Colorado State Bd. of Medical Examiners v. Colorado Court of Appeals

• Decision Date: 01 July 1996
• Docket Number: No. 96SA212,96SA212
• Citation: 920 P.2d 807
• Parties: COLORADO STATE BOARD OF MEDICAL EXAMINERS, Petitioner, v. The COLORADO COURT OF APPEALS; and Cynthia J. Owens, M.D., Respondents.
• Court: Colorado Supreme Court

Page 807

920 P.2d 807

COLORADO STATE BOARD OF MEDICAL EXAMINERS, Petitioner, v. The COLORADO COURT OF APPEALS; and Cynthia J. Owens, M.D. Respondents.

No. 96SA212.

Supreme Court of Colorado En Banc.

July 1, 1996.

Gale A. Norton, Attorney General, Timothy M. Tymkovich, Solicitor General, Steven K. ErkenBrack, Chief Deputy Attorney General, Merrill Shields, Deputy Attorney General, Linda L. Siderius, First Assistant Attorney General, Matthew E. Norwood, Robert N. Spencer, Assistant Attorneys General, Regulatory Law Section, Denver, for Petitioner.

Yu Stromberg Cleveland, P.C., Frederick Y. Yu, Gregory C. Parham, Denver, for Respondents.

Justice MULLARKEY delivered the Opinion of the Court.

In this original proceeding pursuant to C.A.R. 21, the petitioner, the Colorado State Board of Medical Examiners (the Board), seeks a writ of prohibition to stay an order of the court of appeals. The Board summarily suspended the respondent's license to practice medicine on May 21, 1996, effective May 24, 1996. The suspension was issued pursuant to the State Administrative Procedure Act (the APA), sections 24-4-101 to -108, 10A C.R.S. (1988 & 1995 Supp.), and, in particular, section 24-4-104(4), 10A C.R.S. (1988), of the APA. Thereafter, the respondent, Cynthia J. Owens, M.D. (Owens), filed a motion in the Denver District Court to stay her suspension. On May 24, 1996, the trial court orally granted a temporary restraining order, staying the effective date of the suspension until May 31, 1996, to permit the trial court to undertake the necessary research and analysis on Owens' motion. On May 29, 1996, having reviewed the relevant statutory and case law, the trial court denied Owens' motion for a temporary restraining order. However, the trial court left its previous order in effect until May 31, 1996, at 5:00 p.m.

Owens then sought a stay from the court of appeals pending appeal of the Board's order of suspension. On May 31, 1996, the court of appeals partially granted Owens' motion and stayed suspension of her license until July 1, 1996. The court of appeals provided an accelerated briefing schedule, indicating that it would reconsider the motion when the briefing was completed.

The Board promptly petitioned this court for a writ of prohibition and, on June 10 1996, we issued a "Rule to Show Cause" why the stay should not be dissolved. We now make the rule absolute and dissolve the stay entered by the court of appeals.

I.

Owens has been licensed to practice medicine in Colorado since December 13, 1977, and has a family practice in Englewood, Colorado. In September 1991, "Inquiry Panel B" (the Panel) of the Board initiated proceedings by formal complaint against Owens under section 12-36-118(5), 5B C.R.S. (1991 & 1995 Supp.), of the Medical Practice Act (the MPA). Pursuant to the complaint, Owens entered into a Stipulation and Final Agency Order (the 1992 Stipulation) with the Panel. In the 1992 Stipulation, Owens admitted to a previous substance abuse dependence which established a prima facie violation of the MPA. ¹ See § 12-36-117(1)(i), 5B C.R.S (1991). The 1992 Stipulation placed her license on probationary status for five years during which time she agreed to abstain totally from the use of habit-forming drugs and/or controlled substances except for those prescribed by a licensed physician (other than herself). In the event such a substance was prescribed for her, she was required to notify her treatment monitor. Owens also was required to undergo random urine drug screenings. During this probationary period, Owens was temporarily suspended for use of barbiturates. Further, the Panel found that Owens violated the 1992 Stipulation on a number of occasions between March 1993 and March 1995 by her use of prohibited substances as evinced by random urine drug screenings.

Due, among other reasons, to her violations of the 1992 Stipulation, the Panel initiated a disciplinary complaint against Owens. As a result of that disciplinary action, the Panel and Owens entered into another Stipulation and Final Agency Order on January 18, 1996 (the 1996 Stipulation). The 1996 Stipulation was attributable to evidence that Owens had (1) violated the MPA, sections 12-36-117(1)(p) and (u), 5B C.R.S. (1991 & 1995 Supp.), ² and (2) failed to comply with the 1992 Stipulation.

The 1996 Stipulation again placed Owens' license on probationary status for five years. As before, the terms of the probation mandated that Owens abstain from the use of alcohol and any habit-forming drug or controlled substance (except by legitimate prescription). In relevant part, the 1996 Stipulation further required that Owens: (1) nominate a new practice monitor within thirty days of becoming aware that the practice monitor had ceased to perform his or her functions under the 1996 Stipulation; ³ (2) receive treatment as determined by the Colorado Physician Health Program, and, pursuant to that requirement, attend scheduled meetings with her treatment monitor; and (3) submit to random urine drug screenings and, before placing herself in a situation that would not permit such testing, to so inform and receive prior approval from her treatment monitor.

On May 21, 1996, the Panel summarily suspended Owens' license to practice pursuant to the APA, section 24-4-104(4), 10A C.R.S. (1988). The order of summary suspension stated that the Panel had "reasonable grounds to believe and finds that [Owens'] pattern of failure to comply with orders of the Board constitutes a violation of section 12-36-117(1)(u), C.R.S. of the Medical Practice Act." The Panel found Owens' violations "deliberate and willful." Further, the Panel found that the "public health, safety and welfare imperatively require emergency action pursuant to section 24-4-104(4), C.R.S."

On June 3, 1996, after Owens' summary suspension, the Attorney General (on behalf of the Board and the Panel) issued a "Formal Complaint." The Formal Complaint noted that the Panel found that, between January 18, 1996, and May 21, 1996, Owens had violated the 1996 Stipulation by: (1) failing to timely nominate a practice monitor when she learned that her prior monitor would no longer serve in that capacity (despite a letter reminding her to do so from the Board); (2) using Vicodin, a controlled substance, without prior approval of her treatment monitor; (3) failing to meet with her treatment monitor on more than one occasion; (4) scheduling surgery ⁴ without the prior approval of her treatment monitor (notification was required for purposes of random urine drug screening); and (5) failing to notify her treatment monitor that she was returning to work after the surgery. ⁵ The Formal Complaint also charged Owens with substandard medical practice. ⁶

The Formal Complaint stated two counts against Owens: (1) that she had repeatedly violated an order of the Board in violation of 12-36-117(1)(u), and (2) that she committed two or more acts or omissions which failed to meet the generally accepted standards of medical practice, in violation of section 12-36-117(1)(p). See supra p. 809 n. 2. The Formal Complaint further provided for an informal prehearing conference before the Division of Administrative Hearings in Denver ⁷ and notified Owens of a hearing before an Administrative Law Judge (ALJ) to determine whether she had violated sections 12-36-117(1)(p) and (u) of the MPA and whether her license should be revoked, or suspended, or she otherwise should be disciplined. She was also notified of her duty to answer the Formal Complaint pursuant to section 24-4-105(2)(b), 10A C.R.S. (1995 Supp.).

II.

Judicial review of agency actions is governed under section 24-4-106, 10A C.R.S. (1988 & 1995 Supp.), of the APA. Generally, review is available only for final agency actions. § 24-4-106(2), 10A C.R.S. (1988). In this case, no final agency action has yet occurred. See Colorado State Bd. of Medical Examiners v. Lopez-Samayoa, 887 P.2d 8, 13 (Colo.1994) ("Once the hearing panel issues its decision, that decision becomes the final agency action and is subject to judicial review."). In very limited circumstances, a court may intervene in an ongoing administrative proceeding. Section 24-4-106(8) provides as follows:

Upon a showing of irreparable injury, any court of competent jurisdiction may enjoin at any time the conduct of any agency proceeding in which the proceeding itself or the action proposed to be taken therein is clearly beyond the constitutional or statutory jurisdiction or authority of the agency. If the court finds that any proceeding contesting the jurisdiction or authority of the agency is frivolous or brought for the purpose of delay, it shall assess against the plaintiff in such proceeding costs and a reasonable sum for attorney fees (or an equivalent sum in lieu thereof) incurred by other parties, including the state.

§ 24-10-106(8), 10A C.R.S. (1988). Two requirements are imposed to justify court intervention pursuant to this subsection: a showing of irreparable injury and an agency action which is "clearly beyond the constitutional or statutory jurisdiction or authority of the agency." Id.

The Board concedes that Owens has been irreparably harmed by the summary suspension of her license. Hence, the only remaining question is whether the Board has acted outside its statutory jurisdiction such that its actions must be enjoined.

The Board contends that the doctrine of separation of powers precludes the court of appeals' stay because the Board has jurisdiction to summarily suspend a physician's license. Further, the Board asserts that its action in suspending Owens' license was within the scope of its authority and, hence, the court of appeals lacked jurisdiction to stay Owens' suspension.

In contrast, Owens contends that the court of appeals correctly stayed the suspension because the Board is without statutory authority to summarily suspend a license under the MPA and, under the terms of the 1996...