Gennaro DeSantis, individually and as representative of the Estate of Virginia DeSantis; Pamela Buckner; Terry Elliott; and Cynthia Naeb v. John S. Simon, M.D. and Michael Fenoglio, M.D.

Summary

The Colorado Supreme Court held that the Medical Practice Act provision exempting Board of Medical Examiners proceedings from public inspection did not create a blanket privilege against civil discovery. It also held that the Peer Review Act privilege did not apply because the Board was not a peer review committee. The trial court abused its discretion by ordering production of all documents without conducting an in camera review and Martinelli balancing analysis, so the order was reversed and the matter remanded.

Holdings

1. Section 12-36.5-104(10) does not apply because the Colorado Board of Medical Examiners is not a peer review committee; the statute protects records of professional review committees, governing boards, and committees on anticompetitive conduct, not the BME itself.
2. Section 12-36-118(10) does not create a privilege against civil discovery of BME investigatory records; it addresses only public inspection of BME proceedings, minutes, and records.
3. The trial court abused its discretion by ordering production of all documents without reviewing them in camera and conducting a Martinelli analysis.

Questions Presented

1. Whether section 12-36.5-104(10), C.R.S., of the Peer Review Act protects documents exchanged between a physician and the Colorado Board of Medical Examiners from civil discovery.
2. Whether section 12-36-118(10), C.R.S., of the Medical Practice Act creates a privilege against civil discovery of BME investigatory records.
3. Whether the trial court abused its discretion by ordering production of all documents listed in Simon's privilege log without conducting an in camera review and Martinelli balancing analysis.

Disposition

reversed_and_remanded