In the case of Carmody v. Mikesell, No. 16-cv-02603-PAB-NYW, (D. Col., 2017) the Colorado District Court tackles this question.
This case arises from a back injury sustained by Cathleen Carmody (“Carmody”) while detained at the Teller County Detention Center. Carmody alleges in 1999, she sustained a hip injury while working as a nurse. For fifteen years, she dealt with pain in her hip until she had a total hip replacement surgery in September 2014. After the hip replacement, she used a walker. She was arrested, and after processing, her walker was taken away from her. October 27, 2014, Carmody went to watch television in the dayroom of the detention center, while attempting to sit down on a stool, lost her balance and landed on her back. Carmody says she was never taken for any medical examination and the Teller County Detention Center never provided any medical treatment of her back injury, except Tylenol.
Carmody was released in November 2014, and tried to get medical help for her pain, to no avail. She says she must take morphine every day. She has sued for actual economic losses, including consequential, compensatory, and punitive damages.
In the instant motion, the Defendant requests ex parte interviews health care providers who all worked at the Teller County Jail during Carmody’s detention in October 2014. Also, Defendant would like to interview Carmody’s Orthopaedic providers, and finally, Carmody’s primary care physician. Carmody objects, saying the requests are overly broad, that three of the health care providers will be deposed and, therefore, ex parte interviews are not necessary.
Because this claim arises under federal law, this Court looks to federal, rather than state, law in analyzing whether ex parte interviews of Carmody’s health care providers is permitted. The Parties agree that there is no federal physician-patient privilege.
There is no dispute that Carmody had a preexisting hip condition that caused her pain between 1999 and 2014. Carmody has put any treatment (or lack thereof) that she received at Teller County Detention Center at issue, and she has also waived any applicable privacy rights as to medical information associated with any hip injury,back injury, use of any pain medication, psychological well-being; and physical limitations. Because Carmody has put these facts at issue, this Court finds it is appropriate for the Defendant to get ex parte interviews with the medical employees from Teller, with Court instruction on appropriate questions. The Court found that ex parte interviews with Carmody’s Orthopaedic provider and GP could violate physician-patient privilege.
Therefore, the Defendant may seek ex parte interviews on the following topics: any hip injury, back injury, use and management of any pain medication, psychological well-being; and physical limitations from 2007 to the present from the medical staff from Teller. Defendant must also inform all interviewees the discussions are entirely voluntary and all HIPAA laws will be obeyed.
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