In re Bailey v. Hermacinski

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 March 5, 2018
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9 2018 CO 14
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1 No. 17SA20, In Re Bailey v. Hermacinski—Physician–Patient Privilege—Implied
2 Waiver.
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4 In this original proceeding, the supreme court considers the scope of the

5 physician–patient privilege in a medical-malpractice action. Contrary to the conclusion

6 of the trial court, the supreme court holds that the Plaintiffs’ non-party medical

7 providers were not in consultation with Defendants such that the typically-privileged

8 information held by those non-party medical providers was no longer protected by the

9 physician–patient privilege. Therefore, the trial court abused its discretion when it

0 granted Defendants’ request to hold ex parte interviews with those non-party medical

1 providers on consultation grounds. However, the supreme court remands the case to

2 the trial court for consideration of whether the Plaintiffs impliedly waived the

3 protection of the physician–patient privilege such that ex parte interviews may still be

4 permitted.
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3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203

5 2018 CO 14

6 Supreme Court Case No. 17SA20
7 Original Proceeding Pursuant to C.A.R. 21
8 Routt County District Court Case No. 16CV30089
9 Honorable Thomas W. Ossola, Judge

0 In Re
1 Plaintiffs:
2 Kelley Bailey and Michael Bailey,
3 v.
4 Defendants:
5 Mark Hermacinski, M.D.; Leslie Ahlmeyer, M.D.; Mary Bowman, M.D.; and Yampa Valley
6 Medical Center, a non-profit corporation.
7 Rule Made Absolute
8 en banc
9 March 5, 2018
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1 Attorneys for Plaintiffs:
2 Schoenwald & Thompson LLC
3 Julia Thompson
4 Denver, Colorado
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6 Attorneys for Defendants:
7 Jaudon & Avery LLP
8 David H. Yun
9 Jared R. Ellis
0 Denver, Colorado
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2 Attorneys for Amicus Curiae Colorado Defense Lawyers Association:
3 Ruebel & Quillen, LLC
4 Jeffrey Clay Ruebel
5 Casey A. Quillen
6 Westminster, Colorado
1 Attorneys for Amicus Curiae Colorado Medical Society:
2 Conklin Cardone & Rutberg, PC
3 John L. Conklin
4 Amy K. Cardone
5 Denver, Colorado
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7 Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
8 Cross & Bennett, L.L.C.
9 Joseph F. Bennett
0 Colorado Springs, Colorado
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2 Attorneys for Amicus Curiae COPIC Insurance Company:
3 Kittredge LLC
4 Daniel D. Domenico
5 Denver, Colorado
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7 Attorneys for Amicus Curiae Regents of the University of Colorado:
8 Office of University Counsel
9 Patrick T. O’Rourke
0 Denver, Colorado
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1 CHIEF JUSTICE RICE delivered the Opinion of the Court.
2 JUSTICE HART does not participate.

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¶1 In this original proceeding, we consider the scope of the physician–patient

privilege in a medical-malpractice action. Section 13-90-107(1)(d), C.R.S. (2017),

prohibits certain medical providers from revealing, in testimony or otherwise,

information about a patient gathered in the course of treating that patient. That

prohibition, however, is not unlimited. Section 13-90-107(1)(d)(I), for instance, states

that when a patient sues their medical provider, information “arising out of or

connected with” that provider’s treatment of the patient is not protected by the

physician–patient privilege. And section 13-90-107(1)(d)(II) deems information held by

a non-party medical provider who was “in consultation with” a defendant as similarly

outside the protection of the physician–patient privilege.

¶2 In this case, Defendants sought ex parte interviews with a number of non-party

medical providers. Thus, this dispute, as presented to us, does not implicate the

physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants,

meaning section 107(1)(d)(I) is inapplicable. Instead, the issue here is whether the

non-party medical providers were “in consultation with” Defendants such that

section 107(1)(d)(II) removed that typically privileged information from the protection

of the physician–patient privilege. We hold that the non-party medical providers were

not in consultation with Defendants for the purposes of section 107(1)(d)(II). However,

we remand this case to the trial court for consideration of whether Plaintiffs Kelley and

Michael Bailey (“the Baileys”) impliedly waived the physician–patient privilege for the

non-party medical providers. On remand, if the trial court concludes that the Baileys

did waive that privilege, it should reconsider whether there is any risk that (1) ex parte

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interviews with the non-party medical providers would inadvertently reveal residually

privileged information, or (2) Defendants would exert undue influence on the

non-party medical providers in the course of any ex parte interviews.

I. Facts and Procedural History

¶3 In March 2014, Bailey underwent a hysterectomy performed by Doctor Ellis. In

July 2014, Bailey visited Defendant Yampa Valley Medical Center (“Yampa”) reporting

abdominal pain. A CT scan revealed accumulated fluid that medical professionals at

Yampa believed to be related to the March 2014 surgery. Bailey then underwent

surgery performed by Defendants Doctor Ahlmeyer and Doctor Hermacinski. The

Yampa doctors removed Bailey’s appendix, several adhesions from the hysterectomy,

and her right ovary due to a ruptured ovarian cyst.

¶4 Two days after Bailey was discharged from Yampa, Doctor Ellis referred her to

Craig Memorial Hospital (“Craig”) after she reported abdominal pain, nausea,

vomiting, and chills. Doctors at Craig determined that Bailey was suffering from a

perforated bowel. Bailey then underwent emergency surgery at Craig to repair the

perforation. Bailey remained there for nearly a month and went through a number of

abdominal washouts as a result of the perforation, and she has received repeated

follow-up care from a number of doctors at Craig (“the Craig treaters”). About a month

after her release from Craig, Bailey went to a third hospital, St. Mary’s Medical Center,

due to significant nausea and vomiting. There, she was treated by two doctors (“the St.

Mary’s treaters”).

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¶5 In 2016, the Baileys sued Doctor Ahlmeyer, Doctor Hermacinski, Doctor

Bowman, and Yampa (“Defendants”) alleging that their negligence led to significant

harm and subsequent medical expenses.

¶6 During discovery, Yampa produced hundreds of pages of Bailey’s medical

records covering her July 2014 treatment. For their part, as relevant here, the Baileys

produced portions of Bailey’s medical records from the care she received at Craig

Memorial Hospital, St. Mary’s Medical Center, and the offices of two other doctors.

However, the Baileys withheld portions of those records, 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, including four Yampa doctors, the Craig treaters, and the

St. Mary’s treaters. The Baileys did not object to Defendants’ request to interview the

Yampa doctors, except that any interview with Doctor Thompson be limited to certain

topics. However, the Baileys did object to Defendants’ request to conduct ex parte

interviews of the Craig and St. Mary’s treaters.

¶7 In a two-page order, the trial court approved Defendants’ request for ex parte

interviews with the Craig and St. Mary’s treaters, finding that those treaters were

“engaged in a unified course of treatment in that they were only treating [Bailey] for

complaints and conditions arising out of the original alleged acts of negligence.” As a

result, the trial court continued, the Craig and St. Mary’s treaters were “in consultation

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with” Defendants “sufficient to give rise to a waiver of the physician–patient privilege.”

The court also concluded that there was “little to no risk” of the existence of residually

privileged information being disclosed as a result of the ex parte interviews. Finally,

the court stated that it was “unconvinced that there is a significant risk of undue

influence on the subsequent treating physicians by ex parte interviews with defense

counsel.” The Baileys then petitioned this court under C.A.R. 21 asking us to vacate the

trial court’s order granting the requested ex parte interviews with the Craig and St.

Mary’s treaters.1 We issued a rule to show cause. We now make the rule absolute and

remand for further proceedings consistent with this opinion.

II. Standard of Review

¶8 Relief from a trial court’s discovery order under C.A.R. 21 is appropriate only

where “the normal appellate process would prove inadequate.” In Re

P.W. v. Children’s Hosp., 2016 CO 6, ¶ 12, 364 P.3d 891, 895 (quoting Warden v.

Exempla, Inc., 2012 CO 74, ¶ 16, 291 P.3d 30, 34). “When a trial court’s order involves

records which a party claims are protected by a statutory privilege, as here, an

immediate review is appropriate because the damage that could result from disclosure

would occur regardless of the ultimate outcome on appeal from a final judgment.”

Ortega v. Colorado Permanente Group, P.C., 265 P.3d 444, 447 (Colo. 2011) (citing Clark

1As stated above, Defendants did not object before the trial court to the Baileys’ use of
privilege logs to protect the alleged residually privileged information held by the Craig
and St. Mary’s treaters, nor did the trial court make any ruling regarding the sufficiency
or deficiency of those privilege logs. Therefore, the only issue before us is the validity
of the trial court’s order granting Defendants’ request for ex parte interviews with the
Craig and St. Mary’s treaters.

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v. Dist. Court, 668 P.2d 3, 7 (Colo. 1983)). Therefore, we now invoke our original

jurisdiction under C.A.R. 21 to review the trial court’s order to protect from the possible

irreparable harm that would occur from an unwarranted disclosure of Bailey’s medical

information. In reviewing a discovery ruling under C.A.R. 21, we review a trial court’s

decision for an abuse of discretion. Id. (citing Cardenas v. Jerath, 180 P.3d 415, 420

(Colo. 2008)).

III. Analysis

¶9 C.R.C.P. 26 governs the general rules of discovery in a civil proceeding. The

rules outlined in C.R.C.P. 26 are intended to eliminate surprise at trial, enable the

parties to discover relevant evidence, and promote the settlement of cases in an efficient

manner. Cardenas, 180 P.3d at 420. C.R.C.P. 26(b)(1) establishes a broad scope for

discovery, allowing discovery of “any matter, not privileged, that is relevant to the

claim or defense of any party and proportional to the needs of the case.” In this case,

we are required to consider the primary narrowing element of that rule: privileged

matter.

¶10 In a brief order, the trial court concluded that the Baileys could not assert the

physician–patient privilege with regard to the non-party Craig and St. Mary’s treaters

because those treaters were “in consultation with” Defendants such that the privilege

was removed under section 107(1)(d)(II).2 We disagree. Relying on our decision in

Reutter v. Weber, 179 P.3d 977 (Colo. 2007), we hold that section 107(1)(d)(II) did not

2Section 13-90-107(1)(d)(I) is clearly not applicable to the Craig and St. Mary’s treaters
as none of those medical providers are defendants in this matter.

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remove Bailey’s communications with the Craig and St. Mary’s treaters from the

protection of the physician–patient privilege. However, it is possible that the Baileys

impliedly waived their claim of physician–patient privilege under the implied waiver

doctrine. Accordingly, we vacate the trial court’s order allowing ex parte interviews

with the Craig and St. Mary’s treaters, and we remand this matter to the trial court to

consider whether the Baileys impliedly waived the physician–patient privilege for those

treaters. On remand, if the trial court concludes that the Baileys did impliedly waive

their physician–patient privilege with regard to the Craig and St. Mary’s treaters and is

still inclined to permit ex parte interviews of those treaters, the trial court should

reevaluate whether it needs to take any measures to (1) protect residually privileged

information held by those treaters and (2) ensure that Defendants do not exert undue

influence over those treaters during the ex parte interviews.

A. The Consultation Exception to the Physician–Patient
Privilege

¶11 In granting Defendants’ request to conduct ex parte interviews with the Craig

and St. Mary’s treaters, the trial court concluded that those treaters were “in

consultation with” Defendants because the Craig and St. Mary’s treaters were engaged

in a “uniform course of treatment” with Defendants.3 If the Craig and St. Mary’s

treaters were in consultation with Defendants, then, under section 107(1)(d)(II), Bailey’s

communications with them would not be protected by the physician–patient privilege.

3 The trial court order seems to straddle the divide between founding its conclusion on
the statutory exception to the physician–patient privilege in section 107(1)(d)(II) and the
implied waiver doctrine. However, we view the order as an application of section
107(1)(d)(II), not the implied waiver doctrine.

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We addressed this precise statutory provision in Reutter, 179 P.3d at 978–79, which the

Baileys and various amici curiae now urge us to rework. We decline that invitation and

instead conclude that, under the framework established in Reutter, the Craig and St.

Mary’s treaters were not in consultation with Defendants for the purposes of

section 107(1)(d)(II). As a result, all of Bailey’s communications with those non-party

medical providers are privileged, unless Bailey consented to their disclosure.

¶12 The proponent of a claim of privilege bears the burden of establishing that the

privilege applies. Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005). Consequently,

because section 107(1)(d)(II) excepts normally privileged information from the scope of

the statutory physician–patient privilege, the proponent of a claim of privilege must

establish that the exception itself is inapplicable. Reutter, 179 P.3d at 981.

¶13 In Reutter, we considered the meaning of the phrase “in consultation with” in

section 107(1)(d)(II) for the first time. Id. We rejected the narrow reading proposed by

the plaintiffs in that case, which would have had us read the term to include medical

providers who only offer advice, but not those who both offer advice and treat the

plaintiff–patient. Id. That said, we did not read section 107(1)(d)(II) to be so broad as to

include all future medical providers of a plaintiff. See id. Instead, we determined that

section 107(1)(d)(II) recognizes that medicine is not practiced alone but is, in many

cases, practiced in a collaborative fashion with other practitioners. Id. (“While one

physician might be the primary medical provider, other medical providers typically

play a role in the patient’s treatment.”). As a result, we held that a non-party medical

provider is in consultation with the defendant medical provider for the purposes of

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section 107(1)(d)(II) if the party and non-party providers “collectively and

collaboratively assess and act for a patient by providing a unified course of medical

treatment.” Id. Applying that standard, we concluded that the non-party medical

providers were in consultation with the defendant medical providers because of the

particularly integrated care that the plaintiff received from both the defendant and

non-party medical providers. See id. at 981–82. Specifically, we noted that the

non-party medical providers were employed by the same facility as the defendant

medical providers, and that all care was provided over just a few days while the

plaintiff was being treated at that single facility. Id. at 979.

¶14 Here, the trial court concluded that the Craig and St. Mary’s treaters were

engaged in a uniform course of treatment of Bailey along with Defendants—and were

therefore “in consultation with” them—because the Craig and St. Mary’s treaters had

provided treatment only “for complaints and conditions arising out of the original

alleged acts of negligence.” However, that conclusion misstates the inquiry. Instead, as

we outlined in Reutter, a non-party medical provider is in consultation with a

defendant medical provider when they provide care “collectively and collaboratively.”

Id. at 981.

¶15 In this case, the Craig and St. Mary’s treaters provided no collective or

collaborative care with Defendants. There was no exchange of medical records. There

was 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, we cannot conclude that the non-party medical providers

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acted in such a collective and collaborative way as to be considered in consultation with

the Defendant medical providers. We hold that the Craig and St. Mary’s treaters were

not in consultation with Defendants and, as a result, Bailey’s communications with the

Craig and St. Mary’s treaters are privileged unless she consented to their disclosure.

Consequently, the trial court abused its discretion when it authorized Defendants to

conduct ex parte interviews with the Craig and St. Mary’s treaters on the grounds that

section 107(1)(d)(II) rendered Bailey’s communications with those treaters outside the

protections of the physician–patient privilege.

B. Implied Waiver

¶16 Although we conclude that the Craig and St. Mary’s treaters were not in

consultation with Defendants, therefore making section 107(1)(d)(II) inapplicable, the

Baileys may still have impliedly waived the protection of the physician–patient

privilege as it pertains to information relevant to the Baileys’ claimed medical

malpractice.

¶17 Before reaching our discussion of implied waiver, however, we briefly clarify our

decision in Ortega. In Ortega, we stated in a footnote that “cases that arise in the

medical malpractice context invoke section 107(1)(d)(I)’s statutory exception to the

physician–patient privilege rather than the implied waiver doctrine.” 265 P.3d at 448

n.1. That statement does not control our decision today. Ortega primarily involved the

application of section 107(1)(d)(I) in the context of a dispute regarding the information

held by a defendant medical provider. 265 P.3d at 446–47. In this case, however, the

dispute arises with regard to non-party medical providers and the relationship those

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non-party medical providers had with Bailey. Therefore, notwithstanding our decision

in Ortega, a plaintiff may still impliedly waive the physician–patient privilege as it

applies to information held by a non-party medical provider.

¶18 More broadly, a patient may consent to the disclosure of information normally

protected by the physician–patient privilege. Clark, 668 P.2d at 8. We have held that

consent may be given explicitly, but also implicitly through an implied waiver of the

privilege. Samms v. Dist. Court, 908 P.2d 520, 524 (Colo. 1995) (citing Clark, 668 P.2d at

10) (“[I]mplied waiver constitutes consent for purposes of section 13-90-107(1)(d).”).

The implied waiver doctrine is rooted in 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. Specifically, “a plaintiff in a personal injury case

impliedly waives the physician–patient privilege with respect to matters known to the

physician that are relevant in determining the cause and extent of injuries which form

the basis for a claim for relief.” Id. at 525 (citing Clark, 668 P.2d at 10). Because an

implied waiver determination necessarily depends on the nature and extent of a

particular and unique mental or physical condition, we have repeatedly recognized that

such a determination will vary on a case-by-case basis. E.g., id. Importantly, an

implied waiver covers only the extent and context of the condition and the subsequent

damages that form the basis of the claim for relief; it does not amount to a general

disclosure of the patient’s entire relationship with the physician in question. Alcon, 113

P.3d at 739.

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¶19 As stated previously, the party asserting protection from a privilege bears the

burden of establishing the applicability of that privilege. Id. However, in the implied

waiver context, once the privilege has been established, the party arguing for a finding

of implied waiver must carry the burden of showing that waiver. Id.

¶20 Here, Defendants assert that the trial court’s statement that the non-party

medical providers had “only treat[ed] [Bailey] for complaints and conditions arising out

of the original alleged acts of negligence” amounted to a finding of implied waiver.

However, that statement is couched in the trial court’s conclusion that the Craig and St.

Mary’s treaters were engaged in a “unified course of treatment” with Defendants; thus,

the trial court’s decision rested on section 107(1)(d)(II), not implied waiver. Because it is

unclear from the record before us whether the Baileys impliedly waived their

physician–patient privilege with regard to the Craig and St. Mary’s treaters, we remand

this case to the trial court for a determination of that issue.

¶21 On remand, if the trial court finds that the Baileys did impliedly waive the

physician–patient privilege, the trial court should, prior to granting Defendants’ request

for ex parte interviews, determine whether it needs to institute any measures to (1)

protect against inadvertent discovery of residually privileged information held by the

Craig and St. Mary’s treaters, and (2) ensure that the non-party medical providers are

not subject to undue influence in the course of those ex parte interviews.

IV. Conclusion

¶22 Because the Craig and St. Mary’s treaters were not in consultation with

Defendants, the trial court abused its discretion in concluding under

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section 107(1)(d)(II) that Bailey’s communications with those treaters were not protected

by the physician–patient privilege. However, the trial court should consider on remand

whether the Baileys waived that privilege under the implied waiver doctrine. If the

trial court finds that the Baileys did impliedly waive their physician–patient privilege as

it pertains to the Craig and St. Mary’s treaters, the trial court should also reconsider

whether there is a risk of residually privileged information being disclosed during the

ex parte interviews and whether the Craig and St. Mary’s treaters could be subject to

undue influence during those ex parte interviews. Accordingly, we make our rule to

show cause absolute and remand this case to the trial court for further proceedings

consistent with this opinion.

JUSTICE HART does not participate.

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