In re Bailey v. Hermacinski

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 March 5, 2018
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9 2018 CO 140
1 No. 17SA20, In Re Bailey v. Hermacinski—Physician–Patient Privilege—Implied
2 Waiver.
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4 In this original proceeding, the supreme court considers the scope of the
5 physician–patient privilege in a medical-malpractice action. Contrary to the conclusion
6 of the trial court, the supreme court holds that the Plaintiffs’ non-party medical
7 providers were not in consultation with Defendants such that the typically-privileged
8 information held by those non-party medical providers was no longer protected by the
9 physician–patient privilege. Therefore, the trial court abused its discretion when it
0 granted Defendants’ request to hold ex parte interviews with those non-party medical
1 providers on consultation grounds. However, the supreme court remands the case to
2 the trial court for consideration of whether the Plaintiffs impliedly waived the
3 protection of the physician–patient privilege such that ex parte interviews may still be
4 permitted.
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3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203
5 2018 CO 146 Supreme Court Case No. 17SA20
7 Original Proceeding Pursuant to C.A.R. 21
8 Routt County District Court Case No. 16CV30089
9 Honorable Thomas W. Ossola, Judge
0 In Re
1 Plaintiffs:
2 Kelley Bailey and Michael Bailey,
3 v.
4 Defendants:
5 Mark Hermacinski, M.D.; Leslie Ahlmeyer, M.D.; Mary Bowman, M.D.; and Yampa Valley
6 Medical Center, a non-profit corporation.
7 Rule Made Absolute
8 en banc
9 March 5, 2018
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1 Attorneys for Plaintiffs:
2 Schoenwald & Thompson LLC
3 Julia Thompson
4 Denver, Colorado
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6 Attorneys for Defendants:
7 Jaudon & Avery LLP
8 David H. Yun
9 Jared R. Ellis
0 Denver, Colorado
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2 Attorneys for Amicus Curiae Colorado Defense Lawyers Association:
3 Ruebel & Quillen, LLC
4 Jeffrey Clay Ruebel
5 Casey A. Quillen
6 Westminster, Colorado
1 Attorneys for Amicus Curiae Colorado Medical Society:
2 Conklin Cardone & Rutberg, PC
3 John L. Conklin
4 Amy K. Cardone
5 Denver, Colorado
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7 Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
8 Cross & Bennett, L.L.C.
9 Joseph F. Bennett
0 Colorado Springs, Colorado
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2 Attorneys for Amicus Curiae COPIC Insurance Company:
3 Kittredge LLC
4 Daniel D. Domenico
5 Denver, Colorado
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7 Attorneys for Amicus Curiae Regents of the University of Colorado:
8 Office of University Counsel
9 Patrick T. O’Rourke
0 Denver, Colorado
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1 CHIEF JUSTICE RICE delivered the Opinion of the Court.
2 JUSTICE HART does not participate.
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¶1 In this original proceeding, we consider the scope of the physician–patient
privilege in a medical-malpractice action. 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. That
prohibition, however, is not unlimited. Section 13-90-107(1)(d)(I), for instance, 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. And section 13-90-107(1)(d)(II) deems information held by
a non-party medical provider who was “in consultation with” a defendant as similarly
outside the protection of the physician–patient privilege.
¶2 In this case, Defendants sought ex parte interviews with a number of non-party
medical providers. Thus, this dispute, as presented to us, does not implicate the
physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants,
meaning section 107(1)(d)(I) is inapplicable. Instead, the issue here is whether the
non-party medical providers were “in consultation with” Defendants such that
section 107(1)(d)(II) removed that typically privileged information from the protection
of the physician–patient privilege. We hold that the non-party medical providers were
not in consultation with Defendants for the purposes of section 107(1)(d)(II). However,
we remand this case to the trial court for consideration of whether Plaintiffs Kelley and
Michael Bailey (“the Baileys”) impliedly waived the physician–patient privilege for the
non-party medical providers. On remand, if the trial court concludes that the Baileys
did waive that privilege, it should reconsider whether there is any risk that (1) ex parte
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interviews with the non-party medical providers would inadvertently reveal residually
privileged information, or (2) Defendants would exert undue influence on the
non-party medical providers in the course of any ex parte interviews.
I. Facts and Procedural History
¶3 In March 2014, Bailey underwent a hysterectomy performed by Doctor Ellis. In
July 2014, Bailey visited Defendant Yampa Valley Medical Center (“Yampa”) reporting
abdominal pain. A CT scan revealed accumulated fluid that medical professionals at
Yampa believed to be related to the March 2014 surgery. Bailey then underwent
surgery performed by Defendants Doctor Ahlmeyer and Doctor Hermacinski. The
Yampa doctors removed Bailey’s appendix, several adhesions from the hysterectomy,
and her right ovary due to a ruptured ovarian cyst.
¶4 Two days after Bailey was discharged from Yampa, Doctor Ellis referred her to
Craig Memorial Hospital (“Craig”) after she reported abdominal pain, nausea,
vomiting, and chills. Doctors at Craig determined that Bailey was suffering from a
perforated bowel. Bailey then underwent emergency surgery at Craig to repair the
perforation. Bailey remained there for nearly a month and went through a number of
abdominal washouts as a result of the perforation, and she has received repeated
follow-up care from a number of doctors at Craig (“the Craig treaters”). About a month
after her release from Craig, Bailey went to a third hospital, St. Mary’s Medical Center,
due to significant nausea and vomiting. There, she was treated by two doctors (“the St.
Mary’s treaters”).
4
¶5 In 2016, the Baileys sued Doctor Ahlmeyer, Doctor Hermacinski, Doctor
Bowman, and Yampa (“Defendants”) alleging that their negligence led to significant
harm and subsequent medical expenses.
¶6 During discovery, Yampa produced hundreds of pages of Bailey’s medical
records covering her July 2014 treatment. For their part, as relevant here, the Baileys
produced portions of Bailey’s medical records from the care she received at Craig
Memorial Hospital, St. Mary’s Medical Center, and the offices of two other doctors.
However, the Baileys withheld portions of those records, claiming that the information
withheld was not relevant to the issues in this lawsuit and therefore remained protected
by the physician–patient privilege. The Baileys submitted privilege logs indicating
what information they withheld. Defendants did not object to the privilege logs before
the trial court; however, they requested ex parte interviews with a number of medical
providers who treated Bailey, including four Yampa doctors, the Craig treaters, and the
St. Mary’s treaters. The Baileys did not object to Defendants’ request to interview the
Yampa doctors, except that any interview with Doctor Thompson be limited to certain
topics. However, the Baileys did object to Defendants’ request to conduct ex parte
interviews of the Craig and St. Mary’s treaters.
¶7 In a two-page order, the trial court approved Defendants’ request for ex parte
interviews with the Craig and St. Mary’s treaters, finding that those treaters were
“engaged in a unified course of treatment in that they were only treating [Bailey] for
complaints and conditions arising out of the original alleged acts of negligence.” As a
result, the trial court continued, the Craig and St. Mary’s treaters were “in consultation
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with” Defendants “sufficient to give rise to a waiver of the physician–patient privilege.”
The court also concluded that there was “little to no risk” of the existence of residually
privileged information being disclosed as a result of the ex parte interviews. Finally,
the court stated that it was “unconvinced that there is a significant risk of undue
influence on the subsequent treating physicians by ex parte interviews with defense
counsel.” The Baileys then petitioned this court under C.A.R. 21 asking us to vacate the
trial court’s order granting the requested ex parte interviews with the Craig and St.
Mary’s treaters.1 We issued a rule to show cause. We now make the rule absolute and
remand for further proceedings consistent with this opinion.
II. Standard of Review
¶8 Relief from a trial court’s discovery order under C.A.R. 21 is appropriate only
where “the normal appellate process would prove inadequate.” In Re
P.W. v. Children’s Hosp., 2016 CO 6, ¶ 12, 364 P.3d 891, 895 (quoting Warden v.
Exempla, Inc., 2012 CO 74, ¶ 16, 291 P.3d 30, 34). “When a trial court’s order involves
records which a party claims are protected by a statutory privilege, as here, an
immediate review is appropriate because the damage that could result from disclosure
would occur regardless of the ultimate outcome on appeal from a final judgment.”
Ortega v. Colorado Permanente Group, P.C., 265 P.3d 444, 447 (Colo. 2011) (citing Clark
1As stated above, Defendants did not object before the trial court to the Baileys’ use of
privilege logs to protect the alleged residually privileged information held by the Craig
and St. Mary’s treaters, nor did the trial court make any ruling regarding the sufficiency
or deficiency of those privilege logs. Therefore, the only issue before us is the validity
of the trial court’s order granting Defendants’ request for ex parte interviews with the
Craig and St. Mary’s treaters.
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v. Dist. Court, 668 P.2d 3, 7 (Colo. 1983)). Therefore, we now invoke our original
jurisdiction under C.A.R. 21 to review the trial court’s order to protect from the possible
irreparable harm that would occur from an unwarranted disclosure of Bailey’s medical
information. In reviewing a discovery ruling under C.A.R. 21, we review a trial court’s
decision for an abuse of discretion. Id. (citing Cardenas v. Jerath, 180 P.3d 415, 420
(Colo. 2008)).
III. Analysis
¶9 C.R.C.P. 26 governs the general rules of discovery in a civil proceeding. The
rules outlined in C.R.C.P. 26 are intended to eliminate surprise at trial, enable the
parties to discover relevant evidence, and promote the settlement of cases in an efficient
manner. Cardenas, 180 P.3d at 420. C.R.C.P. 26(b)(1) establishes a broad scope for
discovery, allowing discovery of “any matter, not privileged, that is relevant to the
claim or defense of any party and proportional to the needs of the case.” In this case,
we are required to consider the primary narrowing element of that rule: privileged
matter.
¶10 In a brief order, the trial court concluded that the Baileys could not assert the
physician–patient privilege with regard to the non-party Craig and St. Mary’s treaters
because those treaters were “in consultation with” Defendants such that the privilege
was removed under section 107(1)(d)(II).2 We disagree. Relying on our decision in
Reutter v. Weber, 179 P.3d 977 (Colo. 2007), we hold that section 107(1)(d)(II) did not
2Section 13-90-107(1)(d)(I) is clearly not applicable to the Craig and St. Mary’s treaters
as none of those medical providers are defendants in this matter.
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remove Bailey’s communications with the Craig and St. Mary’s treaters from the
protection of the physician–patient privilege. However, it is possible that the Baileys
impliedly waived their claim of physician–patient privilege under the implied waiver
doctrine. Accordingly, we vacate the trial court’s order allowing ex parte interviews
with the Craig and St. Mary’s treaters, and we remand this matter to the trial court to
consider whether the Baileys impliedly waived the physician–patient privilege for those
treaters. On remand, if the trial court concludes that the Baileys did impliedly waive
their physician–patient privilege with regard to the Craig and St. Mary’s treaters and is
still inclined to permit ex parte interviews of those treaters, the trial court should
reevaluate whether it needs to take any measures to (1) protect residually privileged
information held by those treaters and (2) ensure that Defendants do not exert undue
influence over those treaters during the ex parte interviews.
A. The Consultation Exception to the Physician–Patient
Privilege
¶11 In granting Defendants’ request to conduct ex parte interviews with the Craig
and St. Mary’s treaters, the trial court concluded that those treaters were “in
consultation with” Defendants because the Craig and St. Mary’s treaters were engaged
in a “uniform course of treatment” with Defendants.3 If the Craig and St. Mary’s
treaters were in consultation with Defendants, then, under section 107(1)(d)(II), Bailey’s
communications with them would not be protected by the physician–patient privilege.
3 The trial court order seems to straddle the divide between founding its conclusion on
the statutory exception to the physician–patient privilege in section 107(1)(d)(II) and the
implied waiver doctrine. However, we view the order as an application of section
107(1)(d)(II), not the implied waiver doctrine.
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We addressed this precise statutory provision in Reutter, 179 P.3d at 978–79, which the
Baileys and various amici curiae now urge us to rework. We decline that invitation and
instead conclude that, under the framework established in Reutter, the Craig and St.
Mary’s treaters were not in consultation with Defendants for the purposes of
section 107(1)(d)(II). As a result, all of Bailey’s communications with those non-party
medical providers are privileged, unless Bailey consented to their disclosure.
¶12 The proponent of a claim of privilege bears the burden of establishing that the
privilege applies. Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005). Consequently,
because section 107(1)(d)(II) excepts normally privileged information from the scope of
the statutory physician–patient privilege, the proponent of a claim of privilege must
establish that the exception itself is inapplicable. Reutter, 179 P.3d at 981.
¶13 In Reutter, we considered the meaning of the phrase “in consultation with” in
section 107(1)(d)(II) for the first time. Id. We rejected the narrow reading proposed by
the plaintiffs in that case, which would have had us read the term to include medical
providers who only offer advice, but not those who both offer advice and treat the
plaintiff–patient. Id. That said, we did not read section 107(1)(d)(II) to be so broad as to
include all future medical providers of a plaintiff. See id. Instead, we determined that
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. Id. (“While one
physician might be the primary medical provider, other medical providers typically
play a role in the patient’s treatment.”). As a result, we held that a non-party medical
provider is in consultation with the defendant medical provider for the purposes of
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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.” Id. Applying that standard, we concluded that the non-party medical
providers were in consultation with the defendant medical providers because of the
particularly integrated care that the plaintiff received from both the defendant and
non-party medical providers. See id. at 981–82. Specifically, we noted that the
non-party medical providers were employed by the same facility as the defendant
medical providers, and that all care was provided over just a few days while the
plaintiff was being treated at that single facility. Id. at 979.
¶14 Here, the trial court concluded that the Craig and St. Mary’s treaters were
engaged in a uniform course of treatment of Bailey along with Defendants—and were
therefore “in consultation with” them—because the Craig and St. Mary’s treaters had
provided treatment only “for complaints and conditions arising out of the original
alleged acts of negligence.” However, that conclusion misstates the inquiry. Instead, as
we outlined in Reutter, a non-party medical provider is in consultation with a
defendant medical provider when they provide care “collectively and collaboratively.”
Id. at 981.
¶15 In this case, the Craig and St. Mary’s treaters provided no collective or
collaborative care with Defendants. There was no exchange of medical records. There
was no discussion of diagnoses or treatment options. In fact, there appears to have been
no communication between the Defendant and non-party medical providers
whatsoever. On these facts, we cannot conclude that the non-party medical providers
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acted in such a collective and collaborative way as to be considered in consultation with
the Defendant medical providers. We hold that the Craig and St. Mary’s treaters were
not in consultation with Defendants and, as a result, Bailey’s communications with the
Craig and St. Mary’s treaters are privileged unless she consented to their disclosure.
Consequently, the trial court abused its discretion when it authorized Defendants to
conduct ex parte interviews with the Craig and St. Mary’s treaters on the grounds that
section 107(1)(d)(II) rendered Bailey’s communications with those treaters outside the
protections of the physician–patient privilege.
B. Implied Waiver
¶16 Although we conclude that the Craig and St. Mary’s treaters were not in
consultation with Defendants, therefore making section 107(1)(d)(II) inapplicable, the
Baileys may still have impliedly waived the protection of the physician–patient
privilege as it pertains to information relevant to the Baileys’ claimed medical
malpractice.
¶17 Before reaching our discussion of implied waiver, however, we briefly clarify our
decision in Ortega. In Ortega, we stated in a footnote that “cases that arise in the
medical malpractice context invoke section 107(1)(d)(I)’s statutory exception to the
physician–patient privilege rather than the implied waiver doctrine.” 265 P.3d at 448
n.1. That statement does not control our decision today. Ortega primarily involved the
application of section 107(1)(d)(I) in the context of a dispute regarding the information
held by a defendant medical provider. 265 P.3d at 446–47. In this case, however, the
dispute arises with regard to non-party medical providers and the relationship those
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non-party medical providers had with Bailey. Therefore, notwithstanding our decision
in Ortega, a plaintiff may still impliedly waive the physician–patient privilege as it
applies to information held by a non-party medical provider.
¶18 More broadly, a patient may consent to the disclosure of information normally
protected by the physician–patient privilege. Clark, 668 P.2d at 8. We have held that
consent may be given explicitly, but also implicitly through an implied waiver of the
privilege. Samms v. Dist. Court, 908 P.2d 520, 524 (Colo. 1995) (citing Clark, 668 P.2d at
10) (“[I]mplied waiver constitutes consent for purposes of section 13-90-107(1)(d).”).
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.” Id. at 525 (citing Clark, 668 P.2d at 10). Because an
implied waiver determination necessarily depends on the nature and extent of a
particular and unique mental or physical condition, we have repeatedly recognized that
such a determination will vary on a case-by-case basis. E.g., id. 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. Alcon, 113
P.3d at 739.
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¶19 As stated previously, the party asserting protection from a privilege bears the
burden of establishing the applicability of that privilege. Id. However, in the implied
waiver context, once the privilege has been established, the party arguing for a finding
of implied waiver must carry the burden of showing that waiver. Id.
¶20 Here, Defendants assert that the trial court’s statement that the non-party
medical providers had “only treat[ed] [Bailey] for complaints and conditions arising out
of the original alleged acts of negligence” amounted to a finding of implied waiver.
However, that statement is couched in the trial court’s conclusion that the Craig and St.
Mary’s treaters were engaged in a “unified course of treatment” with Defendants; thus,
the trial court’s decision rested on section 107(1)(d)(II), not implied waiver. Because it is
unclear from the record before us whether the Baileys impliedly waived their
physician–patient privilege with regard to the Craig and St. Mary’s treaters, we remand
this case to the trial court for a determination of that issue.
¶21 On remand, if the trial court finds that the Baileys did impliedly waive the
physician–patient privilege, the trial court should, prior to granting 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
Craig and St. Mary’s treaters, and (2) ensure that the non-party medical providers are
not subject to undue influence in the course of those ex parte interviews.
IV. Conclusion
¶22 Because the Craig and St. Mary’s treaters were not in consultation with
Defendants, the trial court abused its discretion in concluding under
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section 107(1)(d)(II) that Bailey’s communications with those treaters were not protected
by the physician–patient privilege. However, the trial court should consider on remand
whether the Baileys waived that privilege under the implied waiver doctrine. If the
trial court finds that the Baileys did impliedly waive their physician–patient privilege as
it pertains to the Craig and St. Mary’s treaters, the trial court should also reconsider
whether there is a risk of residually privileged information being disclosed during the
ex parte interviews and whether the Craig and St. Mary’s treaters could be subject to
undue influence during those ex parte interviews. Accordingly, we make our rule to
show cause absolute and remand this case to the trial court for further proceedings
consistent with this opinion.
JUSTICE HART does not participate.
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