Bond v. District Court, In and For Denver County

• Decision Date: 30 April 1984
• Docket Number: No. 83SA390,83SA390
• Citation: 682 P.2d 33
• Parties: Erin Lucele BOND; her parents, Wendell Anson Bond and Eileen Marie Bond; her brother, Ryan Ralph Bond; and her sister, Sydney Noterman Bond, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF DENVER and The Honorable Roger Cisneros, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 33

682 P.2d 33

Erin Lucele BOND; her parents, Wendell Anson Bond and Eileen Marie Bond; her brother, Ryan Ralph Bond and her sister, Sydney Noterman Bond, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF DENVER and The Honorable Roger Cisneros, One of the Judges Thereof, Respondents.

No. 83SA390.

Supreme Court of Colorado En Banc.

April 30, 1984.

Rehearing Denied May 21, 1984.

Frascona, McClow & Joiner, Nancy Alden Bragg, Boulder, for petitioners.

Greengard, Blackman & Senter, Richard D. Greengard, Holly E. Rebstock, Denver, for respondents.

NEIGHBORS, Justice.

In this original proceeding instituted under C.A.R. 21, the petitioners, who are the plaintiffs in a personal injury action filed in the Denver District Court against YMCA of the Rockies (YMCA), seek reversal of the respondent judge's order denying their request for a protective order regarding discovery. Petitioners sought to prohibit discovery by YMCA of notes and records kept by their mental health therapists concerning psychological evaluations and treatments. ¹ We issued a rule to show cause and now make the rule absolute.

I.

On August 20, 1982, Erin Bond, then four years old, was severely injured when she fell off a truck in which she and her family were riding and was run over by one of its wheels. The truck was owned and operated by YMCA. As a result of the incident, the child and members of her family filed suit against YMCA for negligence. In their complaint the petitioners seek recovery of damages for physical pain and suffering, mental pain and suffering, past and future medical and psychiatric expenses, loss of enjoyment of life, and loss of earnings.

During discovery proceedings, YMCA sought to obtain copies of all written notes and records made by the petitioners' therapists during psychological evaluations and psychiatric care and treatment of the petitioners at the Foothills Clinic. YMCA specifically requested "Any and all medical bills, statements, narrative medical reports, hospital records, medical test results, receipts for prescriptions, and any and all other written document or material concerning the Plaintiffs' alleged personal injuries and damages as a result of the incident which is the subject matter of this suit." Petitioners provided YMCA with an evaluation report prepared by Dr. Marshall Vary and Dr. Julie Brody of the Foothills Clinic. However, no notes or other records were made available. Apparently, Drs. Vary and Brody are not directly involved in treating the petitioners.

YMCA filed a motion for an order compelling discovery and the petitioners filed a motion for a protective order. A hearing on the motions was held on September 1, 1983. The respondent judge ruled:

"The Court is going to deny the Motion for Protective Orders; order that the records requested be furnished with the proviso they be kept confidential with the defendant. The Court in ruling this way is aware of the fact that the plaintiffs are the ones who are seeking recovery in this matter and they're asking for a substantial amount, and in order for the defendant to know what to defend against, it is necessary they not be limited to the information the plaintiff wants to reveal.

"I think they have the right to look at the records and they themselves determine what is something they can use or not use."

The petitioners then filed this original proceeding and we issued a rule to show cause.

II.

We recognize at the outset that, as a general rule, orders pertaining to pretrial discovery are interlocutory in nature and not reviewable in an original proceeding. However, we have made exceptions to the general rule when a pretrial discovery order causes unwarranted damage to a litigant that cannot be cured on appeal. See, e.g., Clark v. District Court, 668 P.2d 3 (Colo.1983); Hawkins v. District Court, 638 P.2d 1372 (Colo.1982); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). If the petitioners are wrongly compelled to produce the requested medical records and notes and the information is disclosed, the damage will be done, regardless of any appeal. Therefore, our exercise of original jurisdiction is justified in the present case.

III.

We begin our analysis with a consideration of the discovery rules which are set forth in the Colorado Rules of Civil Procedure. C.R.C.P. 26(b)(1) defines what information is discoverable:

"Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

(Emphasis added.) C.R.C.P. 26(c) provides that a court may issue a protective order under certain circumstances:

"Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court."

In the circumstances of this case, there are two arguments why the therapists' notes and records are not discoverable under C.R.C.P. 26. First, the information is privileged and thus not discoverable under C.R.C.P. 26(b)(1). Second, good cause has been shown under C.R.C.P. 26(c) and thus a protective order should issue to protect the petitioners from embarrassment and oppression.

A.

The information sought by YMCA is privileged under the physician-patient or psychologist-patient privileges if these privileges have not been waived. Section 13-90-107(1), C.R.S.1973, provides that there are "particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases." Physicians and certified psychologists are included as persons who may not testify without the consent of their patient or client. Section 13-90-107(1)(d), C.R.S.1973 (1983 Supp.), provides in part:

"A physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient...."

(Emphasis added.) A psychiatrist comes within the purview of this section. See People v. Taylor, 618 P.2d 1127 (Colo.1980). Section 13-90-107(1)(g), C.R.S.1973, provides in part: "A certified psychologist shall not be examined without the consent of his client as to any communication made by the client to him, or his advice given thereon in the course of professional employment; ..." (Emphasis added.) The mental health therapists who evaluated and are treating the petitioners are persons within the meaning of these statutory provisions. The privilege, once it attaches, prohibits pretrial discovery as to privileged information as well as any testimonial disclosure in court. Clark v. District Court, 668 P.2d 3 (Colo.1983).

The respondent contends, however, that the petitioners waived the privilege by placing their mental condition in issue by bringing the personal injury lawsuit in which they have requested damages for mental suffering and expenses for psychiatric counseling. The privilege statute provides that a physician or certified psychologist may not testify without the patient's consent. This provision impliedly permits a waiver of the privilege. A waiver is a form of "consent" to disclosure which may be express or implied. Clark, 668 P.2d at 8. Waiver is established by a showing that the privilege holder has expressly or impliedly "forsaken his claim of confidentiality with respect to the information in question." Id. See also Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963). In Clark, we held that the proper test for determining whether a patient has waived the privilege is "whether the privilege holder has injected his ... mental condition into the case as the basis of a claim or an affirmative defense." 668 P.2d at 10. The rationale for waiver in the context of a lawsuit is that it is inconsistent for the patient-litigant to base a claim upon his/her mental condition and then use the physician or psychologist privilege to prevent the opposing party from...