specially concurring.
I agree with the majority that the district court did not err in requiring Mr. Hartmann to answer questions regarding his knowledge of whether Mrs. Hartmann's close family members experienced certain medical conditions. Maj. op. at 52. The majority comes to this conclusion, however, by finding that those close family members waived their physician-patient privilege by telling a third party (presumably either Mr. or Mrs. Hart-mann) about their medical conditions. See id. at 52-58, 58. In my view, it is not necessary to reach the waiver issue because the questions posed to Mr. Hartmann did not implicate the physician-patient privilege in the first instance. I therefore would affirm, on this alternative ground, that portion of the district court's ruling regarding the questions posed to Mr. Hartmann about his knowledge of the health of Mrs. Hartmann's close family members.
The physician-patient privilege protects confidential communications between patients and certain medical providers. § 13-90-107(1)(d), C.R.S. (2006). The questions posed to Mr. Hartmann during the deposition did not fall within the seope of this privilege because he was not asked to reveal such communications. As the majority notes, he was asked whether, to his knowledge, Mrs. Hartmann's close family members had a history of diabetes, clotting conditions, or heart disease. Maj. op. at 47-48. He was not asked to testify about communications that occurred between those close family members and their doctors concerning the treatment of their conditions. Nor was he asked to disclose their medical records that might reveal such communications. The questions posed to Mr. Hartmann simply did not implicate the privilege.
To put it somewhat differently, Mr. Hart-mann was being asked about his knowledge of a factual matter-that is, whether Mrs. Hartmann's close family members suffered from certain medical conditions. Such a factual matter is not protected by the physician-patient privilege. Cf. Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (noting that the attorney-client privilege "only protects disclosure of communications; it does not protect disclosure of the underlying facts. ..."); People v. Trugillo, 144 P.3d 539, 545 (Colo.2006) (noting that statements of fact are not covered by the attorney-client privilege).
Because the physician-patient privilege is not implicated, the framework of Alcon v. Spicer-a case in which the privilege clearly was at issue-is inapplicable. See 113 P.3d 735 (Colo.2005) (holding that the physician-patient privilege protects against the disclosure of a patient's medical records unless waived); maj. op. at 51-52, 58 (applying Alcon).
But the majority's waiver analysis regarding the questions posed about the health of Mrs. Hartmann's close family members is not only unnecessary, it is problematic on its own terms. The majority's theory of the case appears to be that not only did Mrs. Hart-mann waive her physician-patient privilege by placing the cause of her stroke at issue in this litigation, maj. op. at 51, 58, her close family members waived their privileges as well by telling Mr. and/or Mrs. Hartmann about their medical conditions. See id. at 52 (noting that the close family members waived the privilege by "revealing their medical conditions to [Mrs. Hartmann] and/or Mr. Hart-mann"); id. at 58 (finding that the deposition questions were appropriate because they did not ask for any information "beyond that which the family members had previously revealed to Mr. and/or Mrs. Hartmann"); id. (noting that the close family members "impliedly waived their ... privilege"). As an initial matter, this theory is troubling because we have no idea whether such conversations among Mrs. Hartmann, Mr. Hart-mann, and the close family members actually occurred; the record is simply silent on this factual issue.
More importantly, the majority cites no authority for the proposition that a waiver necessarily occurs once someone tells a close family member about an otherwise privileged communication he had with a physician. The majority notes that under Belle Bonfils Memorial Blood Center v. District Court, 763 *56P.2d 1003 (Colo.1988), "[iJnformation a person makes available to a third party outside of the physician-patient privilege is not protected by the physician-patient privilege." Maj. op. at 52-58. That is certainly true as far as it goes; in other words, the communications among Mr. Hartmann, Mrs. Hart, mann, and the close family members, if they occurred, would not themselves be covered by the physician-patient privilege in the first instance, as such communication would not have been made to medical providers. Belle Bonfils, 763 P.2d at 1009 (holding that communications between an individual and an employee of blood bank are not covered by the privilege as employee was not a medical provider). But Belle Bonfils does not support the theory put forward by the majority-namely, that a patient necessarily waives the privilege with regard to an otherwise privileged communication with her medical provider when she tells a close family member about it. Belle Bonfils defines the seope of the privilege in the first instance, not waiver of that privilege.
Finally, the majority implies that the waiver that occurred when Mrs. Hartmann placed the cause of her stroke at issue somehow accomplished a similar waiver for Mrs. Hart-mann's close family members. It states that Mrs. Hartmann "placed her medical condition and, thus, that of her close family for diabetes, heart disease, and elotting conditions at issue," and that "[blecause she has impliedly waived her physician-patient privilege in regard to such information [ie., her medical condition and that of her close family for diabetes, heart disease, and clotting conditions}, it is discoverable." Maj. op. at 51. Plainly, however, Mrs. Hartmann cannot waive the privilege for her close family members; that waiver can only be accomplished by the family members themselves. People v. Palomo, 31 P.3d 879, 885 (Colo.2001).
When, as here, the physician-patient privilege is not implicated, our inquiry is at its end. Because I believe that the majority should have based its affirmance of the district court's order on the fact that the physician-patient privilege was not implicated by the questions posed to Mr. Hartmann, I specially concur.
I am authorized to state that Justice RICE and Justice COATS join in this special concurrence.