August 19, 2019

Colorado Court of Appeals: Subpoena Issued for Lawfully Authorized Purpose Despite Having Arisen from Different Agency

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. Boland on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Medical Practice Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. Boland, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. A letter accompanying the subpoena explained that the Board had received information regarding Dr. Boland’s conduct as a physician and a possible violation of the Medical Practice Act. The letter also noted that the Board had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. Boland’s medical marijuana recommendations. In response, Dr. Boland sent a written objection to the Board, arguing that CDPHE’s referral policy was invalidly adopted, and on that basis he refused to produce the records. The Board filed an application for an order enforcing the subpoena, which was granted by the district court. The district court concluded that even if the referral policy was invalid, only CDPHE could be enjoined from enforcing it.

On appeal, Dr. Boland argued that the trial court erred in enforcing an unlawful subpoena. He alleged that because CDPHE based its referral on a policy that was unlawfully adopted, the subpoena caused by the referral had no lawful purpose. Even assuming the policy was adopted in violation of the Open Meetings Law, CDPHE’s conduct does not determine whether the Board acted lawfully in issuing the subpoena. The Board has a statutory duty to investigate whether a licensed physician engages in unprofessional conduct and is vested with authority to conduct investigations and issue administrative subpoenas. Thus, the subpoena in this case was issued for a lawful purpose.

The judgment enforcing the subpoena was affirmed.

Summary provided courtesy of Colorado Lawyer.

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