June 23, 2018

Colorado Supreme Court: Physician-Patient Privilege Bars Defendants from Consulting Ex Parte with Non-Party Witnesses

The Colorado Supreme Court issued its opinion in In re Bailey v. Hermacinski on Monday, March 5, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered the scope of the physician-patient privilege in a medical malpractice action. Contrary to the conclusion of the trial court, the court held that plaintiffs’ non-party medical providers were not in consultation with defendants such that the typically privileged information held by those non-party medical providers was no longer protected by the physician-patient privilege. Therefore, the trial court abused its discretion when it granted defendants’ request to hold ex parte interviews with those non-party medical providers on consultation grounds. However, the court remanded the case to the trial court for consideration of whether plaintiffs impliedly waived the protection of the physician-patient privilege such that ex parte interviews may still be permitted.

Summary provided courtesy of Colorado Lawyer.

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