Justia Colorado Supreme Court Opinion Summaries

Articles Posted in Health Law
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The issue this case presented for the Colorado Supreme Court’s review centered on whether an investigative subpoena issued by the Colorado Medical Board (the “Board”) can have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment (the “CDPHE”) pursuant to a policy that violated the Open Meetings Law (the “OML”) or the State Administrative Procedure Act (the “APA”). Scott McLaughlin, M.D. was a physician licensed to practice medicine in Colorado. As part of his practice, he evaluated patients to see if they had a qualifying condition that would benefit from the use of medical marijuana. Information related to medical marijuana in Colorado is maintained by the CDPHE in a confidential registry that includes the names of all patients who have applied for and are entitled to receive a marijuana registry identification card, as well as the names and contact information for the patients’ physicians and, if applicable, their primary caregivers. In May 2014, the CDPHE referred McLaughlin to the Board for investigation based on a high caseload of patients for whom marijuana was recommended. McLaughlin refused to comply with the subpoena, and he and several other physicians whom the CDPHE had referred to the Board and who had received subpoenas from the Board filed suit in the Denver District Court, seeking, among other things, to enjoin the Board from enforcing its subpoenas. The Supreme Court concluded that because neither the CDPHE’s adoption of the Referral Policy nor its referral of Boland to the Board violated the OML or the APA, Boland’s contention that the subpoena to him was void because the Policy and referral were void was based on a flawed premise and was therefore unpersuasive. Even if the adoption of the Referral Policy and the referral itself violated the OML or the APA, however, we still conclude that the Board’s subpoena to Boland had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose. View "Colorado Medical Board v. McLaughlin" on Justia Law

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This case was companion to Colorado Medical Board v. McLaughlin, 2019 CO 93, __ P.3d __, wherein the Colorado Supreme Court was asked to determine whether an investigative subpoena issued by the Colorado Medical Board (the “Board”) could have a lawfully authorized purpose if the investigation was prompted by a complaint made by the Colorado Department of Public Health and Environment (the “CDPHE”) pursuant to a policy that violated the Open Meetings Law (the “OML”) or the State Administrative Procedure Act (the “APA”). Petitioner James Boland, M.D. was a physician licensed to practice medicine in Colorado. He primarily examined patients to determine if they would benefit from the use of medical marijuana. Information related to medical marijuana in Colorado is maintained by the CDPHE in a confidential registry that includes the names of all patients who have applied for and are entitled to receive a marijuana registry identification card, as well as the names and contact information for the patients’ physicians and, if applicable, their primary caregivers. In June 2014, the CDPHE referred Boland to the Board for investigation based on his “[h]igh plant count recommendations and high percent of patients under age of 30 [sic] for medical marijuana referrals.” Boland refused to comply with the subpoena, and he and several other physicians whom the CDPHE had referred to the Board and who had received subpoenas from the Board filed suit in the Denver District Court, seeking, among other things, to enjoin the Board from enforcing its subpoenas. The Supreme Court concluded that because neither the CDPHE’s adoption of the Referral Policy nor its referral of Boland to the Board violated the OML or the APA, Boland’s contention that the subpoena to him was void because the Policy and referral were void was based on a flawed premise and was therefore unpersuasive. Even if the adoption of the Referral Policy and the referral itself violated the OML or the APA, however, we still conclude that the Board’s subpoena to Boland had a lawfully authorized purpose because it was issued pursuant to the Board’s statutory authority to investigate allegations of unprofessional conduct and was properly tailored to that purpose. View "Boland v. Colorado Medical Board" on Justia Law

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Consistent with Medical Marijuana Policy No. 2014-01 (the “Referral Policy”), which the Colorado Department of Public Health and Environment (the “CDPHE”) had developed after receiving input from staff of the Colorado Medical Board (the “Board”), the CDPHE referred John Does 1–9 (the “Doctors”) to the Board for investigation of unprofessional conduct regarding the certification of patients for the use of medical marijuana. The Doctors filed suit, contending, among other things, that: (1) the Referral Policy was void because it was developed in violation of the Colorado Open Meetings Law (the “OML”); and (2) both the Referral Policy and the referrals to the Board constituted final agency actions under the State Administrative Procedure Act (the “APA”), and the CDPHE did not follow the procedures outlined therein, thereby rendering both the Referral Policy and the referrals void. After review, the Colorado Supreme Court concluded: (1) an entire state agency could not be a “state public body” within the meaning of the OML, and therefore the Doctors did not establish the CDPHE violated the OML; (2) the Referral Policy was an interpretive rather than a legislative rule, therefore, it fell within an exception to the APA and was not subject to the APA’s rulemaking requirements; and (3) the act of referring the Doctors to the Board did not constitute final agency action and therefore was not reviewable under the APA. View "Doe v. Colorado Department of Public Health and Environment" on Justia Law

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Plaintiff-petitioner Charissa Schultz was injured in a 2015 car accident in which the other driver failed to stop at a stop sign. The other driver’s insurance company settled for its $25,000 policy limit, and Schultz made a demand on her own uninsured/underinsured motorist benefits under her GEICO policy, which also had a $25,000 limit. In April 2017, after months of correspondence and apparent review of an MRI performed on Schultz in April 2015, GEICO offered Schultz its full policy limit, and it did so without requesting that she undergo an independent medical examination (“IME”). Indeed, GEICO’s claim logs reveal that at the time GEICO decided to offer Schultz its policy limits, it “concede[d] peer review wouldn’t be necessary,” indicating an affirmative decision not to request an IME. A few months later, Schultz filed the present lawsuit asserting claims for bad faith breach of an insurance contract and unreasonable delay in the payment of covered benefits. GEICO denied liability, disputing the extent and cause of Schultz’s claimed injuries and asserting that causation surrounding the knee replacement surgeries was “fairly debatable” because Schultz had preexisting arthritis, which GEICO claimed may independently have necessitated her surgeries. To establish its defense, GEICO ordered the IME and the district court granted that request. The Colorado Supreme Court concluded GEICO’s conduct had to be evaluated based on the evidence before it when it made its coverage decision and that, therefore, GEICO was not entitled to create new evidence in order to try to support its earlier coverage decision. The Court also concluded the district court abused its discretion when it ordered Schultz to undergo an IME over three years after the original accident that precipitated this case and a year and a half after GEICO had made the coverage decision at issue. View "Schultz v. GEICO Casualty Company" on Justia Law

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When Charlotte Fischer moved into a nursing home, she received an admissions packet full of forms. Among them was an agreement that compelled arbitration of certain legal disputes. The Health Care Availability Act (“HCAA” or “Act”) required such agreements contain a four-paragraph notice in a certain font size and in bold-faced type. Charlotte’s agreement included the required language in a statutorily permissible font size, but it was not printed in bold. Charlotte’s daughter signed the agreement on Charlotte’s behalf. After Charlotte died, her family initiated a wrongful death action against the health care facility in court. Citing the agreement, the health care facility moved to compel arbitration out of court. The trial court denied the motion, and the court of appeals affirmed, determining the arbitration agreement was void because it did not strictly comply with the HCAA. At issue was whether the Act required strict or substantial compliance. The Colorado Supreme Court held "substantial:" the agreement at issue her substantially complied with the formatting requirements of the law, notwithstanding the lack of bold type. View "Colorow Health Care, LLC v. Fischer" on Justia Law

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Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was whether the non-party medical providers were “in consultation with” Defendants such that section 107(1)(d)(II) removed that typically privileged information from the protection of the physician–patient privilege. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded that the Baileys did waive that privilege, it should reconsider whether there is any risk that: (1) ex parte interviews with the non-party medical providers would inadvertently reveal residually privileged information; or (2) Defendants would exert undue influence on the non-party medical providers in the course of any ex parte interviews. View "In re Bailey v. Hermacinski" on Justia Law

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When Arvada, Colorado police officers responded to a reported domestic disturbance in Terry Ross’s home, Ross went into a bedroom and shot himself. Officers radioed for an ambulance whose crew delivered him to the hospital. There, doctors treated Ross’s wounds as Arvada officers kept watch over him. When Ross, and later his estate, could not pay for his care, the hospital billed the City of Arvada nearly $30,000. The question presented by this case was essentially whether Arvada had to pay the tab. The trial court and court of appeals said yes; both read Colorado’s “Treatment while in custody” statute as entitling the hospital to relief. Relying on Poudre Valley Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), the trial court decided the statute assigned police departments (or any agency that detains people) a duty to pay healthcare providers for treatment of those in custody. The court of appeals affirmed on essentially the same grounds. The Colorado Supreme Court, however, concluded the statute did not create any duty to a healthcare provider. Furthermore, the Court concluded that the hospital’s claim for unjust enrichment survived. Because that claim was contractual, the Court concluded the Colorado Governmental Immunity Act did not prohibit it. Therefore, the Court reversed the judgment of the court of appeals in part and remanded for further proceedings. View "City of Arvada ex rel. Arvada Police Department v. Denver Health" on Justia Law

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In March 2016, Catholic Health Initiatives Colorado (d/b/a Centural Health – St. Anthony North Hospital) filed suit against architectural firm Earl Swensson Associates (“ESA”) after ESA designed Catholic Health’s new hospital, Saint Anthony North Health Campus (“Saint Anthony”). Catholic Health alleged that ESA breached its contract and was professionally negligent by failing to design Saint Anthony such that it could have a separately licensed and certified Ambulatory Surgery Center (“ASC”). In December 2016, Catholic Health filed its first expert disclosures, endorsing Bruce LePage and two others. Catholic Health described LePage as an expert with extensive experience in all aspects of preconstruction services such as cost modeling, systems studies, constructability, cost studies, subcontractor solicitation, detailed planning, client relations, and communications in hospital and other large construction projects. Catholic Health endorsed LePage to testify about the cost of adding an ASC to Saint Anthony. At a hearing, ESA argued that the lack of detail in LePage’s report prevented ESA from being able to effectively cross-examine him. ESA further argued that striking LePage as an expert was the proper remedy because Rule 26(a)(2)(B)(I) limits expert testimony to opinions that comply with the Rule, and LePage offered no opinions in compliance. In 2015, the Colorado Supreme Court amended Colorado Rule of Civil Procedure 26(a)(2)(B) to provide that expert testimony “shall be limited to matters disclosed in detail in the [expert] report.” In this case, the trial court concluded that this amendment mandated the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. The Supreme Court concluded the amendment created no such rule of automatic exclusion. Instead, the Court held that the harm and proportionality analysis under Colorado Rule of Civil Procedure 37(c) remained the proper framework for determining sanctions for discovery violations. Because the trial court here did not apply Rule 37(c), the Court remanded for further development of the record. View "Catholic Health v. Swensson" on Justia Law

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In 2010, the Colorado Governor, under guidance from the state's medical and nursing boards, decided that Colorado would opt-out of a federal regulation requiring certified registered nurse anesthetists (CRNAs) administer anesthesia under a physician's supervision. Under the regulation, hospitals, ambulatory surgical centers and critical access hospitals received Medicare reimbursement if CRNAs worked under a physician's supervision. Petitioners the Colorado Medical Society and the Colorado Society of Anesthesiologists, filed suit against the Governor, claiming that Colorado law did not permit CRNAs to administer anesthesia without supervision. In ruling on the Governor's motion to dismiss, the trial court found that petitioners failed to state a valid claim and granted relief. The appellate court agreed with the trial court's conclusion. The Supreme Court agreed with the result, but held that the Governor's decision to opt-out of the federal regulation was revieweable by a court only for a gross abuse of discretion. Because petitioners did not allege that such a gross abuse occurred here, the court of appeals' decision to affirm dismissal of the case was affirmed. View "Colorado Medical Society v. Hickenlooper" on Justia Law

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Commercial Research, LLC (“Creditor”) obtained an assignment of a default judgment that had been entered against Gary S. Roup in a Texas court. Creditor then filed the judgment in Colorado and began collection proceedings against Roup’s assets, including $3,729.24 held in a Health Savings Account (HSA). Roup asserted these funds were exempt from attachment or garnishment because his HSA is a retirement plan under section 13-54-102(1)(s), which exempted certain types of property (including funds held in any “retirement plan”) from levy and sale. The issue this case presented for the Supreme Court's review centered on whether an HSA qualified as a “retirement plan” for the purposes of section 13-54-102(1)(s), C.R.S. (2014). The Court held that an HSA is not a “retirement plan” within the meaning of Colorado’s exemption statute. "An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during a person’s lifetime. The General Assembly has not chosen to provide an exemption for HSAs in the relevant statutes." The Court affirmed the judgment of the court of appeals. View "Roup v. Commercial Research, LLC" on Justia Law

Posted in: Health Law