People v. Covington

• Decision Date: 20 February 2001
• Docket Number: No. 99SC431.,99SC431.
• Citation: 19 P.3d 15
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Richard COVINGTON, Respondent.
• Court: Colorado Supreme Court

19 P.3d 15

The PEOPLE of the State of Colorado, Petitioner, v. Richard COVINGTON, Respondent.

No. 99SC431.

Supreme Court of Colorado, En Banc.

February 20, 2001.

As Modified on Denial of Rehearing March 12, 2001.

Ken Salazar, Attorney General, John J. Krause, First Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, CO, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, CO, Attorneys for Respondent.

JUSTICE KOURLIS delivered the Opinion of the Court.

This case raises the issue of whether a photograph of a victim's injury taken by a physician assistant at the request of an investigating police officer falls under the physician-patient privilege, and if so, whether it is nonetheless admissible by operation of statute.¹ The trial court admitted the photograph into evidence at Defendant Richard Covington's trial for a number of charges arising out of an incident in which he shot his wife through a bedroom wall.² The jury found Mr. Covington guilty of second degree assault, possession of more than eight ounces of marijuana, and misdemeanor menacing. The court of appeals found prejudicial error in the second degree assault conviction, reversed the defendant's judgment of that conviction and remanded for a new trial. People v. Covington, 988 P.2d 657, 660 (Colo.App. 1999).

We now conclude that the information contained in the photographs does fall within the physician-patient privilege. However, we find that section 12-36-135, 4 C.R.S. (2000), operates to abrogate the privilege by virtue of the legislative determination that in episodes of domestic violence or gunshot wounds, physicians have a duty to report and may testify in court regarding the injuries they observed in the examination. Therefore, the trial court did not err in admitting the photographs into evidence.

I.

Richard and Elaena Covington owned and operated a white water rafting company and a short-term cabin rental company in Twin Lakes, Colorado. On August 11, 1994, Mr. Covington returned home in an intoxicated state. Mr. Covington loudly berated his wife about a family to whom she had rented one of their cabins, then loaded his rifle and fired two shots into his bedroom floor. A few minutes later, he fired a third shot through the bedroom wall and hit Mrs. Covington as she lay in bed with the couple's two-year-old daughter. The bullet entered Mrs. Covington's buttocks on her left side, exited the inside of her left thigh, and entered the right thigh.

An ambulance took Mrs. Covington to the hospital. A female physician assistant was on duty and attended to Mrs. Covington. In the emergency room, the investigating Sheriff's officer asked the physician assistant to take photographs of the wounds, because the wounds were located in the groin area. The physician assistant testified at trial that she took the picture at the officer's request while the officer was in the emergency room and that she did not need the photograph for purposes of medical treatment. However, the record is unclear regarding exactly where the officer was located in the emergency room and whether or not Mrs. Covington consented to being photographed, or even knew that the physician assistant was taking the photographs.

Mr. Covington was charged with first degree assault, two counts of crime of violence, second degree assault, first degree criminal trespass, possession of more than eight ounces of marijuana, and misdemeanor menacing. He moved to suppress the photographs from evidence on the basis that they violated Mrs. Covington's physician-patient privilege. Mrs. Covington testified and invoked the privilege at the pre-trial motions hearing. However, Mrs. Covington did not appeal the judge's ruling on the use of the photographs at trial.³ The trial court ruled that because the photographs of Mrs. Covington's injuries were not necessary for treatment, they did not fall within the physician-patient privilege and thus allowed the physician assistant to provide foundation testimony for the photographs. The trial court further concluded that the evidence was relevant to whether the assault caused serious bodily injury, one of the elements of second degree assault. § 18-3-203(1)(d), 6 C.R.S. (2000). The case went to the jury and Mr. Covington was ultimately convicted of second degree assault, possession of more than eight ounces of marijuana, and misdemeanor menacing. He appealed his convictions to the court of appeals.

The court of appeals determined that the decision to admit the photographs into evidence constituted prejudicial error, because they fell within the physician-patient privilege and Mrs. Covington had not waived that privilege. The court of appeals remanded for a new trial. Covington, 988 P.2d at 664.

II.

We must begin our analysis with a brief discussion of the parameters of the physician-patient privilege. The privilege is statutory, and provides that "[a] physician, surgeon, or registered professional . . . 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." § 13-90-107(1)(d), 5 C.R.S. (2000). The legislature created the physician-patient privilege to "encourag[e] patients to fully disclose medically relevant information to their physicians by reducing the possibility of humiliation or embarrassment through subsequent public disclosure of such information by the physician." People v. Deadmond, 683 P.2d 763, 769 (Colo.1984). A physician assistant is a certified medical professional, and we conclude that physician assistants fall within the privilege statute. § 12-36-106(5), 4 C.R.S. (2000) (describing the extent to which a physician assistant may practice medicine).

The physician-patient privilege applies to "observations resulting from examination" as well as to actual communications. People v. Marquez, 692 P.2d 1089, 1095 (Colo.1984). Because the physician-patient privilege is statutory, courts should construe it narrowly. Id.

The physician-patient privilege attaches when the information acquired by the physician is necessary for the physician to "act or prescribe for the patient." § 13-90-107(1)(d). Names, addresses, and phone numbers do not fall within the privilege because a doctor does not need them to prescribe or act on behalf of the patient. Belle Bonfils Mem'l Blood Ctr. v. Dist. Court, 763 P.2d 1003, 1009 (Colo.1988). Additionally, information obtained by a physician to assist the patient in pending litigation, not for the purposes of diagnosis, is not privileged. B.B. v. People, 785 P.2d 132, 140 (Colo.1990) (involving the assertion of the psychiatrist-patient privilege, but equating that privilege with the physician-patient privilege).

In Hanlon v. Woodhouse, 113 Colo. 504, 510, 160 P.2d 998, 1001 (1945), this court refused to apply the physician-patient privilege to the testimony of a physician derived from a blood sample taken at the request of a public official conducting an inquiry into the intoxication of the defendant. The court ruled that testimony by the doctor concerning the blood sample was not privileged because the doctor did not need the information to prescribe or act. Id. at 508-10, 160 P.2d at 1001 (noting that the prosecution presented no evidence indicating necessity and, "the record affirmatively show[ed] that the test was procured by the physician because of, and in obedience to, a request from a public officer").

III.

In determining whether or not the photographs fall under the physician-patient privilege, we focus on the information contained within the photographs, not the photographs themselves. The People argue that because the physician assistant did not need the photographs to administer treatment to Mrs. Covington, the privilege does not apply to the photographs. Mr. Covington responds that the physician assistant did use the information contained in the photographs to treat Mrs. Covington. Therefore, a photograph's memorialization of observations should fall within the privilege as long as the privilege includes the actual observations. We agree with Mr. Covington.

The evidentiary inquiry focuses on the depicted data, not the photograph itself. Focusing solely on the photographs, and not the depicted data, would frustrate the purpose of the privilege by admitting otherwise protected information merely because of the method used to deliver the information. Cf. Deadmond, 683 P.2d at 769

(the statute's function is to encourage full disclosure by patients by reducing the possibility of humiliation or embarrassment through subsequent public disclosure of such information). Because the physician assistant took the photographs and the information contained within the photographs represents an observation the physician assistant made during her examination, and because that observation is one that she would not have made were it not for her position as a treating professional, we hold that it falls within the physician-patient privilege. See Marquez, 692 P.2d at 1095.

IV.

Although the information contained within the photographs is privileged, we must next determine whether or not the privilege has been waived. This requires an analysis of three different scenarios. First, we will discuss whether or not the officer's presence in the emergency room would constitute a waiver of Mrs. Covington's privilege. Second, we will examine whether the layperson exception applies in this case. Finally, we will discuss the effect that the Reporting Statute, section 12-36-135, 4 C.R.S. (2000), has on the privilege.

A.

The party holding a testimonial privilege such as the physician-patient privilege may waive the privilege, either by an express or implied consent to disclose. Clark v. Dist. Court, 668 P.2d 3, 8 (Colo. 1983). The party seeking to overcome the claim of privilege has the burden...