Ortega v. Colorado Permanente Med. Grp., P.C., 10SA373.

• Citation: 265 P.3d 444
• Decision Date: 05 December 2011
• Docket Number: No. 10SA373.,10SA373.
• Parties: In re Ernest ORTEGA, Plaintiff v. COLORADO PERMANENTE MEDICAL GROUP, P.C.; Kaiser Foundation Health Plan of Colorado; and David Lieuwen, M.D., Defendants.
• Court: Supreme Court of Colorado

265 P.3d 444

In re Ernest ORTEGA, Plaintiff

v.COLORADO PERMANENTE MEDICAL GROUP, P.C.; Kaiser Foundation Health Plan of Colorado; and David Lieuwen, M.D., Defendants.

No. 10SA373.

Supreme Court of Colorado, En Banc.

Nov. 7, 2011.Rehearing Denied Dec. 5, 2011.*

Leventhal, Brown & Puga, P.C., Jim Leventhal, Molly L. Greenblatt, Benjamin I. Sachs, David P. Mason, Denver, Colorado, Attorneys for Plaintiff.

Martin Conklin, P.C., John L. Conklin, Amy K. Cardone, Denver, Colorado, Pryor Johnson Carney Karr Nixon, P.C., Elizabeth C. Moran, Greenwood Village, Colorado, Attorneys for Defendants.

Office of University Counsel, Patrick T. O'Rourke, Denver, Colorado, Attorneys for Amicus Curiae the Regents of the University of Colorado.Davis Graham & Stubbs LLP, John A. Francis, Richard P. Holme, Lisa Edwards Rothrock, Denver, Colorado, Attorneys for Amicus Curiae HCA–HealthONE LLC.Davis Graham & Stubbs LLP, Andrew M. Low, Richard P. Holme, Denver, Colorado, Attorneys for Amicus Curiae Copic Insurance Company.Hershey Skinner, LLC, Kari M. Hershey, Littleton, Colorado, Attorneys for Amicus Curiae the Colorado Medical Society.Justice RICE delivered the Opinion of the Court.

This original proceeding arises out of a medical malpractice case currently pending in the Denver district court. Plaintiff Ernest Ortega has sued defendants Dr. David Lieuwen and Kaiser Foundation Health Plan of Colorado (“Kaiser”) for malpractice based on what he alleges to have been negligent medical treatment given to him on September 28, 2007 and October 2, 2007. Ortega seeks relief from a trial court order denying him a protective order for his electronic medical record spanning the ten-year period preceding the incident underlying this case. The trial court determined that Ortega's electronic medical record was not protected by the physician-patient privilege and that the record was relevant to prepare a defense. Therefore, it held that the defendants may review Ortega's electronic medical record, which is in their possession, to prepare a defense.

We hold that the trial court did not abuse its discretion when it ruled that the physician-patient privilege did not attach to Ortega's electronic medical record based on the statutory exception contained in subsection 13–90–107(1)(d)(I), C.R.S. (2011). We further hold that section 10–16–423, C.R.S. (2011), provides a similar exception which permits health maintenance organizations to review a member's relevant health information in the event of a claim or litigation. Additionally, Ortega's entire electronic medical record is relevant for defendants to prepare a defense. Therefore, the defendants may examine and use unredacted copies of all of Ortega's electronic medical record in their care, custody and control generated from 1998 to the present to prepare their defense. Accordingly, we discharge the rule to show cause.

I. Facts and Procedural History

Ortega brought a medical malpractice action against Lieuwen and Kaiser in the Denver district court after suffering a myocardial infarction outside of Kaiser's facility shortly after completing an exercise treadmill stress test.

At the time of his heart attack, Ortega had been a member of Kaiser's Health Maintenance Organization (“HMO”) for almost twenty years. Kaiser provides comprehensive, integrated medical care and operates a variety of medical offices throughout the metropolitan Denver region.

Kaiser contracts with Colorado Permanente Medical Group (“CPMG”), an integrated group medical practice of physicians in primary care and specialty fields, to provide medical care to Kaiser members. In addition, Kaiser's medical offices are staffed by physician assistants, nurse practitioners, nurses, therapists, pharmacists, and other ancillary health care providers, all of whom are employed by Kaiser. Lieuwen is a shareholder-employee of CPMG.

Kaiser has maintained an integrated electronic medical record system since 1998 which enables treating Kaiser health care providers to access the entirety of a patient's electronic medical history. Kaiser employees and affiliated medical providers create the electronic medical record at the time they provide care; they also have instantaneous access to a member's electronic medical record. Kaiser created and kept Ortega's medical record in its electronic medical record system from 1998 through the time of the incident in 2007.

Days after filing an amended complaint, Ortega notified the defendants that he intended to assert the physician-patient privilege to protect the contents of his electronic medical record. In response, Kaiser and Lieuwen refrained from reviewing the medical record and provided a copy of the record to Ortega's counsel.

Ortega filed a motion for protective order seeking to prevent defendants from reviewing his electronic medical record. He asserted that the physician-patient privilege prevented disclosure of his medical record and that he had not waived the privilege. The defendants argued that the physician-patient privilege did not attach to Ortega's electronic medical record because the statutory exception contained in subsection 13–90–107(1)(d)(I) applied.

The trial court denied the motion for protective order. Ortega then filed a motion for reconsideration, which the trial court again denied in a ten-page order. The trial court held that two statutory provisions applied to the case at hand and that each provided exceptions to the physician-patient privilege: (1) subsection 13–90–107(1)(d)(I) governing physicians, surgeons and registered professional nurses; and (2) section 10–16–423 governing HMOs. Applying these statutes, the trial court determined that the physician-patient privilege did not attach to Ortega's medical record. The trial court also found that the medical records were relevant because they concerned the subject matter of Ortega's suit. Accordingly, the defendants were entitled to access the records in their care, custody, and control and use them in preparation of their defense.

Ortega requested and was granted a stay of the trial court's order. Ortega then filed a C.A.R. 21 Petition with this Court seeking review of the trial court's order. We issued a rule to show cause to determine whether the trial court properly denied Ortega's motion for a protective order.

II. Jurisdiction and Standard of Review

This Court will not ordinarily review a trial court's pretrial discovery order. Cardenas v. Jerath, 180 P.3d 415, 420 (Colo.2008). C.A.R. 21, however, authorizes us to review a trial court's order if a remedy on appeal would be inadequate. Cardenas, 180 P.3d at 420. 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 of an appeal from a final judgment. Clark v. Dist. Court, 668 P.2d 3, 7 (Colo.1983). Thus, we invoke our original jurisdiction under C.A.R. 21 in this case to review the trial court's order because of the nature of the rights implicated and the potential irreparable harm from disclosure of medical information. See Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 861 (Colo.2004). We review matters under C.A.R. 21 for an abuse of discretion. Cardenas, 180 P.3d at 420.

III. Analysis

A. The Physician–Patient Privilege

The trial court determined that, under the statutory exception to the physician-patient privilege contained in subsection 13–90–107(1)(d)(I), the privilege did not attach to Ortega's electronic medical record. We agree.

The physician-patient privilege arises by statute in Colorado and protects communications and information shared between a patient and his physician once the privilege attaches. § 13–90–107(1)(d); Clark, 668 P.2d at 7–8. The privilege is intended to encourage a patient to make a full disclosure to his treating physician, to promote effective diagnosis and treatment, and to protect the patient from embarrassment. Clark, 668 P.2d at 8. The statute provides:

a physician, surgeon, or registered professional nurse ... shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient.

§ 13–90–107(1)(d).

The physician-patient privilege is not absolute, however; the General Assembly also provided statutory exceptions to the privilege. See §§ 13–90–107(1)(d)(I)–(VI). Relevant to our inquiry here, section 13–90–107(1)(d)(I) mandates that the provisions of subsection (1)(d):

shall not apply to : ... A physician, surgeon, or registered professional nurse who is sued by or on behalf of a patient ... on any cause of action arising out of or connected with the physician's or nurse's care or treatment of such patient.

(emphasis added).

The meaning of the statutory exception contained in section 13–90–107(1)(d)(I) is an issue of first impression. In construing statutes, we seek to effectuate the intent of the legislature, looking first to the plain language of the statute and giving the language its commonly accepted and understood meaning. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). Where the statutory language is clear and unambiguous, we do not resort to legislative history or further rules of statutory construction. Id.

The language of section 13–90–107(1)(d)(I) is clear. First, the exception requires a patient to institute a suit or cause of action against a physician, surgeon or registered professional nurse. Also, the patient's suit must arise out of or be connected with the physician's, surgeon's, or registered professional nurse's care or treatment of the patient. § 13–90–107(1)(d)(I). When these two circumstances occur, the physician-patient privilege provided in subsection (1)(d) no longer applies. Id. Therefore, when a patient institutes an action against a physician, and that action...