Colorado Supreme Court

Tuesday, July 01, 2014 12:23 PM
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June rulings good news for physicians and patient safety

by Susan Koontz, JD, CMS General Counsel

The Colorado Supreme Court has provided defendant physicians and patient safety advocates court rulings of immense legal value in two decisions handed down this month: the preservation of a vital rule of evidence and professional review confidentiality.

Working together, Colorado Medical Society and COPIC spend considerable resources to protect Colorado’s relatively stable liability climate and collaborate with partner organizations to promote patient safety. These two decisions represent important victories in that battle.

Defendant Physician v. Haralampopoulos: Colorado Supreme Court ruling June 16, 2014
The Colorado Supreme Court issued an important case decision that will help support physicians in the defense of malpractice cases by permitting the introduction of hearsay evidence in support of alternative causes to negligence for plaintiff injuries. In this case, the Court properly recognized that an ex-girlfriend’s statements about a patient’s cocaine abuse were admissible for purposes of diagnosing the past medical event even though they would not affect future treatment. The Court agreed, as advocated by COPIC, CMS and others, that diagnosis of a patient’s condition does not end at some defined point, but frequently continues and is refined as more information is received.

COPIC vigorously defended the practice of good medicine throughout this case that involved two appeals. CMS supported that effort by submitting an Amicus, or friend of the court, brief on behalf of the defendant physicians in the case to help persuade the Colorado Supreme Court to rule in their favor and clarify Colorado hearsay rules in favor of physicians defending malpractice cases. In addition, CMS recognized the importance of the issue to all physicians and recruited additional organizations to join in the Brief on behalf of the defendant physicians, including the American Medical Association (who contributed financially to the case), the Colorado Chapter of the America College of Emergency Physicians, the Colorado Radiological Society, the Colorado Society of Anesthesiologists and the Regents of the University of Colorado.

This decision will assist physicians in defending malpractice claims by permitting the introduction of hearsay evidence in support of alternative causes to negligence for the plaintiff’s injuries. In malpractice cases, plaintiff’s must prove that the alleged negligence caused the injury and many times a primary defense of the physicians is that there was a different cause. Sometimes, as in this case, the evidence of that alternative cause may only be obtained from family members or others who know the patient’s habits and activities.

Colorado Medical Board v. Office of Administrative Courts: Colorado Supreme Court ruling June 23, 2014
The significance of this decision is that the Colorado Supreme Court has reaffirmed professional review in Colorado at a time when courts in other jurisdictions have issued opinions that have had the effect of weakening professional review. The Colorado Medical Board (CMB), an executive agency under the leadership of Governor Hickenlooper, challenged an administrative law judge decision that would have weakened professional review protections by allowing professional review records to be (1) subpoenaed and discoverable, and (2) admitted in an administrative action.

In this case, CMB petitioned the Colorado Supreme Court for review of a district court’s ruling. The Colorado Medical Society, COPIC and the Colorado Defense Lawyers Association joined forces and each submitted an Amicus, or friend of the court, brief in support of CMB’s position.

The Colorado Supreme Court ruled that the professional review statute protects the records of a professional review committee from all forms of subpoena or discovery. The statute further protects the records from admissibility in civil suits, and the Supreme Court also ruled that the term “civil suit” includes administrative proceedings of an adjudicatory nature.

Accordingly, the CMB’s records are protected from subpoena or discovery and are not admissible in the administrative hearing regarding the denial of a physician’s medical license, and the CMB need not furnish the records at issue in this petition.

“This ruling is significant,” said Mark Fogg, COPIC’s General Counsel. “It strongly affirms the principles of the new professional review statute that CMS, COPIC and others worked diligently on to be enacted.”

Learn more
Read complete summaries of both cases by clicking the news link located in the upper right corner of the CMS website home page at

Posted in: Colorado Medicine | Practice Management | Legal and Ethics


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