Board of Medical Examiners v. Duhon

895 P.2d 143, 19 Brief Times Rptr. 821, 1995 Colo. LEXIS 235, 1995 WL 300019
CourtSupreme Court of Colorado
DecidedMay 15, 1995
Docket93SC505
StatusPublished
Cited by16 cases

This text of 895 P.2d 143 (Board of Medical Examiners v. Duhon) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Medical Examiners v. Duhon, 895 P.2d 143, 19 Brief Times Rptr. 821, 1995 Colo. LEXIS 235, 1995 WL 300019 (Colo. 1995).

Opinions

Justice KIRSHBAUM

delivered the Opinion of the Court.

In Board of Medical Examiners v. Duhon, 867 P.2d 20 (Colo.App.1993), the court of appeals reversed the trial court’s order enforcing a subpoena duces tecum issued by the petitioner Board of Medical Examiners (the Board) pursuant to the Colorado Medical Practices Act, §§ 12-36-101 to -137, 5B C.R.S. (1991) (the Act) and served upon the respondent, S. Crawford Duhon, M.D. (Duhon).1 The subpoena demanded the production of patient records reflecting Duhon’s use of a diagnostic device known as INTERRO.2 Concluding that section 12-36-104(l)(b) of the Act must be construed together with the provisions of section 12-36-118(4) thereof, the court of appeals held that the evidence in the record did not support the trial court’s conclusion that the subpoena was reasonable. Duhon, 867 P.2d at 24. Having granted the Board’s petition for certiorari review of the court of appeals’ determination, we affirm and return the case to that court with directions.

I

On July 19,1990, the Board notified Duhon that it was initiating a complaint against him for alleged professional misconduct pursuant to section 12-36-118(4)(a) of the Act.3 The complaint, issued after the Board had received information from the California Department of Health Services regarding Du-hon’s use of the INTERRO device, in general requested Duhon to furnish information about some of his patients.4

On October 1,1990, Duhon filed an answer to the complaint which included general information as to the nature of the corroborative procedures he employed in connection with his use of the INTERRO device but did not include patient names.

On November 14, 1991, the Board issued a subpoena duces tecum to Duhon requesting him to produce “complete office records for all patients in which the INTERRO device was used as a diagnostic tool by [Duhon] for the time frame of January 1, 1991, through November 13, 1991,” pursuant to section 12-36-104(l)(b) of the Act. That section states in pertinent part as follows:

Powers and duties of board. (1) In addition to all other powers and duties conferred and imposed upon the board by this article, the board has the following powers and duties to:
[145]*145[[Image here]]
(b) Make investigations, hold hearings, and take evidence in all matters relating to the exercise and performance of the powers and duties vested in the board and, in connection with any investigation (whether before or after a formal complaint is filed pursuant to section 12-86-118) or hearing and through any member, the secretary, or chief administrative officer thereof, subpoena witnesses, administer oaths, and compel the testimony of witnesses and the production of books, papers, and records relevant to any inquiry or hearing. Any subpoena issued pursuant to this article shall be enforceable by the district court.

§ 12 — 86—104(l)(b), 5B C.R.S. (1991).

Duhon refused to comply with the subpoena, asserting that it was burdensome and oppressive and exceeded the Board’s authority. Subsequently, the Board filed a Petition for Enforcement of Administrative Subpoena Duces Tecum with the trial court, pursuant to section 12-36-104(l)(b) of the Act.5 The Board’s petition contained the following pertinent statements:

It is the Board’s position that such measurement [of the galvanic skin response to an electrical current by INTERRO] is utterly meaningless for diagnosing physical conditions in the human body, certainly as it is purported to be interpreted by the INTERRO device. In [previous physician disciplinary] proceedings, the Board alleged that the use of this device failed to meet generally accepted standards of medical practice.

Copies of the subpoena and of the return of service were attached to the petition.

On March 25, 1992, Duhon filed a Motion to Quash Administrative Subpoena, asserting, inter alia, that the subpoena was not authorized by the Act. Duhon also issued a subpoena directing the Board to produce information concerning its investigation of other physicians who have used the INTERRO device. The Board in turn filed a motion to quash Duhon’s subpoena, asserting that Du-hon was not entitled to issue such subpoena.

On May 7,1992, the trial court conducted a hearing on the two motions to quash subpoena. The Board introduced no evidence at the hearing, although the Board’s attorney stated that the “Board would like to get those records to see if Dr. Duhon is confirming his diagnosis with another medically established diagnostic product or procedure_” Du-hon’s attorney introduced two photographs of the INTERRO device into evidence, requested an evidentiary hearing, and described as an offer of proof eight additional documents and anticipated testimony by two witnesses.6 The trial court denied Duhon’s requests.

At the conclusion of the hearing, the trial court granted the Board’s motion to quash Duhon’s subpoena and denied Duhon’s motion to quash the Board’s subpoena. The trial court also made the following findings and conclusions:

I would find from the statements of [the Board’s counsel] that this subpoena is for a valid purpose or lawfully authorized purpose, and that is to determine whether or not in the use of INTERRO as a diagnostic device, or method, Dr. Duhon has received or obtained confirmation of that diagnosis by other physicians [sic].

The trial court further found that the information sought was relevant to the inquiry “because if there were going to be an indication of confirmation of the use of INTERRO as a diagnostic tool, it would logically be revealed in the medical records.” The trial court rejected Duhon’s arguments that the Board’s subpoena was superfluous or overly burdensome and that the medical records were protected by the physician/patient privilege established by section 13-90-107(l)(d)(III)(C), 6A C.R.S. (1987).

On appeal, the court of appeals reversed that portion of the trial court’s order enforcing the Board’s subpoena and denying Du-hon’s motion to quash said subpoena. The court of appeals initially concluded that the Board has no authority to issue a subpoena [146]*146pursuant to the Act until at least after a complaint has been initiated, the subject of the complaint has been notified of all matters complained of, and the complaint has been referred to an inquiry panel for investigation pursuant to section 12-36-118(4) of the Act. Duhon, 867 P.2d at 24. The court also held that because the Board did not present any evidence delineating the specific contents of the complaint and answer, establishing the dates of such documents, or establishing when an inquiry panel had been convened, the Board failed to satisfy its burden of proving the regularity and reasonableness of the subpoena as required by this court’s decision in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980).

II

The Board argues, contrary to the conclusion reached by the court of appeals, that the Act grants it authority to issue administrative subpoenas at any time.

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Board of Medical Examiners v. Duhon
895 P.2d 143 (Supreme Court of Colorado, 1995)

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Bluebook (online)
895 P.2d 143, 19 Brief Times Rptr. 821, 1995 Colo. LEXIS 235, 1995 WL 300019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-medical-examiners-v-duhon-colo-1995.