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“Letters of concern” cannot be subpoenaed, court rules

Many warning letters sent by the state’s medical board to doctors suspected of violating professional regulations are totally protected from subpoena or use in a civil proceeding or administrative action of a judicial nature, The Supreme Court of Colorado, held June 23, (Colorado Medical Board v. Train).

During the discovery phase of an appeal of her application for a Colorado medical license, license candidate Polly Train requested documents known as “Letters of Concern,” warning letters that the board sends to physicians whose actions concern the board but do not warrant formal discipline proceedings.

Although the board argued that the letters were confidential under “professional review privilege,” which protects the records of peer review committees from disclosure, the ALJ disagreed and ordered it to provide any relevant letters to Train.

The board appealed, but a state district court upheld the disclosure order, ruling that the professional review privilege applied only to civil suits, a category which did not include administrative actions. 

The professional review privilege, from Section 12-36.5-104(10)(a) of Colorado’s Medical Practice Act provides that: “The records of an authorized entity, its professional review committee, and its governing board are not subject to subpoena or discovery and are not admissible in any civil suit.”
The board then appealed to the state supreme court, which has now reversed the lower decisions. The court held that the professional review privilege both protects records of professional review committees from all subpoena or discovery and prevents the admissibility of those records in all civil suits, including administrative proceedings of a judicial nature.

This protection from subpoena or discovery, Justice Gregory Hobbs, JR. wrote, “promotes the General Assembly’s intent to empower the board’s issuance of confidential Letters of Concern to individual doctors as a corrective and precautionary device to protect the public from improper medical practice.”

“It makes little sense,” Hobbs added, “to construe the statute’s protection of the Board’s records against use in court adjudicatory proceedings, but to allow their use in administrative adjudicatory proceedings.”