Appellate Victory In Case Of First Impression

In a case of first impression under the 36-year old state Professional Review Act governing physicians, Jones & Keller senior litigator Tom McMahon has won a precedent-establishing victory in the Colorado appellate courts that will benefit doctors throughout Colorado. The Act provides that, as a general rule, peer review materials are privileged and not subject to subpoena or discovery in civil lawsuits. However, it makes an exception for a physician in the course of an appeal during a peer review proceeding involving the physician, and again in a subsequent judicial review suit brought by the physician once the peer review proceeding is complete.

In the case handled by Tom, he subpoenaed peer review records on behalf of his physician client at both stages. During the peer review appeal, the hospital refused to produce the subpoenaed records. Then, on judicial review, the hospital persuaded the lower court to quash the second subpoena. The Court of Appeals held that the physician had a clear statutory right to the materials in the course of his peer review appeal, and reversed the lower court on that basis alone. Accordingly, it did not even have to address the lower court’s action in failing to uphold the second subpoena – although the result would undoubtedly have been the same. Crow v. Penrose-St. Francis Healthcare Sys., 2012 WL 867341 (Colo. App. 2012). The Colorado Supreme Court then refused to accept the hospital’s attempt at a further appeal.

This is the latest victory Tom has obtained in the Colorado appellate courts on behalf of the same physician client against the same hospital. In 2010 the appellate court first reversed the lower court, upholding the physician’s right to sue the hospital for damages over the faulty peer review process as soon as that administrative proceeding was completed. Crow v. Penrose-St. Francis Healthcare Sys., 2010 WL 3169839 (Colo. App. 2010).

Together, these appellate victories do much to enable Colorado physicians to protect themselves when they become involved in peer review proceedings with hospitals.