Samms v. District Court, Fourth Judicial Dist. of State of Colo.

Decision Date18 December 1995
Docket NumberNo. 95SA22,95SA22
Citation908 P.2d 520
PartiesJudy Anne SAMMS, and Frank Clifford Samms, Petitioners, v. The DISTRICT COURT, FOURTH JUDICIAL DISTRICT OF the STATE OF COLORADO, and Steven T. Pelican, one of the Judges thereof, Respondents.
CourtColorado Supreme Court

Robert S. Fisher, Colorado Springs, for Petitioners.

Kennedy & Christopher, P.C., Mark A. Fogg, John R. Mann, Matthew S. Feigenbaum, Denver, for Respondents.

Curt Kriksciun, Michael J. Steiner, Denver, for Amicus Curiae, Colorado Compensation Insurance Authority.

Johnson, Ruddy, Norman & McConaty, Brian G. McConaty, Thomas H. Anderson, Denver, for Amicus Curiae Colorado Defense Lawyers Association.

Dawes and Harriss, P.C., Gail C. Harriss, Durango, for Amicus Curiae Workers' Compensation Education Association.

Schaden, Lampert & Lampert, Susanna Meissner-Cutler, Denver, for Amicus Curiae, Colorado Trial Lawyers Association.

Justice KIRSHBAUM delivered the Opinion of the Court.

The petitioners, Judy Anne Samms (hereafter referred to as "Samms") and her husband, Frank Clifford Samms, have initiated this original proceeding pursuant to C.A.R. 21. The petitioners seek relief from an order entered by the respondent, the District Court for the Fourth Judicial District of the State of Colorado (the trial court), which order authorized the attorney representing Dr. Michael Bjork, the defendant in a medical malpractice action filed by the petitioners, to conduct ex parte interviews with several physicians who had treated Samms. Having issued a rule to show cause why the relief requested should not be granted, we now discharge the rule in part and make the rule absolute in part.

I

On March 2, 1991, Samms visited the emergency room of a Colorado Springs hospital complaining of upper abdominal pain. Bjork, her treating physician, conducted several tests and concluded that Samms was suffering from peptic acid disease with reflux esophagitis. He then discharged her from the emergency room.

Samms continued experiencing medical difficulties and sought medical advice and treatment for her condition from numerous other physicians. When a cardiologist concluded that Samms had suffered a myocardial infarction on March 2, 1991, resulting from a pre-existing condition of myocardial ischemia, the petitioners initiated this medical malpractice action. Samms alleges that Bjork negligently failed to diagnose and properly treat her on March 2, 1991, and that as a result of such negligence she suffered physical and mental injuries. Her husband alleges that he suffered a loss of consortium as a result of Bjork's negligence.

During the course of discovery Bjork's attorney sent a letter dated July 23, 1993, to the petitioners' attorney. The letter informed the petitioners' attorney that Bjork's attorney intended "to conduct ex parte interviews" with five physicians who had treated Samms and that "if any particular interview poses a reasonable concern that privileged matters not already waived by the filing of this suit will be disclosed, I will provide you with adequate notice and the opportunity to be present." The petitioners objected to any ex parte interviews by Bjork's attorney with any physicians who had treated Samms and filed a motion with the trial court to prohibit Bjork's attorney from conducting the proposed interviews.

On November 13, 1993, the trial court entered an order (hereafter referred to as the "1993 order") denying the petitioners' motion and authorizing Bjork's attorney to interview the physicians in the absence of Samms or Samms' attorney. In so doing, the trial court stated that it declined to follow this court's decision in Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (1975). In its 1993 order the trial court stated that Samms had placed her physical and mental condition in issue and "any other injuries or conditions, 'which arguably could have caused or contributed to the injuries or damages alleged in the complaint.' " (Citations omitted.) The order also contained the following pertinent provisions:

2. The scope of the waiver of the privilege has been set forth above. Based thereon, counsel for the [petitioners] may not "caution" any of the listed physicians in the manner suggested in his Reply Brief or in any similar manner. Any physician who is interviewed by defense counsel, ex parte, shall be provided with a copy of this Order so that he is aware, before the interview, of the scope of the waiver of the privilege.

3. Counsel for [Bjork] shall at all times be aware of the scope of the waiver of the privilege set forth herein. The Court agrees ... that, "... it is unethical for counsel, in any context, to attempt to elicit information which counsel knows or should know is subject to a statutory privilege which has not been waived." [T]his Court has defined the scope of that privilege in the case at bar.

4. This Order shall not apply to any physicians other than those listed above without prior application for extension by counsel.

5. Defense counsel shall provide notice of any ex parte contact with any of the above-mentioned treating physicians in which there is a "reasonable probability of disclosure of material which may be privileged or subject to protective order." That notice will comply with the Rules of Civil Procedure regarding notices of deposition and any Motion for Protective Orders shall comply with C.R.C.P. [26(c) ].

The petitioners did not seek review of the 1993 order.

Between November 13, 1993, and November 4, 1994, Bjork's attorney conducted interviews with several of the physicians referred to in the July 23, 1993, letter. On November 4, 1994, Bjork's attorney sent another letter to the petitioners' attorney. This letter indicated that Bjork's attorney intended to conduct similar ex parte interviews with fifteen additional physicians. The petitioners objected to such interviews and promptly filed a second motion for protective order. On January 5, 1995, the trial court entered an order (hereafter referred to as the "1995 order") denying the motion with respect to fourteen of the physicians named in the November 4, 1994, letter. The trial court stated that its 1995 order was based on its 1993 order. The petitioners subsequently filed this petition for writ of prohibition.

II

Issues arising in the course of pretrial discovery are committed to the discretion of the trial court and are in general reviewable only on appeal. Hamon Contractors, Inc. v. District Court, 877 P.2d 884, 887 (Colo.1994); Clark v. District Court, 668 P.2d 3, 7 (Colo.1983). However, if an order regulating pretrial discovery may result in damage to a litigant that cannot be cured on appeal, this court may consider the matter in the exercise of its original jurisdiction. Hamon Contractors, Inc., 877 P.2d at 887; Clark, 668 P.2d at 7. In this case we choose to exercise our original jurisdiction.

III

The General Assembly has defined the physician-patient privilege in the following pertinent language:

(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....

§ 13-90-107(1)(d), 6A C.R.S. (1987). The statutory privilege is that of the patient and may be waived only by the patient. Clark, 668 P.2d at 8. The privilege is designed to encourage a patient to make full disclosure to his or her treating physician to promote effective diagnosis and treatment and to protect the patient from embarrassment which might result from the physician's disclosure of information regarding the patient's medical condition or treatment. Id.; Williams v. People, 687 P.2d 950, 953 (Colo.1984).

When a patient initiates a civil action and by alleging a physical or mental condition as the basis for a claim of damages injects that issue into the case, the patient thereby impliedly waives his or her physician-patient privilege with respect to that medical condition. Clark, 668 P.2d at 10. Such implied waiver constitutes consent for purposes of section 13-90-107(1)(d). Clark, 668 P.2d at 10.

In this case, Samms has alleged that Bjork's failure to properly diagnose myocardial ischemia resulted in injury to her. By injecting that issue into the case, Samms waived her physician-patient privilege with respect to information related to her heart condition obtained by a physician in the course of diagnosing or treating Samms for that condition. The question for determination is whether and to what extent this waiver authorized the trial court to allow Bjork's attorney to conduct informal interviews with Samms' treating physicians in the absence of Samms or Samms' attorney.

A

Courts are divided with respect to the question of whether in the absence of a plaintiff's express consent a trial court may authorize an attorney representing a defendant in a civil action to communicate informally with non-party physicians who have treated the plaintiff in the absence of the plaintiff or the plaintiff's attorney. Compare Felder v. Wyman, 139 F.R.D. 85 (D.S.C.1991) (ex parte interviews allowed); Doe v. Eli Lilly & Co., 99 F.R.D. 126 (D.D.C.1983) (ex parte communications between defense counsel and patient's treating physician not precluded when patient has waived physician-patient privilege); Langdon v. Champion, 745 P.2d 1371 (Alaska 1987) (same); Green v. Bloodsworth, 501 A.2d 1257 (Del.Super.Ct.1985) (same); Domako v. Rowe, 438 Mich. 347, 475 N.W.2d 30 (1991) (same); Brandt v. Medical Defense Assocs., 856 S.W.2d 667, 673 (Mo.1993) (treating physician does not have duty to give testimony that is favorable and beneficial to the patient and detrimental to the opponent); Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985) (ex parte...

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