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The Supreme Court of Colorado undertook this complicated question in In Re Bailey v. Hermancinski, No. 17SA20, (2018 CO 14).

In this original proceeding, the Supreme Court of Colorado considers the scope of the physician–patient privilege in a medical-malpractice action. The law prohibits medical providers from revealing information about a patient gathered in the course of treating that patient. That prohibition, however, is not unlimited. When a patient sues their medical provider, information arising out of that provider’s treatment is not protected by the physician–patient privilege. And, information held by a non-party medical provider who was in consultation is also outside the protection of the physician–patient privilege.

In March 2014, Kelley Bailey (“Bailey”) underwent a hysterectomy performed by Dr. Ellis. She had serious complications which led to subsequent surgeries and treatment by other doctors and hospitals. In 2016, the Baileys sued all of the doctors involved alleging their negligence led to significant harm and subsequent medical expenses.

During discovery, hundreds of pages of Bailey’s medical records were produced.  However, the Baileys withheld parts of the records pertaining to subsequent treatment, claiming that the information withheld was not relevant to the issues in this lawsuit and therefore remained protected by the physician–patient privilege. The Baileys submitted privilege logs indicating what information they withheld. Defendants did not object to the privilege logs before the trial court; however, they requested ex parte interviews with a number of medical providers who treated Bailey. The Baileys did object to Defendants’ request to conduct ex parte interviews of the people from two of the hospitals where Bailey was treated.

The trial court approved Defendants’ request for ex parte interviews, finding that those treaters had been engaged in a unified course of treatment for conditions arising out of the original alleged acts of negligence. Because of that, the trial court stated those parties were in consultation with Defendants enough to give waiver to physician-patient privilege. The Baileys appealed.

The trial court concluded that the Baileys could not assert the physician–patient privilege with regard to the non-party treaters because those treaters were in consultation with Defendants such that the privilege was removed. This Court disagrees In this case, the non-party treaters provided no collaborative care with Defendants, no exchange of medical records, no discussion of diagnoses or treatment options. In fact, there appears to have been no communication between the Defendant and non-party medical providers whatsoever. On these facts, this Court cannot conclude that the non-party medical providers were in consultation with the Defendant medical providers.

The Baileys may have impliedly waived their claim of privilege under the implied waiver doctrine. The implied waiver doctrine is the notion that a party who puts their medical or physical condition at issue in a lawsuit cannot then shield the information related to that condition from discovery. Therefore, the trial court’s ruling is vacated and the case is remanded to determine whether the Baileys impliedly waived the physician–patient privilege for those non-party treaters.

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