Clark v. District Court, Second Judicial Dist., City and County of Denver

• Decision Date: 29 August 1983
• Docket Number: No. 83SA182,83SA182
• Parties: Stephan D. CLARK, Petitioner, v. DISTRICT COURT, SECOND JUDICIAL DISTRICT, CITY AND COUNTY OF DENVER; Daniel B. Sparr, one of the judges thereof; Estates of Sailas, Respondents.
• Court: Colorado Supreme Court

Page 3

668 P.2d 3

Stephan D. CLARK, Petitioner, v. DISTRICT COURT, SECOND JUDICIAL DISTRICT, CITY AND COUNTY OF DENVER; Daniel B. Sparr, one of the judges thereof; Estates of Sailas, Respondents.

No. 83SA182.

Supreme Court of Colorado En Banc.

Aug. 29, 1983.

Fortune & Lawritson, P.C., Lowell Fortune, Denver, for petitioner.

Feder, Morris & Tamblyn, P.C., Leonard M. Goldstein, Denver, for respondents.

QUINN, Justice.

In this original proceeding the petitioner, Stephan D. Clark, who is one of two defendants in a pending wrongful death action, seeks to prohibit the Denver District Court (respondent court) from enforcing an order authorizing the disclosure of psychiatric and psychological records pertaining to Clark's previous treatment for mental problems and associated alcohol and drug abuse. We issued a rule to show cause and now make the rule absolute.

I.

Stella M. Sailas, as conservator for the estates of the three minor children of the decedent, Jerry Joseph Sailas, commenced a wrongful death action against 5130 West Alameda, Inc., doing business as the White Horse Bar (corporation), and Stephan D. Clark, its employee, who was acting as manager of the bar, for the fatal shooting of Sailas on September 5, 1981. The complaint, which includes claims of negligence and assault and battery, states in pertinent part that the corporation, notwithstanding its knowledge of Clark's long history of mental illness including alcohol and drug abuse and Clark's lack of training in peace-keeping functions, employed him to maintain order at the bar and permitted him to keep a .357 Magnum pistol within ready access on the premises for that purpose, and that at 2:00 a.m. on September 5, 1981, Clark, after being informed of a disturbance, confronted Sailas in the parking lot of the bar and fired three shots into him, thereby causing his death. In his answer Clark denied any liability for the death and asserted several affirmative defenses, none of which, however, raised his past physical or mental condition as a defense to the claims. ¹

In the course of pretrial discovery, Clark's deposition was taken by the conservator. Clark admitted to having received psychiatric treatment for a mental problem in 1973 and psychological counseling for alcohol and drug abuse on at least four separate occasions between 1974 and 1979. The conservator requested Clark to execute a document authorizing the release of his treatment records, and Clark refused. The conservator then filed a motion to compel discovery under C.R.C.P. 37, ² arguing that Clark's treatment records were properly discoverable because his mental condition prior to and during the shooting was a relevant issue in the case. Clark, in opposing the motion, claimed that the information requested by the conservator was protected by the Colorado physician-patient and psychologist-client privileges. ³ The respondent court held a hearing on the conservator's motion to compel and entered a general minute order granting the motion.

After we issued a rule to show cause, the respondent court filed an answer raising two arguments in support of its discovery order. The respondent court contends that the statutory privileges in question are qualified rather than unqualified and, thus, it could properly order the disclosure of privileged information upon a showing of good cause. It also argues that, even if the statutory privileges are not so qualified, Clark nevertheless waived any privilege by virtue of his answer which, the respondent court asserts, placed his physical and mental condition in issue. We conclude that the information sought by the conservator is protected from discovery by the physician-patient and psychologist-client privileges and that, therefore, the respondent court exceeded its jurisdiction in granting the conservator's motion to compel the discovery of such information.

II.

We recognize at the outset the general rule that orders pertaining to pretrial discovery are interlocutory in nature and are not ordinarily reviewable in an original proceeding. Because, however, the exercise of original jurisdiction is discretionary and governed by the particular circumstances of the case, we have made exceptions to this general rule when, for example, a pretrial discovery order significantly departs from the controlling standards of discovery, e.g., Hawkins v. District Court, 638 P.2d 1372 (Colo.1982); Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959), or when a pretrial discovery order will cause a party unwarranted damage that cannot be cured on appeal, e.g., Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). If Clark's treatment records are indeed protected from disclosure by statutory privileges, then the damage to him will occur upon their disclosure regardless of the ultimate outcome of any appeal from a final judgment. We therefore consider it appropriate to address the validity of the respondent's discovery order in this original proceeding.

III.

Section 13-90-107(1), C.R.S.1973, expressly recognizing that "[t]here are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate," creates a privilege for information imparted to a physician by a patient or to a certified psychologist by a client during the course of a professional relationship. A review of basic principles of law pertaining to these privileges will serve as a backdrop to our resolution of the precise issues before us.

A.

Subsection 13-90-107(1)(d), C.R.S.1973 (1982 Supp.), which creates the physician-patient privilege, states that "[a] physician, or surgeon ... duly authorized to practice his profession ... 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 ...." The statute creating this privilege expressly provides that it shall not apply to the following situations: a malpractice action against a physician on a cause of action arising out of or connected with the physician's care or treatment of the patient; communications made to a physician who was in consultation with the physician being sued for malpractice; and a review of a physician's services by various designated review bodies and governmental agencies. ⁴ The source of the psychologist-client privilege is subsection 13-90-107(1)(g), C.R.S.1973, which states that "[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 ...."

The purpose of the physician-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician's disclosure of information imparted to him by the patient during the course of a consultation for purposes of medical treatment. See, e.g., People v. Taylor, 618 P.2d 1127 (Colo.1980); Community Hospital Association v. District Court, 194 Colo. 98, 570 P.2d 243 (1977); Colorado Midland Ry. Co. v. McGarry, 41 Colo. 398, 92 P. 915 (1907); Colorado Fuel and Iron Co. v. Cummings, 8 Colo.App. 541, 46 P. 875 (1896). The purpose of the psychologist-client privilege, as is obvious from the plain meaning of its statutory terms, is identical to that of the physician-patient privilege. These privileges, once they attach, prohibit not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege. C.R.C.P. 26(b)(1) in this respect authorizes discovery of information relevant to the subject matter in the pending action as long as it is "not privileged."

The burden of establishing the applicability of the privilege rests with the claimant of the privilege. See, e.g., Gerick v. Brock, 120 Colo. 394, 210 P.2d 214 (1949); Hanlon v. Woodhouse, 113 Colo. 504, 160 P.2d 998 (1945). As in the case of other privileges, the physician-patient and the psychologist-client privileges may be waived. A waiver, which is really a form of "consent" to disclosure, may be express or implied, Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971), and the burden of establishing a waiver is on the party seeking to overcome the claim of privilege, see Nelson v. Grissom, 152 Colo. 502, 382 P.2d 991 (1963). A waiver must be supported by evidence showing that the privilege holder, by words or conduct, has expressly or impliedly forsaken his claim of confidentiality with respect to the information in question. ⁵ Cf. Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963) (plaintiff's trial testimony concerning the nature, extent and cost of medical treatment received by him as a result of an automobile accident constituted a waiver of the physician-patient privilege as to those matters to which the plaintiff testified); Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590 (1970) (personal injury plaintiff who elicited trial testimony from two doctors as to the seriousness of his injuries waived the physician-patient privilege as to all physicians consulted by the plaintiff concerning those injuries).

B.

The respondent court argues that the physician-patient and the psychologist-client privileges created by section 13-90-107 should be construed as qualified privileges only, thereby permitting a trial court to resolve a claim of privilege by balancing, on the one hand, a party's need to obtain information essential to a claim or defense and, on the other, the privilege holder's interest in preserving the confidentiality of the information requested. We reject the proposed construction urged by the respondent court.

"Legislative intent is the touchstone of statutory interpretation. When the meaning of a statute is plain and unambiguous, a court cannot substitute its opinion as to how the law should read in place of the law already enacted." Dawson...