BOARD OF MEDICAL EXAMINERS, State of Colorado, Petitioner, v. S. Crawford DUHON, M.D., Respondent.
No. 93SC505.
Supreme Court of Colorado, En Banc.
May 15, 1995.
895 P.2d 143
Sheila H. Meer, P.C., Sheila H. Meer, Denver, for respondent.
Justice KIRSHBAUM delivered the Opinion of the Court.
In Board of Medical Examiners v. Duhon, 867 P.2d 20 (Colo. App. 1993), the court of appeals reversed the trial court‘s order enforcing a subpoena duces tecum issued by the petitioner Board of Medical Examiners (the Board) pursuant to the Colorado Medical Practices Act,
I
On July 19, 1990, the Board notified Duhon that it was initiating a complaint against him for alleged professional misconduct pursuant to
On October 1, 1990, Duhon filed an answer to the complaint which included general information as to the nature of the corroborative procedures he employed in connection with his use of the INTERRO device but did not include patient names.
On November 14, 1991, the Board issued a subpoena duces tecum to Duhon requesting him to produce “complete office records for all patients in which the INTERRO device was used as a diagnostic tool by [Duhon] for the time frame of January 1, 1991, through November 13, 1991,” pursuant to
Powers and duties of board. (1) In addition to all other powers and duties conferred and imposed upon the board by this article, the board has the following powers and duties to:
(b) Make investigations, hold hearings, and take evidence in all matters relating to the exercise and performance of the powers and duties vested in the board and, in connection with any investigation (whether before or after a formal complaint is filed pursuant to section 12-36-118) or hearing and through any member, the secretary, or chief administrative officer thereof, subpoena witnesses, administer oaths, and compel the testimony of witnesses and the production of books, papers, and records relevant to any inquiry or hearing. Any subpoena issued pursuant to this article shall be enforceable by the district court.
§ 12-36-104(1)(b) , 5B C.R.S. (1991).
Duhon refused to comply with the subpoena, asserting that it was burdensome and oppressive and exceeded the Board‘s authority. Subsequently, the Board filed a Petition for Enforcement of Administrative Subpoena Duces Tecum with the trial court, pursuant to
It is the Board‘s position that such measurement [of the galvanic skin response to an electrical current by INTERRO] is utterly meaningless for diagnosing physical conditions in the human body, certainly as it is purported to be interpreted by the INTERRO device. In [previous physician disciplinary] proceedings, the Board alleged that the use of this device failed to meet generally accepted standards of medical practice.
Copies of the subpoena and of the return of service were attached to the petition.
On March 25, 1992, Duhon filed a Motion to Quash Administrative Subpoena, asserting, inter alia, that the subpoena was not authorized by the Act. Duhon also issued a subpoena directing the Board to produce information concerning its investigation of other physicians who have used the INTERRO device. The Board in turn filed a motion to quash Duhon‘s subpoena, asserting that Duhon was not entitled to issue such subpoena.
On May 7, 1992, the trial court conducted a hearing on the two motions to quash subpoena. The Board introduced no evidence at the hearing, although the Board‘s attorney stated that the “Board would like to get those records to see if Dr. Duhon is confirming his diagnosis with another medically established diagnostic product or procedure....” Duhon‘s attorney introduced two photographs of the INTERRO device into evidence, requested an evidentiary hearing, and described as an offer of proof eight additional documents and anticipated testimony by two witnesses.6 The trial court denied Duhon‘s requests.
At the conclusion of the hearing, the trial court granted the Board‘s motion to quash Duhon‘s subpoena and denied Duhon‘s motion to quash the Board‘s subpoena. The trial court also made the following findings and conclusions:
I would find from the statements of [the Board‘s counsel] that this subpoena is for a valid purpose or lawfully authorized purpose, and that is to determine whether or not in the use of INTERRO as a diagnostic device, or method, Dr. Duhon has received or obtained confirmation of that diagnosis by other physicians [sic].
The trial court further found that the information sought was relevant to the inquiry “because if there were going to be an indication of confirmation of the use of INTERRO as a diagnostic tool, it would logically be revealed in the medical records.” The trial court rejected Duhon‘s arguments that the Board‘s subpoena was superfluous or overly burdensome and that the medical records were protected by the physician/patient privilege established by
On appeal, the court of appeals reversed that portion of the trial court‘s order enforcing the Board‘s subpoena and denying Duhon‘s motion to quash said subpoena. The court of appeals initially concluded that the Board has no authority to issue a subpoena
II
The Board argues, contrary to the conclusion reached by the court of appeals, that the Act grants it authority to issue administrative subpoenas at any time. The Board argues alternatively that it has inherent authority to issue such subpoenas. We disagree.
A
In construing statutes courts must give effect to the intent giving rise to the legislation. Shapiro and Meinhold v. Zartman, 823 P.2d 120, 123-24 (Colo. 1992). To carry out that responsibility courts first look to the statutory language itself, giving words and phrases their commonly accepted and understood meaning. Id. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237, 246 (Colo. 1992); Bloomer v. Board of County Comm‘rs, 799 P.2d 942, 944 (Colo. 1990). That is, if courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assembly meant what it clearly said. Griffin v. S.W. Devanney & Co., Inc., 775 P.2d 555, 559 (Colo. 1989); State Bd. of Equalization v. American Airlines, Inc., 773 P.2d 1033, 1040 (Colo. 1989). When the General Assembly adopts a comprehensive regulatory program, the legislation should be construed as a whole when possible, giving effect to all of its parts in the context of the entire scheme. Martinez v. Continental Enters., 730 P.2d 308, 315 (Colo. 1986).
B
The court of appeals concluded that
Disciplinary action by board—immunity. ... (4)(a) Complaints in writing relating to the conduct of any physician licensed or authorized to practice medicine in this state may be made by any person or may be initiated by the board on its own motion. The physician complained of shall be given notice by certified mail of the nature of all matters complained of and shall be given twenty days to make explanation or answer thereto. Upon receipt of the physician‘s answer or at the conclusion of twenty days if no answer has been received, the matter shall be referred to one panel acting as an inquiry panel for that particular case, referred to in this subsection (4) as the “inquiry panel“, for investigation. The investigation may be made by one or more members of the inquiry panel, by one or more physicians who are not members of the board, by a member of the staff of the board, or by a professional investigator, as the inquiry panel directs, and it shall be entirely informal.
These provisions reflect a legislative policy to require a delay of the initiation of investigative proceedings of alleged complaints of professional misconduct. That policy is also reflected by the provisions of
[T]he [B]oard‘s authority under
§ 12-36-104(1)(b) to issue a subpoena “in connection with any investigation” has specific reference only to that investigation described in§ 12-36-118(4) . Hence, whatever authority the [B]oard may possess to conduct some investigation before initiating a complaint in writing, it is only after such a complaint is made, the subject of that complaint has been given notice of all matters complained of, and the complaint has been referred to an inquiry panel for investigation that the inquiry panel has the authority to issue an investigative subpoena.
C
Injunctive proceedings. (1) The board may, in the name of the people of the state of Colorado, through the attorney general of the state of Colorado, apply for an injunction in any court of competent jurisdiction to enjoin any person from committing any act prohibited by the provisions of article 13, 30, 34, 36, 39, or 41 of this title.
(2) If it is established that the defendant has been or is committing an act prohibited by said articles, the court shall enter a decree perpetually enjoining said defendant from further committing said act.
....
The Board notes that
The Board has no inherent authority to issue administrative subpoenas. Such authority is created by the General Assembly. Conversely, the statutory limitations of the Board‘s authority to issue administrative subpoenas do not restrict the Board‘s general investigative authority. The remedies established by the General Assembly in
III
The Board asserts that the court of appeals improperly applied our decision in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980), in reversing the trial court‘s order. We disagree.
In Charnes, we held that an administrative subpoena issued by the executive director of the Colorado Department of Revenue constituted a reasonable seizure if the investigation was for a lawful purpose, the requested information was relevant to the inquiry, and the subpoena was sufficiently specific to obtain documents which are adequate but not excessive to the inquiry. Id. at 101, 612 P.2d at 1122 (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946)). The court of appeals expressly recognized the Charnes formula and then made the following pertinent observations:
[W]ithout a copy of the written complaint made by the board and a clear exposition of the act or omission which, if found to have occurred, would constitute unprofessional conduct, it is impossible to determine whether the purpose to be served by the subpoena is one that may properly be pursued by it.
Board of Medical Exam‘rs v. Duhon, 867 P.2d 20, 25 (Colo. App. 1993). The court of appeals thus properly recognized that until the Board indicates with particularity what it deems to be appropriate for investigation and notifies the licensee of such determination, a court in all probability will be unable to evaluate the reasonableness of an administrative subpoena.9
IV
For the foregoing reasons, the judgment of the court of appeals is affirmed. The case is returned to that court with directions to remand the case to the trial court for further proceedings with respect to the Board‘s motion to enforce its subpoena and Duhon‘s motion to quash the subpoena consistent with the views set forth in this opinion.
MULLARKEY, J., dissents, and ROVIRA, C.J., and VOLLACK, J., join in the dissent.
Justice MULLARKEY dissenting:
I respectfully dissent from the majority opinion refusing to enforce the Board of Medical Examiners’ (the Board‘s) administrative subpoena. The subpoena sought records from a physician, S. Crawford Duhon, regarding his use of a device referred to as “INTERRO.” I would find that, based on the documentary evidence in the record, the Board had authority under the statute to issue the subpoena in this case. I also disagree with the majority‘s holding that it is necessary to remand the case to the trial court in order to determine whether the subpoena constituted a reasonable seizure under our decision in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980). I would find that the subpoena is enforceable against Duhon.
Under
Once a written complaint has been filed, the Board is required to notify the physician of the complaint by certified mail and then to assign the case to an inquiry panel for “investigation” after the physician has had twenty days to respond.
subpoena power. However,
Because I would find that the Board had statutory authority to issue the subpoena under the facts of this case, I would decline to address whether the Board has either statutory or inherent authority to issue subpoenas at any other time and I express no opinion concerning the majority‘s identification of other circumstances in which the Board is authorized to issue subpoenas.
In addition to asserting that the Board‘s subpoena was unauthorized under
An appellate court is as competent as a trial court to review documentary evidence and to apply the law thereto. Colorado River Water Conservation Dist. v. Municipal Subdistrict, 198 Colo. 352, 355, 610 P.2d 81, 83 (1979). In this case, the notice sent to Duhon is the written complaint and both the subpoena issued by the Board and the complaint received by Duhon are part of the record.12 This documentary evidence clearly demonstrates that the subpoena met the Charnes requirements.
In Charnes, we adopted the test set out by the Supreme Court to determine when an administrative agency‘s subpoena of records is a reasonable seizure for Fourth Amendment purposes. We held that:
an administrative agency‘s seizure of records is a reasonable seizure if (1) the investigation is for a lawfully authorized purpose; (2) the information sought is relevant to the inquiry; and (3) the subpoena is sufficiently specific to obtain documents which are adequate but not excessive for the inquiry.
612 P.2d 1117, 1122 (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946)).
Under
An act or omission constituting grossly negligent medical practice or two or more acts or omissions which fail to meet generally accepted standards of medical practice, whether the two or more acts or omissions occur during a single treatment
of one patient, during the course of treatment of one patient, or during the treatment of more than one patient.
Furthermore, the information requested by the subpoena was relevant to this inquiry. The subpoena requested:
The complete office records for all patients in which the INTERRO device was used as a diagnostic tool by Dr. S. Crawford Duhon, MD, for the time frame of January 1, 1991 through November 13, 1991.
Patient files are relevant to determining whether a physician‘s methods meet generally accepted standards because they document those procedures and methods utilized by the physician.
I would find that the subpoena also was sufficiently specific to meet the final prong of the test. In order to assess the use of the INTERRO device by Duhon, the Board needed documentation concerning its use. The subpoena did not ask for all of Duhon‘s files, nor did it ask for the files of all patients for which he had utilized the device. Instead, it targeted only documents concerning recent use of the INTERRO device. It is difficult to imagine how the documents requested in the subpoena could be more closely tailored to the scope of the inquiry.
Under this analysis, I would reverse the judgment of the court of appeals and affirm the district court order enforcing the Board‘s subpoena.
ROVIRA, C.J., and VOLLACK, J., join in the dissent.