CO Code § 12-240-105 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 240 - Medical Practice|§ 12-240-105. Colorado Medical Board - Immunity - Subject to Review - Repeal of Article

     There is hereby created the Colorado medical board, referred to in this article 240 as the “board”. The board shall consist of seventeen members appointed by the governor and possessing the qualifications specified in this article 240 and as follows:   Eleven physician members;    Two members licensed under this article 240 as physician assistants; and    Four members from the public at large who have no financial or professional association with the medical profession.       The terms of the members of the board are four years. For the two physician and one physician assistant appointees added to the board during the calendar year beginning January 1, 2010, the term for one of the physician member appointees expires four years after the appointment; the term for the other physician member appointee expires three years after the appointment; and the term for the physician assistant appointee expires two years after the appointment. The term of the physician assistant appointee added to the board during the calendar year beginning January 1, 2019, expires two years after the appointment. Thereafter, the terms of the members of the board are four years.       The board must include at all times eight members having the degree of doctor of medicine, three members having the degree of doctor of osteopathy, and two physician assistants, all of whom have been licensed in good standing and actively engaged in the practice of their professions in this state for at least three years next preceding their appointments, and four members of the public at large.    If a vacancy in the membership of the board occurs for any cause other than expiration of a term, the governor shall appoint a successor to fill the unexpired portion of the term of the member whose office has been vacated and shall appoint the new member in the same manner as members for a full term. Members of the board shall remain in office until their successors have been appointed. A member of the board may be removed by the governor for continued neglect of duty, incompetence, or unprofessional or dishonorable conduct.    The board shall elect biennially from its members a president and a vice-president. Meetings of the board or any panel established pursuant to this article 240 shall be held as scheduled by the board in the state of Colorado. Except as provided in section 12-240-125 (6), a majority of the board shall constitute a quorum for the transaction of all business. All meetings of the board shall be deemed to have been duly called and regularly held, and all decisions, resolutions, and proceedings of the board shall be deemed to have been duly authorized, unless the contrary be proved.    This article 240 is repealed, effective September 1, 2026. Before the repeal, this article 240, including an analysis of physician responsibilities related to recommendations for medical marijuana and the provisions of section 25-1.5-106, are scheduled for review in accordance with section 24-34-104.     History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 1172, § 1, effective October 1; IP(1)(a), (1)(a)(II), (1)(b), and (2) amended,(HB 19-1095), ch. 411, p. 3622, § 7, effective October 1; (5) amended,(SB 19-193), ch. 406, p. 3588, § 10, effective October 1.    Editor's note:    This section is similar to former § 12-36-103 as it existed prior to 2019.      Before its relocation in 2019, this section was amended in SB 19-193. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from July 1, 2019, to October 1, 2019, see SB 19-193, chapter 406, Session Laws of Colorado 2019. (2) (a) Before its relocation in 2019, this section was amended in SB 19-193. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from July 1, 2019, to October 1, 2019, see SB 19-193, chapter 406, Session Laws of Colorado 2019.    Before its relocation in 2019, this section was amended in HB 19-1095. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from August 2, 2019, to October 1, 2019, see HB 19-1095, chapter 411, Session Laws of Colorado 2019.        ANNOTATION   Law reviews. For note, “Licensing of Occupations and Professions in Colorado”, see 35 Dicta 235 (1958).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   A point was made that this section was unconstitutional, in that it provides for the appointment of the state board of medical examiners by the governor, whereas, under the provision of § 6 of art. IV, Colo. Const., it is contended the governor should “nominate, and by and with the consent of the senate appoint”. People v. Osborne, 7 Colo. 605 , 4 P. 1074 (1884).   The constitutional provision was construed as not applicable to offices created by statute to be filled as therein otherwise provided. Brown v. People, 11 Colo. 109 , 17 P. 104 (1888).   The general assembly under the police power of the state could create the state board of medical examiners and fix its powers and duties. Smith v. People, 51 Colo. 270 , 117 P. 612, 36 L.R.A. (n.s.) 158 (1911).   The police power of the state relates to the preservation and promotion of the health, safety, and morals of the people. Smith v. People, 51 Colo. 270 , 117 P. 612, 36 L.R.A. (n.s.) 158 (1911).   The law is settled that the general assembly may control the practice of medicine. Smith v. People, 51 Colo. 270 , 117 P. 612, 36 L.R.A. (n.s.) 158 (1911).   Such enactments emanate from that branch of the police power of the state having to do with the protection of the public health. Smith v. People, 51 Colo. 270 , 117 P. 612, 36 L.R.A. (n.s.) 158 (1911).   It was held, independent of this, that the office being de jure, one appointed to it was de facto an officer, notwithstanding the mode of appointment may have been unconstitutional. Brown v. People, 11 Colo. 109 , 17 P. 104 (1888).   Immunity of members. Members who performed statutory functions, both adjudicatory and prosecutorial in nature, are entitled to the common law absolute immunity from damages liability under 42 U.S.C. § 1983 which has historically been afforded judges, prosecutors, and other officials involved in the judicial process. Horwitz v. Bd. of Medical Examiners, 822 F.2d 1508 (10th Cir. 1987), cert. denied, 484 U.S. 964, 108 S. Ct. 453, 98 L. Ed. 2d 394 (1987).   Majority of board not needed in disciplinary actions. The bifurcation of disciplinary proceedings, by § 12-36-118 , into initial investigations by one panel and, upon recommendation, formal hearings by another panel indicates the general assembly's intent to remove the requirement of four votes, formerly in subsection (4), in order to revoke a license after a formal disciplinary hearing. Colo. State Bd. of Medical Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979).   Applied in Coe v. United States Dist. Court, 676 F.2d 411 (10th Cir. 1982).