Devenyns v. Hartig

• Decision Date: 29 October 1998
• Docket Number: No. 96CA2167.,96CA2167.
• Citation: 983 P.2d 63
• Parties: John C. DEVENYNS, Plaintiff-Appellant, v. Shirley M. HARTIG, Defendant-Appellee.
• Court: Colorado Court of Appeals

983 P.2d 63

John C. DEVENYNS, Plaintiff-Appellant, v. Shirley M. HARTIG, Defendant-Appellee.

No. 96CA2167.

Colorado Court of Appeals, Div. III.

October 29, 1998.

As Modified on Denial of Rehearing November 27, 1998.

Certiorari Denied September 7, 1999.

Law Offices of W. Thomas Beltz, W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, for Plaintiff-Appellant.

Retherford, Mullen, Johnson & Bruce, LLC, Lori M. Moore, Colorado Springs, Colorado, for Defendant-Appellee. Opinion by Judge DAVIDSON.

In this action arising from an automobile accident, plaintiff, John C. Devenyns, appeals from the judgment entered upon a jury verdict in favor of defendant, Shirley M. Hartig. We affirm. The circumstances of the accident are not disputed. Plaintiff and defendant were driving in the same direction in the westbound lane on an icy road. Defendant, traveling in front of plaintiff, began to pump her brakes as she approached a traffic signal and lost control of her vehicle. The car spun on the ice and ended up facing east on the westbound lane. Plaintiff's car then collided head-on with defendant's vehicle.

I.

Prior to trial, plaintiff requested the production of documents from defendant which included medical records in her personal injury protection (PIP) insurance file supplied by defendant to her insurance carrier as required under § 10-4-706, C.R.S.1998, and statements concerning her injuries made to the PIP insurance adjuster. Defendant objected, arguing primarily that the information contained in the documents was protected by the physician-patient privilege. The trial court, noting that defendant's medical condition was not at issue in the case, agreed with defendant, determined that she had produced all other information relevant to the accident as requested by plaintiff, and denied the motion.

Plaintiff contends that this was error. Specifically, he argues that defendant waived her privilege by reporting medical information to her insurance carrier and, therefore, he was entitled to inspect the documents. He further argues that these documents were relevant because they might have led to discoverable evidence admissible at trial concerning the extent of defendant's injuries and her ability to recall the accident. We perceive no error in the trial court's ruling.

A motion to compel discovery lies within the discretion of the trial court and its ruling will be upheld on appeal absent an abuse of its discretion. Williams v. District Court, 866 P.2d 908 (Colo.1993).

A.

Section 13-90-107(1)(d), C.R.S.1998, provides that:

A physician ... 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.

1.

Initially, to the extent that plaintiff suggests that only statements made by a patient to her doctor, but not her medical records, are protected under § 13-90-107(1)(d), we note simply that hospital and medical records fall within the scope of the physician-patient privilege. See Clark v. District Court, 668 P.2d 3 (Colo.1983); Colorado State Board of Nursing v. Bethesda Psychiatric Hospital, 809 P.2d 1051 (Colo. App.1990).

2.

Here, plaintiff specifically requested the production of defendant's medical records which had been released to her insurance carrier pursuant to § 10-4-706 for payment of her medical expenses. Plaintiff contends that, even if such records generally would be protected, because defendant submitted them to her PIP insurer, she impliedly waived the privilege. We do not agree. We conclude that, as a matter of law, the physician-patient privilege is not waived simply because an insured party has released medical records to his or her PIP insurance carrier for payment of medical expenses.

To establish an implied waiver, there must either be conduct inconsistent with the assertion of a privilege or a clear, unequivocal, and decisive act by a party manifesting an intent to relinquish the right or privilege. Tripp v. Parga, 847 P.2d 165 (Colo.App. 1992).

When a patient initiates a civil action, and by alleging a physical or mental condition as the basis for a claim for damages injects that issue into the case, the patient impliedly waives his or her privilege with respect to that medical condition. Samms v. District Court, 908 P.2d 520 (Colo.1995). Here, however, as the trial court observed, under no theory could it be argued that defendant's participation in this lawsuit constituted such an implied waiver. Plaintiff does not seem to dispute this, but asserts that, nevertheless, defendant's disclosure of medical records to the PIP carrier constitutes disclosure to a third party and, therefore, must effectively be deemed as a waiver. We do not agree.

The mere act of submitting medical records to a PIP insurer cannot establish such waiver. A person injured in an automobile accident does not have a choice, but rather is required to submit medical records to an insurer in order to receive payment for medical expenses incurred from the accident. See § 10-4-706. Under such circumstances, his or her intent, at most, cannot be construed unequivocally as a relinquishment of the physician-patient privilege.

Viewed conversely, if the release of medical records to a PIP insurer, without more, could be considered a waiver of the physician-patient privilege, a person otherwise entitled to reimbursement from a PIP insurer would be forced to choose between waiving the privilege or forgoing such payment. Indeed, any patient, under these circumstances, could be discouraged from making full disclosure to a medical provider or even, perhaps, from seeking treatment.

Since individuals needing health care and medical treatment usually rely on insurance for full or partial payment of expenses, were the mere act of providing medical information to an insurance carrier sufficient to constitute a waiver, the privilege would be rendered meaningless. See Samms v. District Court, supra (purpose of physician-patient privilege is to promote health care); State ex rel. Gonzenbach v. Eberwein, 655 S.W.2d 794 (Mo.Ct.App.1983) (releasing records to insurer for reimbursement does not waive physician-patient privilege because such action is integral part of modern medical treatment process); Henry v. Lewis, 102 A.D.2d 430, 478 N.Y.S.2d 263 (N.Y.App.Div.1984) (authorization of patient to release medical information to specific party is not a blanket waiver of physician-patient privilege in relation to others).

B.

We also disagree with plaintiff's contention that the trial court abused its discretion when it determined that, under the circumstances at issue, statements by defendant concerning her injuries made to the insurance adjuster were not discoverable.

A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the action. Information sought need not be admissible at trial if such information appears reasonably calculated to lead to discovery of admissible evidence. C.R.C.P. 26(b)(1); Kerwin v. District Court, 649 P.2d 1086 (Colo.1982).

Here, even if we assume that certain statements made by defendant to her insurance adjuster were not protected by the physician-patient privilege, the trial court correctly determined that they were not properly discoverable under the particular circumstances here.

First, contrary to plaintiff's assertion, evidence of defendant's injuries had no relation to the existence or extent of plaintiff's injuries.

Secondly, although plaintiff alleged that defendant's injuries may have affected her ability to remember how the accident occurred, he offered no basis whatsoever for his speculation that defendant's ability to recall events was affected by the accident. And, as plaintiff concedes, the trial court conducted an in camera inspection of the discovery requests before rejecting his motion.

Furthermore, defendant's statements concerning how the accident occurred already had been provided to plaintiff. If inconsistent statements were made by defendant, plaintiff had the ability to impeach her recollection through these existing statements. Evidence of her injuries would not lead to these statements and plaintiff did not require such information in order to impeach defendant's credibility.

II.

Plaintiff next contends that the trial court erred in refusing to allow him to read defendant's deposition into the record as substantive evidence in lieu of her live testimony during trial. He argues that, because C.R.C.P. 32(a)(2) allows the use of an adverse party's deposition for any purpose, he should have been allowed to read parts of defendant's deposition into the record, even though she was available to testify. We agree, but conclude that the error was harmless.

During the presentation of his case, rather than call her as a witness, plaintiff sought to introduce into evidence portions of defendant's deposition under C.R.C.P. 32(a)(2). He informed the court that his purpose for doing this was "trial strategy." He explained that he did not want to elicit sympathy for defendant and wanted to avoid the appearance of "picking on" her during direct examination.

Defendant objected, asserting that C.R.C.P. 32(a)(3) requires a showing of unavailability. Defendant argued that, because she was a party and a witness present in court available to testify, C.R.C.P. 32(a)(3) allowed plaintiff to use her deposition only for impeachment.

Citing the reference to the importance of presenting testimony orally in open court set forth in C.R.C.P. 32(a)(3), the trial court agreed with defendant, denied plaintiff's request, and determined that plaintiff could use defendant's deposition only to impeach her testimony. Plaintiff chose not to use defendant's deposition and now argues that the trial court's ruling is reversible error. We do not agree.

C.R.C.P. 32(a)(2) provides, in pertinent part, that "the deposition of a...