Executive office update: Supreme Court ruling keeps professional review confidential

Tuesday, July 01, 2014 12:07 PM

Alfred Gilchrist, Chief Executive Officer
Colorado Medical Society

Last month the Colorado Supreme Court gave patient safety advocates a gift of immense legal value: the preservation of professional review confidentiality. At a time when some other legal jurisdictions are weakening peer review protections, Colorado’s Supreme Court upheld the privilege in a June 23 decision. The Colorado Medical Board (CMB), an executive agency under the leadership of Gov. John Hickenlooper, challenged an administrative law judge decision that would have weakened professional review protections by allowing professional review records to be subpoenaed and discoverable, and admitted in a civil suit.

The court not only drew an exception for the Colorado Medical Board’s “letters of concern” which were at issue in the case, but also ruled that the professional review statute protects the records of a professional review committee from all forms of subpoena or discovery stating that current law “protects the records of a professional review committee from all forms of subpoena or discover.” The court went on to say, “the statute further protects the records from admissibility in civil suits. We also hold that ‘civil suit’ includes administrative proceedings of an adjudicatory nature.” During the 2012 General Assembly, CMS, the House of Medicine and COPIC had successfully led a coalition to update Colorado’s professional review laws consistent with the current patient safety movement, thus making the recent Supreme Court ruling all the more satisfying.

In our support of the CMB’s appeal of an adverse lower court ruling, CMS argued that breaching confidentiality would discourage if not erase physician candor in professional review proceedings and inevitably compromise patient safety. Our lawyers cited findings from Colorado courts that have historically acknowledged the public health and safety purpose served by this vital doctrine. We also noted the lower court’s contradiction of clear legislative intent – that these records must not be breached. As always, COPIC was a steadfast ally, along with the Colorado Defense Lawyers Association.

The state Supreme Court’s ruling reaffirms a legal doctrine that is routinely challenged by trial attorneys across multiple venues. Over the course of the last decade we have responded to multiple legal challenges, while at the same time rebuffed a range of legislative proposals intended to expand the price tag on a malpractice suit by raising the damage cap and/or shifting the balance of this complex process to the plaintiff attorney’s advantage.

Personal injury lawyers are tough advocates for their point of view. With COPIC at our side, we have been countering their efforts to chip away at one of the most enduring, stable liability systems in the country. This time-honored conflict will persist long after I have retired and opened a bait shop. It is the nature of an adversarial process. We are not expecting any change of heart from the trial bar in the near future, so until we can get out of this groundhog day litigation cycle, we are stuck on a repeat, which requires sustained vigilance and unrelenting advocacy. The Supreme Court has taken the vital aspect of professional review confidentiality out of judicial play, which can only mean the challenges to the privilege will be revisited at the General Assembly. Battles in that venue are largely won and lost in the election cycle. This is why I urge you to support the candidate of your choice during the 2014 election cycle and contribute to our political action committee COMPAC as well as to our small donor committee that donates exclusively to candidates 100 percent committed to maintaining Colorado’s stable tort environment. You can donate online at www.CMS.org/advocacy/compac.

As a former state representative and friend Mike McKinney, MD, told his Texas colleagues, “if you’ve got a license to practice medicine, you’re involved in politics whether you like it or not.”