subpoena is grounded upon a showing that:...