Colorado State Bd. of Medical Examiners v. McCroskey

Citation940 P.2d 1044
Decision Date07 November 1996
Docket NumberNo. 95CA1817,95CA1817
PartiesCOLORADO STATE BOARD OF MEDICAL EXAMINERS, Complainant-Appellee, v. Brian L. McCROSKEY, M.D., Respondent-Appellant. . IV
CourtCourt of Appeals of Colorado

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Robert N. Spencer, Assistant Attorney General, Denver, for Complainant-Appellee.

Tondre and Lapuyade, Brice A. Tondre, Denver, for Respondent-Appellant.

Opinion by Judge DAVIDSON.

Respondent, Brian L. McCroskey, M.D., appeals from an order of the Colorado State Board of Medical Examiners (Board) issuing him a letter of admonition for acts of medical recordkeeping falling below generally accepted standards of medical practice. The primary issue is whether recordkeeping is included in the practice of medicine. We hold that it is, and affirm.

The facts of this case, and much of the procedural history, are set forth in State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994) (McCroskey II ). As pertinent here, an inquiry panel of the Board issued a letter of admonition to respondent based on incidents arising from the care of an emergency room patient at a Denver hospital. Respondent declined to accept the letter and, pursuant to § 12-36-118(4)(c)(III), C.R.S. (1991 Repl.Vol. 5B), of the Medical Practice Act (MPA), the inquiry panel formally charged respondent with violating § 12-36-117(1)(p), C.R.S. (1991 Repl.Vol. 5B), which, as then in effect, included as unprofessional conduct "two or more acts or omissions which fail to meet generally accepted standards of medical practice." Pursuant to § 12-36-118(1), C.R.S. (1991 Repl.Vol. 5B), the inquiry panel assigned the matter to an Administrative Law Judge (ALJ) for a hearing.

The ALJ found that, after the patient's death, respondent had changed a note in the patient's record that estimated the patient's blood loss at 3,000 ccs to read 2,000 ccs by erasing the "3" and writing a "2" over it. The ALJ determined that erasing and writing over the entry in the patient's record was in violation of § 12-36-117(1)(p). In addition, the ALJ found that respondent had added a staff note to the patient's medical record after the patient's death and backdated the note to the date of death. However, the ALJ also found that many physicians backdate medical records and, therefore, determined that the backdating of the record was not in violation of generally accepted standards of practice.

Having found only one violation of § 12-36-117(1)(p), the ALJ recommended that no discipline be imposed. The Board, however, on review, disagreed with the ALJ. It determined that backdating a medical record falls below generally accepted standards of medical practice and, finding a second violation, ordered the issuance of a letter of admonition to respondent.

Respondent appealed, and a division of this court reversed the Board's order, holding that the existence and nature of "generally accepted standards of medical practice" was an evidentiary fact. Thus, the court concluded, the Board was bound by the ALJ's finding. Board of Medical Examiners v. McCroskey, (Colo.App. No. 92CA1433, June 17, 1993) (not selected for official publication) (McCroskey I). On certiorari review, the supreme court disagreed, and held that the generally accepted standard of practice--the standard of care--was an ultimate fact upon which the Board could properly exercise its own judgment. See McCroskey II, supra.

The supreme court then remanded the case to this court with directions to address respondent's argument that medical recordkeeping was not subject to regulation by the Board under the MPA. McCroskey II, supra. In turn, this court remanded the case to the Board for a determination by the ALJ whether respondent's backdating of medical records had occurred in the course of treatment of the patient. The remand order specified that the ALJ could take additional evidence if he deemed it necessary. Board of Medical Examiners v. McCroskey, (Colo.App. No. 92CA1433, Jan. 19, 1995) (not selected for official publication) (McCroskey III ).

On remand, the ALJ determined that the evidence taken at the initial hearing was sufficient. The ALJ also found that medical recordkeeping had been regulated by the provisions of the MPA at the time respondent backdated the note. Finally, the ALJ determined that the record entries had been made during the course of treatment of the patient. On review, the Board reaffirmed its original order issuing a letter of admonition to the respondent.

I.

As a preliminary matter, respondent contends that the ALJ erred in refusing to conduct an evidentiary hearing upon remand. He argues that McCroskey II changed the standard of care and that he should, therefore, have the opportunity to relitigate that issue. We disagree.

The pronouncement of an appellate court on an issue in a case presented to it becomes the law of the case. Super Valu Stores, Inc. v. District Court, 906 P.2d 72 (Colo.1995). The law of the case doctrine applies to final decisions that affect the same parties in the same case. Kuhn v. State, 897 P.2d 792 (Colo.1995).

The doctrine of the law of the case protects litigants from the expenditure of time and money involved in the reargument of settled issues and ensures that lower courts follow the decisions of higher courts in subsequent proceedings. People v. Roybal, 672 P.2d 1003 (Colo.1983).

Here, the standard of care issue has already been decided. A reading of McCroskey II reveals that, after having determined the appropriate standard of care, the supreme court proceeded to review the Board's conclusion that respondent's backdating entries in the patient's medical records was a breach of that standard. The court found substantial evidence in the record to support the Board's conclusion, and specifically upheld it. See McCroskey II, supra.

Moreover, the supreme court's directions to this court expressly confined the scope of the proceedings on remand to the resolution of a single issue: whether recordkeeping is subject to regulation under the MPA. See Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686 (Colo.App.1988) (When an appellate court remands a case with specific directions to enter a particular judgment or pursue a prescribed course, a lower court has no discretion except to comply with such directions.).

II.

Thus, we address the issue on remand, which is respondent's contention that recordkeeping does not constitute an act of medical practice subject to regulation under § 12-36-117(1)(p) of the MPA. For several reasons, we disagree.

A statute must be given effect according to the intent of the General Assembly, and to ascertain legislative intent, courts look first to the statutory language. Colorado State Board of Medical Examiners v. Saddoris, 825 P.2d 39 (Colo.1992).

Also, what constitutes the practice of medicine under the MPA must be construed in light of its stated purpose:

The general assembly declares it to be in the interests of public health, safety, and welfare to enact laws regulating and controlling the practice of the healing arts to the end that the people shall be properly protected against unauthorized, unqualified, and improper practice of the healing arts in this state, and this article shall be construed in conformity with this declaration of purpose.

Section 12-36-102, C.R.S. (1991 Repl.Vol. 5B). Thus, the MPA must be construed to further the beneficial purpose of the protection of the public of this state. See § 2-4-201, C.R.S. (1980 Repl.Vol. 1B); Colorado State Board of Medical Examiners v. Saddoris, supra.

The appropriate construction of a statute is a question of law. Colorado Division of Employment & Training v. Parkview Episcopal Hospital, 725 P.2d 787 (Colo.1986). However, when the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited. The agency's determination is to be accepted if it is warranted by the record and has a reasonable basis in law. Nicholas v. North Colorado Medical Center, Inc., 902 P.2d 462 (Colo.App.1995), aff'd, 914 P.2d 902 (Colo.1996).

Here, the ALJ, with record support, determined that:

The preparation of medical records is part of patient care and a standard of medical practice exists with regard to patient records. Medical records serve the purposes of continuity of care from one provider to another, peer review, the education of younger physicians, the continuing education of all physicians, protecting the legal rights of patients and their families and, in cases such as this, determining cause of death.

The Board, in adopting the ALJ's findings, specifically concluded that recordkeeping constituted medical practice under § 12-32-117(1)(p) of the MPA.

Respondent does not quarrel with the Board's conclusion that recordkeeping is an integral part of medical practice. He asserts, however, that recordkeeping does not fall within the scope of § 12-36-117(1)(p), primarily because it is not explicitly referenced in the definition of the practice of medicine set forth in § 12-36-106(1), C.R.S. (1991 Repl.Vol. 5B & 1996 Cum.Supp.). Instead, in his view, § 12-36-106(1) defines medical practice as it applies in § 12-36-117(1)(p) to include only the actual treatment of patients. We do not agree.

By its title, § 12-36-106, C.R.S. (1991 Repl.Vol. 5B) defines "practice of medicine" and lists particular "exemptions from licensing requirements."

Specifically, § 12-36-106(1) provides that:

(1) For the purpose of this article 'practice of medicine' means:

(a) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental...

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