People v. Covington, 96CA1665.

• Decision Date: 18 March 1999
• Docket Number: No. 96CA1665.,96CA1665.
• Citation: 988 P.2d 657
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard COVINGTON, Defendant-Appellant.
• Court: Colorado Court of Appeals

988 P.2d 657

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard COVINGTON, Defendant-Appellant.

No. 96CA1665.

Colorado Court of Appeals, Div. IV.

March 18, 1999.

Rehearing Denied May 6, 1999.

Certiorari Granted October 18, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Claudia Brett Goldin, Deputy State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Richard Covington, appeals the judgment and conviction entered upon a jury verdict finding him guilty of second degree assault, possession of more than eight ounces of marihuana, and misdemeanor menacing. We reverse defendant's conviction for second degree assault, affirm the other convictions, and remand for a new trial.

Second degree assault, as charged here, requires that the actor recklessly cause serious bodily injury to another person by means of a deadly weapon. Section 18-3-203(1)(d), C.R.S.1998.

In the early morning hours of August 11, 1994, defendant returned home late in an agitated and intoxicated state. Upon entering his residence, he yelled at his wife, loaded his rifle, and fired two shots through the living room floor. A few seconds later, he fired a third shot which went through the wall into a child's bedroom and struck his wife, penetrating and exiting both of her upper thighs without hitting any bones, nerves, or arteries.

The wife was taken immediately to the local hospital emergency room which was staffed with an on-call physician assistant. Physician assistants are certified by the State Board of Medical Examiners and are permitted to perform acts which constitute the practice of medicine to the extent permitted by the board and as delegated to them, and as supervised, by a licensed physician. Section 12-36-106(5), C.R.S.1998.

The physician assistant diagnosed, treated, and stabilized the wife before transferring her to a metropolitan hospital for further treatment. In addition, at the request of an investigating officer who was present in the emergency room, the physician assistant photographed the wife's wounds.

In the course of their investigation, police officers searched defendant's home and the surrounding area and discovered some marihuana.

Prior to trial, the wife filed a motion in limine invoking her physician-patient privilege. The trial court ruled that the physician assistant could not be questioned about the care she had provided but did permit the physician assistant, over objection, to testify as to the foundation for the admission of photographs of the wife's injuries.

Since one element of second degree assault is serious bodily injury, see § 18-3-203(1)(d), C.R.S.1998, the physician assistant was also permitted to testify as to the nerves, bones, and blood vessels in the vicinity of the wound which could have been involved, and the seriousness of the wounds that would have happened had those bodily structures been damaged.

Relative to that same issue, the non-treating emergency room physician, using the photographs, testified as to the concerns that the observable injury would present to a treating physician, most particularly, the internal injuries to the nerves, bones, and blood vessels possible from such a wound. The emergency room physician also expressed the opinion that such a wound could, without saying that the actual wound did, cause a substantial risk of death, permanent serious disfigurement, or a permanent loss or impairment.

Defendant sought to use the victim's medical records to cross-examine the physician assistant and the emergency room physician, to show that the bullet did not hit any important bodily structure. Defendant also wanted to use the wife's medical records to show that, based on the treatment received by the wife, the treating medical personnel were not, in fact, concerned that she had received such internal injuries. The trial court ruled that defendant could not elicit such testimony because it would violate the wife's physician-patient privilege.

Defendant moved to strike the physician assistant's testimony and, after the expert witness testified, moved for a mistrial. Both motions were denied.

I.

Defendant first argues that the trial court committed reversible error by allowing the physician assistant to testify in violation of the wife's physician-patient privilege. Defendant specifically contends that the photographs of wife's wounds were inadmissible because they depicted information covered by the wife's physician-patient privilege. Further, defendant contends the physician assistant's testimony violated the wife's privilege by describing her wounds and telling the jury the treatment decisions which led to her transfer to a metropolitan hospital for treatment. We agree that admission of such evidence mandates reversal of the second degree assault conviction.

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

(d) 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)

The purpose of this privilege is to encourage patients to make a full disclosure of medically relevant information to their physicians by reducing the possibility of humiliation or embarrassment through later public disclosure of such information by the physician. People v. Deadmond, 683 P.2d 763 (Colo.1984).

The applicability of the physician-patient privilege to a physician assistant is not at issue. See § 12-36-106(5), C.R.S.1998 (describing the extent to which a physician assistant may practice medicine).

The information protected by the privilege extends beyond communications and includes observations resulting from an examination necessary to act or prescribe treatment for the patient. The privilege can be waived if third parties are present, and the information is communicated to, or is readily discernable by, the third parties. People v. Marquez, 692 P.2d 1089 (Colo. 1984). "The burden of establishing a waiver is on the party seeking to overcome the claim of privilege." People v. Deadmond, supra, 683 P.2d at 770.

In Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971), the defendant in a medical malpractice action was permitted, over the plaintiff's objection, to call a physician who had treated the plaintiff's mother for a similar condition to testify about that treatment. The purpose of the testimony was to impeach the testimony of the plaintiff and establish that the plaintiff's consent to treatment was an informed consent. Defendant asserted that the privilege was personal to the patient and could not be asserted by the plaintiff.

In reversing the judgment in favor of the defendant, the division stated:

It is implicit in the wording of the statute that the relationship between a physician and his patient and any information acquired from that relationship are extremely private matters warranting a high degree of protection; that their disclosure by a physician should be prevented unless waived; and that the law will provide that protection at the time the disclosure is attempted, rather than merely providing a remedy after violation.

Where the patient is not a party to the action and is not present or represented by counsel in the courtroom, the mandate of the statute directs the court to enforce the privilege unless a proper waiver is obtained, or a party to the proceedings protects the privilege, as in the case before us.

Stauffer v. Karabin, supra, 30 Colo.App. at 362, 492 P.2d at 864-65.

The photographs at issue here depict the wounds to the wife's upper thighs and show her buttocks and genital area. The investigating officer testified that he generally knew the location of the injuries but did not testify that he had observed the injuries or that the photographs accurately depicted the injuries. Thus, although the photographs were taken at the request of the investigating officer who was present in the emergency room, they memorialized the physician assistant's observations necessary for treatment, not those of the investigating officer. The People argue that because the photographs were taken at the request of the officer and the physician assistant testified that they were not necessary to enable her to prescribe or act for the wife, they are not privileged. We conclude that the People read the rule too narrowly and the exception too broadly.

The photographs depicted the observations that the physician assistant had to make to enable her to prescribe or act for the patient. See § 13-90-107(1)(d). The privilege would clearly preclude the physician assistant from verbally describing what she observed in the course of treating the wife. The privilege also, in our view, precludes the physician assistant from testifying that the photographs accurately depict what she observed in the course of treatment as that is merely the same testimony in another form.

Put simply, the physician assistant could not, as she was permitted to do, describe the injuries she observed and treated. Nor can she, as she was also permitted to do, testify as to what treatment was administered, her decision making process in formulating a treatment plan, or the concerns which the injury presented to her.

The trial court indicated that the wife might "possibly" have waived the physician-patient privilege as to the photographs by consenting to the taking of the pictures. The record is not clear, however, as to whether the wife was aware that the photographs were being taken at the request...