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Subpoenaing Otherwise-Privileged Peer Review Materials under C.R.S. §12-36.5-

104(10)(b)(II) and (III) for Use in Appellate Review and Judicial Review

Proceedings

Crow v. Penrose-St. Francs Healthcare Sys., 292 P.3d 1018, 1021-24 (Colo. App. 2012)

Thomas P. McMahon Jones & Keller, P.C.

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THE COLORADO PEER REVIEW PRIVILEGE

Where does it come from? How far does it go?

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• Before we get to that, however, we need to consider the federal side of things.

• Federal claims in federal court are governed by federal law. See, e.g., Mason v. Oklahoma Turnpike,

182 F.3d 1212, 1214 (10th cir. 1998); U.S. Ex Rel. Woodard v. Tynan, 757 F.2d 1085, 1089 (10th Cir. 1985).

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• In particular, evidentiary privileges there are governed by Fed.R.Evid. 501, which looks to the common law.

• Federal common law does not

recognize a quality management or peer review privilege.

Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 188 (1990) (university peer review).

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• The federal courts have almost uniformly refused to recognize assertion of a state medical peer review privilege. E.g., Adkins v. Christie, 488 F.3d 1324, 1326, 1329, 1330 (11th

Cir. 2007) (civil rights); Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005) (civil rights); Virmani v. Novant Health, Inc., 259 F.3d 284, 289 (4th Cir. 2001) (employment discrimination); Mem’l Hosp. v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981) (antitrust); Williams v. Univ. Med. Ctr., 760 F.Supp.2d 1026, 1031-32 (D.Nev.2010) (civil rights, antitrust) (collecting cases).

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THE COLORADO PRIVILEGE

• Colorado first enacted peer review legislation, C.R.S. §§12-43.5-101 et seq., in 1975.

Franco v. Dist. Ct., 641 P.2d 922, 925 (Colo. 1982) (cited in Crow, 292 P.3d at 1022).

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• The statute was amended in 1976, expressly: Recognizing a privilege, by prohibiting

peer review committee records from being subpoenaed in a suit against a physician.

But also providing an exception, that peer

review committee and hospital board records may be subpoenaed in a judicial review suit by a physician.

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• That scheme was superseded when the modern-day Colorado Professional Review Act, C.R.S. §§1-36.5-101 through 203 (“CPRA”), was adopted in 1989.

See Crow, 292 P.3d at 1023; N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828, 840 (Colo.2001).

• The 1989 CPRA retains, and even expands, peer review privilege and exceptions language similar to the 1976 amendment.

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• The current peer review privilege is found at C.R.S. §12-36.5-104(10)(a).

“The records of a professional review committee, a governing board, or the committee on anticompetitive conduct shall not be subject to subpoena or discovery and shall not be admissible in any civil suit brought against a physician who is the subject of such records.” (Emphases added.)

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• The current exceptions are found at C.R.S. §12-36.5-104(10)(b).

“Notwithstanding the provisions of paragraph (a) of this subsection (10), such records shall be subject to subpoena and available for use:

(I) By the committee on anticompetitive conduct; (II) By either party in any appeal or de novo proceeding

brought pursuant to this part 1; (III) By a physician in a suit seeking judicial review of any

action by the governing board; (IV) By a governing board seeking judicial review. (Emphasis added.)

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Of the 4 exceptions, two are puzzling

• Under (I), a physician proceeding before the CAC can’t get the peer review records,

• Only the Committee itself can?

• But it then can’t disclose them to the physician because that’s not authorized by the statute?

• Isn’t that Kafka-esque? See Bulen v. Navajo Refining Co., 9 P.3d 607, 616 ¶38 (Mont. 2000) (citing Franz Kafka, “The Trial,” and criticizing situation where party was prohibited from accessing information about case).

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The second puzzling exception

• Under (IV), why would a governing board ever be seeking judicial review of its own final action?

• And, even if that somehow made sense, Why would (IV) be separated from (III)

When the physician and the hospital

“establishment” are both lumped together in (II)?

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Putting those puzzling exceptions aside

• What does the statute really encompass?

• What are: “Records”?

“Professional Review Committee[s]”?

“Governing Board[s]”?

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Records means anything and everything, including verbal communications • C.R.S. §12-36.5-102(4): “ ‘Records’ means any and all

written or verbal communications ... arising from any activities of a professional review committee ..., including the complaint, response, [related] correspondence ..., recordings or transcripts of proceedings, minutes, formal recommendations, decisions, exhibits, and other similar items or documents typically constituting the records of administrative proceedings.”

• Franco v. Dist. Ct., 641 P.2d 922, 925 n.3 (Colo.1982): “[R]ecords may include the testimony and written reports of witnesses, documents and other material presented to the [peer review] committee, and the committee's notes, memoranda, minutes and other records relating to its investigatory and hearing functions.” (Construing C.R.S. §12-43.5-102(3)(e).)

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Professional review committee means a

peer review committee

• C.R.S. §12-36.5-102(3): “ ‘Professional review committee’ means any committee authorized under the provisions of this article to review and evaluate the professional conduct of and the quality and appropriateness of patient care provided by any physician licensed under article 36 of this title.”

• Crow v. Penrose-St. Francis Healthcare Sys., 169 P.3d 158, 162 n.2 (Colo. 2007): The Colorado Supreme Court uses the CPRA term “professional review committee” and the more common term “peer review committee” interchangeably.

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Governing board is the final decision-making body in the internal peer review process, and any subcommittee of it • Including an evidentiary hearing panel convened under

the board’s authority,

• And an appellate review panel of the board itself. C.R.S. §12-36.5-102(2) (emphasis added): “ ‘Governing board’

means any board, board of trustees, governing board, or other body, or duly authorized subcommittee thereof, of any organization of health care providers, which board or body has final authority pursuant to such organization's written Bylaws, policies, or procedures to take final action regarding the recommendations of any authorized professional review committee.”

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Adding it All Up, what Does this Mean?

• In plain language, the general rule is that peer review materials can’t be subpoenaed or discovered, and are not admissible, in civil litigation.

• But, the statute literally applies only in the case of civil litigation brought against a physician who is the subject of the peer review proceedings.

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Then Came Franco

• A dazzling display of “judicial activism” The statute didn’t mean what it literally said

That peer review records were privileged

In a civil suit brought against a physician

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No, the statute meant more than what it said

• But that approach violates the fundamental principles of statutory construction

• It is presumed that the entire statute is intended to be effective. C.R.S.§2-4-201(1)(b).

• Courts give effect to every word and term. Wash. County Bd. of Equaliz’n v. Petron Dev. Co., 109 P.3d 146, 149 (Colo.2005)

• If the General Assembly had intended to, it could simply have put a period after “in any civil suit.” That would have created a broader privilege.

• Instead, it went on to limit the privilege to suits against a physician.

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So, the Court inserted the “missing” period • It consigned the remainder of the sentence, and the

limitation of the privilege, to judicially-created oblivion. • How did the Court come to this startling insight? Did it

review the legislative history?

In the immortal words of Maynard G. Krebs, “Surely you jest.”

• It simply gleaned the result from “an examination of the

entire statutory scheme.” Franco, 641 P.2d at 927.

• And concluded the legislature had intended to do that which – by expressly extending the sentence to limit the privilege -- it affirmatively hadn’t done.

• And that’s where we are today.

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The ”Real” General Rule

• The hybrid (legislative/judicial) general rule, then, is that is that peer review materials can’t be subpoenaed or discovered, and aren’t admissible, in any civil litigation.

• Even when brought by, rather than against, a physician.

• Except ….

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Two Notable “Exceptions”

• The general rule that peer review materials can’t be subpoenaed or discovered, and aren’t admissible, in any civil litigation

• Does not apply, and those records are subpoenable and available for use: In the administrative appeal portion of peer review

proceedings. C.R.S. §12-36.5-104(10)(b)(II). And in a physician’s judicial review suit in district

court. C.R.S. §12-36.5-104(10)(b)(III).

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APPEAL

• C.R.S. §12-36.5-104(10)(b)(II) provides that “such records shall be subject to subpoena and available for use … [b]y either party in any appeal … brought pursuant to this part 1 ….”

• What is an appeal pursuant to part 1?

• Part 1 is §§ 101 through 107 of article 36.5 of title 12.

• Part 1 uses “appeal” only 6 times, all in 4 other subsections of §104 preceding subsection 10. Subsections 104(7)(a) & (e), 104(8)(a) & (b).

• All in the context of an appeal “before” or “to” the “governing board” or “governing body,” which may hear the appeal itself or designate a party to do so for it.

• In sum, the only appeal that can be “brought pursuant to … part 1” is to the governing board.

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• What is the effect of obtaining the peer review committees’ materials in the course of an appeal to the governing board? I.e., the administrative hearing is over.

• But, going back to the language of the statutory subsection, not only are the peer review materials “subject to subpoena” in any appeal pursuant to part 1, They are also “available for use” in the

appeal. §12-36.5-104(10)(b)(II).

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• In other words, the statute provides that in the internal administrative appeal the record may be expanded to include those materials. But why not just make the materials subject to

subpoena and usable in the administrative hearing in the first place? Doesn’t that make more sense?

• In any event, by providing for the use of peer review

materials in the internal administrative appeal, Those materials end up in the final administrative

record.

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JUDICIAL REVIEW

• That, in turn, means that those materials are then part of the record to be reviewed by a district court in the event of a judicial review action under: C.R.C.P. 106(a)(4) for private hospital

physicians. Crow, 292 P.3d at 1021 ¶14. C.R.S. §24-4-106 for government hospital

physicians. See id. (citing Franco, 641 P.2d at 928 n.7).

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• But the CPRA also separately provides that peer review materials are subject to subpoena and available for use by a physician in a judicial review suit. C.R.S. §12-36.5-104(10)(b)(III). Isn’t that redundant?

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• Not necessarily. For whatever reason, a physician and counsel

may have chosen not to go after the peer review records in the course of an internal administrative appeal.

Nevertheless, they can still be had – and used

– in the judicial review action, even though that expands the administrative record.

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• Note, the Crow opinion expressly did not reach the judicial review portion of the statutory subsection. See 292 P.3d at 1024 ¶27. But, all of the Court of Appeals’

reasoning is equally applicable to judicial review.

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What Was That Reasoning?

• In construing a statute, a court’s duty is to effectuate the legislative intent and purpose.

• A court must first consider the statute’s plain language.

• If that is clear, a court applies the plain and ordinary meaning.

• Crow, 292 P.3d at 1022 ¶¶16-17.

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• The Court of Appeals went with “the plain language.”

• It reasoned that §12-36.5-104(10)(b) “plainly provides” peer review records “shall be subject to subpoena and available for use” in An appeal,

Or a judicial review suit by a physician.

• Crow, 292 P.3d at 1022 ¶21, 1023-24 ¶¶23-25.

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TWO OTHER POINTS WORTH NOTING

• C.R.S. §12-36.5-104(10)(a), which establishes the peer review privilege Provides that the records of a governing board are

privileged

• And, C.R.S. §12-36.5-102(2) defines governing board to include any duly authorized subcommittee of it, i.e.: A hearing panel, and

An appellate review panel

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• But, C.R.S. §12-36.5-104(10)(b) removes that privilege in certain specified circumstances. So, on appellate review, the peer review records of

the hearing panel may be subpoenaed and used. And, on judicial review, the peer review records of

the appellate review panel may be subpoenaed and used.

Remember, those records include internal correspondence (e-mails), notes, memoranda, and other materials.

In other words, there are really two final bites at the apple!

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ONE LAST, CAUTIONARY NOTE

• Even if peer review records have been subpoenaed, obtained and used on appellate review and in judicial review

• Unlike other privileges (e.g., attorney-client), the peer review privilege is not thereby waived or lost with respect to other contexts.

• Thus, the peer review records apparently cannot be used in a separate common law suit against the hospital.

• Because the exceptions to the peer review privilege simply don’t extend to that situation.

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COMMITTEE ON ANTICOMPETITIVE CONDUCT

• The CAC is a permanent, independent committee of the Board of Medical Examiners. C.R.S. §12-36.5-106(1).

• C.R.S. §12-36.5-106(7): A physician aggrieved by final governing board action believed to stem from unreasonable anticompetitive conduct must seek CAC review of the record before seeking de novo review of that conduct in district court.

• C.R.S. §12-36.5-106(10)(a): Final administrative action by the CAC may be reviewed only by the court of appeals pursuant to C.R.S. §24-4-106(11).

• C.R.S. §12-36.5-106(10)(b): After final administrative action by the CAC, an aggrieved physician wishing to challenge final governing board action has the right to de novo review on the merits in district court.