In a Colorado medical malpractice case in which the issue was the scope of the physician–patient privilege, the Colorado Supreme Court held in its opinion filed on March 5, 2018 that the plaintiff’s non-party medical providers were not “in consultation with” the defendants such that the typically-privileged information held by those non-party medical providers was no longer protected by the physician–patient privilege. Therefore, the trial court abused its discretion when it granted the defendants’ request to hold ex parte interviews with those non-party medical providers on consultation grounds. However, the Colorado Supreme Court remanded the case to the trial court for consideration of whether the plaintiff impliedly waived the protection of the physician–patient privilege such that ex parte interviews may still be permitted.
Section 13-90-107(1)(d), C.R.S. (2017), prohibits certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. However, Section 13-90-107(1)(d)(I) states that when a patient sues their medical provider, information “arising out of or connected with” that provider’s treatment of the patient is not protected by the physician–patient privilege. Furthermore, Section 13-90-107(1)(d)(II) deems information held by a non-party medical provider who was “in consultation with” a defendant outside the protection of the physician–patient privilege.
“In Consultation With”
In the case the Colorado Supreme Court was deciding, the Colorado medical malpractice defendants sought ex parte interviews with a number of the plaintiff’s non-party medical providers. Because the requested ex parte interviews does not implicate the physician–patient relationship between the plaintiff and the defendants, Section 107(1)(d)(I) is inapplicable. The issue, therefore, is whether the non-party medical providers were “in consultation with” the defendants such that Section 107(1)(d)(II) removed that typically privileged information from the protection of the physician–patient privilege.
The Colorado Supreme Court stated that the meaning of the phrase “in consultation with” in Section 107(1)(d)(II) recognizes that medicine is not practiced alone but is, in many cases, practiced in a collaborative fashion with other practitioners. The Colorado Supreme Court stated that a non-party medical provider is in consultation with the defendant medical provider for the purposes of Section 107(1)(d)(II) if the party and non-party providers collectively and collaboratively assess and act for a patient by providing a unified course of medical treatment.
Applying this standard, the Colorado Supreme Court held that the non-party medical providers in the present Colorado medical malpractice case provided no collective or collaborative care with the defendants: there was no exchange of medical records; there was no discussion of diagnoses or treatment options; and, there apparently was no communication between the defendant and non-party medical providers. The Colorado Supreme Court held that on these facts, it could not conclude that the non-party medical providers acted in such a collective and collaborative way as to be considered in consultation with the defendant medical providers and, as a result, the plaintiff’s communications with the non-party medical providers are privileged unless the plaintiff consented to their disclosure.
Although the Colorado Supreme Court held that Section 107(1)(d)(II) is inapplicable in this case, the plaintiff may still have impliedly waived the protection of the physician–patient privilege as it pertains to information relevant to the plaintiff’s claimed medical malpractice.
The Colorado Supreme Court stated that the implied waiver doctrine is rooted in the notion that a party who puts their medical or physical condition at issue in a lawsuit cannot then shield the information related to that condition from discovery. Specifically, a plaintiff in a personal injury case impliedly waives the physician–patient privilege with respect to matters known to the physician that are relevant in determining the cause and extent of injuries which form the basis for a claim for relief. Because an implied waiver determination necessarily depends on the nature and extent of a particular and unique mental or physical condition, such a determination will vary on a case-by-case basis. Importantly, an implied waiver covers only the extent and context of the condition and the subsequent damages that form the basis of the claim for relief; it does not amount to a general disclosure of the patient’s entire relationship with the physician in question.
Because it is unclear from the record whether the plaintiff impliedly waived her physician–patient privilege with regard to the non-party medical providers in this case, the Colorado Supreme Court remanded the case to the trial court for a determination of that issue. On remand, if the trial court finds that the plaintiff did impliedly waive the physician–patient privilege, the trial court should, prior to granting the defendants’ request for ex parte interviews, determine whether it needs to institute any measures to (1) protect against inadvertent discovery of residually privileged information held by the non-party medical treaters, and (2) ensure that the non-party medical providers are not subject to undue influence in the course of those ex parte interviews.
Source In Re Bailey v. Hermacinski, 2018 CO 14.
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