Bailey v. Hermacinski, Supreme Court Case No. 17SA20

• Decision Date: 05 March 2018
• Docket Number: Supreme Court Case No. 17SA20
• Citation: 413 P.3d 157
• Parties: In re Kelley BAILEY and Michael Bailey, Plaintiffs v. Mark HERMACINSKI, M.D.; Leslie Ahlmeyer, M.D.; Mary Bowman, M.D.; and Yampa Valley Medical Center, a non-profit corporation, Defendants.
• Court: Colorado Supreme Court

413 P.3d 157

In re Kelley BAILEY and Michael Bailey, Plaintiffs

v.Mark HERMACINSKI, M.D.; Leslie Ahlmeyer, M.D.; Mary Bowman, M.D.; and Yampa Valley Medical Center, a non-profit corporation, Defendants.

Supreme Court Case No. 17SA20

Supreme Court of Colorado.

March 5, 2018

Attorneys for Plaintiffs: Schoenwald & Thompson LLC, Julia Thompson, Denver, Colorado

Attorneys for Defendants: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado

Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Ruebel & Quillen, LLC, Jeffrey Clay Ruebel, Casey A. Quillen, Westminster, Colorado

Attorneys for Amicus Curiae Colorado Medical Society: Conklin Cardone & Rutberg, PC, John L. Conklin Amy K. Cardone Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Cross & Bennett, L.L.C., Joseph F. Bennett, Colorado Springs, Colorado

Attorneys for Amicus Curiae COPIC Insurance Company: Kittredge LLC, Daniel D. Domenico, Denver, Colorado

Attorneys for Amicus Curiae Regents of the University of Colorado: Office of University Counsel, Patrick T. O'Rourke, Denver, Colorado

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 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 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").

¶ 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 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 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 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...