Part 1: Colorado Supreme Court Examines the Scope of Physician-Patient Privilege

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The availability of physician-patient privilege can sometimes make or break a case in Colorado state court. And as the issue comes up in litigation, the contours of the privilege are constantly being developed and tested. Recently, the Colorado Supreme Court issued a duo of opinions exploring these boundaries. After providing a brief primer on the privilege, these posts explore these two new opinions and outline how these cases may impact your litigation practice. Part one of this post specifically focuses on Bailey v. Hermacinski, a case about the consultation exception to the physician-patient privilege and provides some pointers for practice in light of that case.

Physician-Patient Privilege: A Primer

In Colorado courts, doctor-patient privilege is formally recognized in the Colorado Revised Statutes.¹ Under that law, “[a] physician, surgeon, or registered professional nurse” cannot be compelled to testify about information acquired from a patient without that patient’s consent.² In other words, a patient can prevent disclosure of information a doctor collected during the course of providing medical services to the patient. Practically, this prevents medical providers from producing records, or from being interviewed, deposed, or subpoenaed to testify at a hearing or trial, over a patient’s objection. 

This privilege, however, is not absolute. Because the privilege potentially withholds relevant information in a case, courts construe it narrowly. In addition to this construction, there are several exceptions in the statute. For example, if a patient sues his doctor, the patient can’t prevent the doctor from testifying about his or her care of the patient if that is relevant to the claim. There are also exceptions that have developed over time through case law. For example, if a plaintiff puts his or her medical condition at issue in the lawsuit, doctor-patient privilege may be waived.³

Whether the physician-patient privilege applies is a question that often comes up in litigation. Recently, the Colorado Supreme Court examined the privilege in two original proceedings: Bailey v. Hermacinski⁴ and In re Gadeco.⁵

Bailey v. Hermacinski: The Consultation Exception to the Physician-Patient Privilege 

In this case, a woman had surgery and thereafter started having additional medical problems. She was hospitalized several times at a number of different facilities to correct the issues. The patient and her husband later sued the doctors who performed the original surgery, as well as the hospital where it was performed, alleging that their negligence led to the later additional hospitalizations and expenses. 

During the litigation, the defense requested ex parte interviews with some of the doctors who treated the woman during her later hospitalizations, who were not parties to the lawsuit. The plaintiffs objected to this request, citing physician-patient privilege, and arguing that the later treatment of the woman was not relevant to the issue of whether the original doctors were negligent. 

The trial court granted the defense’s request to conduct the ex parte interviews of the non-party medical providers. The trial court decided that the non-party medical providers were simply continuing the care and treating the conditions that arose out of the original acts of alleged negligence. Because they were engaged in a “unified course of treatment,” the trial court concluded that the non-party medical providers were “in consultation with” the defendants. Under Colorado law, physician-patient privilege does not apply to a doctor who “was in consultation with a physician, surgeon, or registered professional nurse being sued as provided [by statute] on the case out of which said suit arises.”⁶ Citing this statute, the trial court concluded the privilege was removed. The plaintiffs immediately appealed the ruling to the Colorado Supreme Court, which issued a rule to show cause.  

In a unanimous decision (the newest Justice, Justice Melissa Hart did not participate), the Supreme Court disagreed with the trial court’s ruling and made the rule to show cause absolute. The Court concluded that the “in consultation” statute did not apply. But the news was not all good for the plaintiffs. The Court remanded the case back to the trial court to determine if the plaintiffs had impliedly waived the privilege for the non-party doctors. 

The Court’s decision primarily relied on existing precedent: Reutter v. Weber.⁷ In Reutter, the Court had previously considered the meaning of the phrase “in consultation with” in the statute. There, the Court “held that a non-party medical provider is in consultation with the defendant medical provider for the purposes [of the statute] if the party and non-party providers ‘collectively and collaboratively assess and act for a patient by providing a unified course of medical treatment.’”⁸ 

Turning the facts in this case, the Court remarked that the trial court focused on the wrong inquiry when it held the consultation exception applied because all the providers engaged in a unified course of treatment. The proper inquiry, the Court explained, was whether the providers engaged in collective or collaborative care. Here, that did not occur; indeed, as the Court pointed out, there appeared to be no communication between the defendants and the non-party medical providers. Because of these facts, the privilege was still intact, and the Court concluded that the trial court abused its discretion when it ruled the defense could conduct ex parte interviews with the non-party medical providers over the plaintiffs’ objection.

The Court’s ultimate ruling rested on a straightforward application of the Reutter case. But the Court also provided some additional guidance on implied waiver by clarifying its decision in Ortega.⁹  The Court noted that notwithstanding the Ortega decision and a comment made in footnote 1, “a plaintiff may still impliedly waive the physician-patient privilege as it applies to information held by a non-party medical provider.”¹⁰

Because the trial court’s ruling suggested that the plaintiffs may have impliedly waived the privilege with regards to the non-party providers, but ultimately rested its decision on other grounds, the Supreme Court remanded for further consideration. Notably, the Court reiterated that implied waiver will vary on a case-by-case basis, and that even when it applies, it does not amount to a general disclosure of the patient’s entire relationship with the physician in question, but only covers the specific information that forms the basis for the claim at issue. 

Practice Pointers

The Bailey case is your new go-to case for case law and explanation about the consultation exception to the physician-patient privilege in Colorado. The case provides great overviews of the law and clarification of previous opinions on the subject. A key takeaway for practice is to remember that the consultation exception does not apply to all of a patient’s future medical providers, even if the care is related to the injury at issue in the lawsuit. The key is whether the non-party provider engaged in collaborative care with the physician being sued. 

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¹   § 13-90-107(1)(d), C.R.S. 2018. 

 ²   See id.

 ³   See, e.g., Hartmann v. Nordin, 147 P.3d 43, 50 (Colo. 2006). 

⁴   2018 CO 14. 

⁵   2018 CO 22. 

⁶   § 13-90-107(d)(II), C.R.S. 2018.

⁷  179 P.3d 977 (Colo. 2007).  

⁸   Bailey, ¶ 13. 

⁹   Ortega v. Colo. Permanente Group, P.C., 265 P.3d 444 (Colo. 2011).

¹⁰  Bailey, ¶ 17.