August 20, 2018

Colorado Supreme Court: Only Privilege-Holder Can Waive Physician-Patient Privilege, and Only By Injecting Condition Into Case

The Colorado Supreme Court issued its opinion in Gadeco, LLC v. Grynberg on Monday, April 9, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered whether the trial court abused its discretion when it found that defendant impliedly waived the physician-patient privilege as to his mental health records by asserting counterclaims for breach of contract, requesting specific performance, and denying the opposing parties’ allegations. The court affirmed its rule that only privilege holders—patients—can impliedly waive the physician-patient privilege, and they do so by injecting their physical or mental condition into the case as the basis of a claim or an affirmative defense. Correspondingly, an adverse party cannot place a patient’s mental condition at issue through its defenses, nor can a privilege holder do so by denying an adverse party’s allegations. Applying those rules, the court held that defendant did not waive the physician-patient privilege through his counterclaims or answer. The court concluded that the trial court abused its discretion by ordering defendant to produce his medical records for in camera review and made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

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.

Colorado Court of Appeals: Cost of Installing Bars on Victim’s Window Improperly Assigned as Restitution

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, April 9, 2015.

Identification—Physician–Patient Privilege—Restitution.

The victim awoke one morning to a noise outside her second-floor bedroom. She walked to the bathroom and saw a man standing on her roof, trying to enter the bathroom window. Seeing the victim, the man ran away. Defendant was found by police hiding in a row of bushes near the victim’s house, and the victim positively identified defendant at the scene as the person who attempted to enter her residence. Defendant was convicted of attempted first-degree criminal trespass, third-degree criminal trespass, and criminal mischief

On appeal, defendant claimed that the district court erred when it admitted evidence that the victim previously identified him as the man she saw in her window and allowed her to identify him again at trial. “One-on-one show-ups” are disfavored because they tend to be suggestive, but they are not per se invalid. Here, the victim had a good opportunity to view defendant trying to enter her residence, she described defendant to the police when they arrived at the scene, she immediately identified defendant when the police presented him to the victim at the scene, and the police did not make any suggestive comments during the procedure. Therefore, the district court did not err in denying defendant’s motion to suppress the identification evidence.

Defendant argued that the district court erred when it allowed Dr. Stafford, the physician who treated defendant at the hospital that evening for a fractured right heel, to testify because defendant had not waived the physician-patient privilege. A physician who treats an injury that he has reason to believe involves a criminal act has a duty to report the injury to the police, which abrogates the privilege as to the medical examination and diagnosis, but not as to any statements made by the patient. Dr. Stafford had reason to believe defendant’s injury involved a criminal act. In addition, his testimony was limited to his examination and diagnosis and he did not disclose any statements defendant made in the course of his treatment. Therefore, Dr. Stafford’s testimony fell within the exception created by the reporting statute.

Defendant further argued that the district court erred when it ordered restitution of $489 for the cost of installing bars on the victim’s bathroom window because there was no showing that his conduct proximately caused the expense. Expenses resulting from a general feeling of insecurity are too attenuated to qualify as restitution. Here, the court failed to find that the expense of installing bars was the result of a specific, ongoing threat related to defendant’s conduct as opposed to a general feeling of insecurity. Therefore, this part of the restitution order was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Physician’s Prescription Order Falls Within Exception to Physician-Patient Privilege

The Colorado Court of Appeals issued its opinion in People v. Moon on Thursday, March 12, 2015.

Prescription—Physician–Patient Privilege—CRS § 18-18-415(1)(b)—Juror.

A doctor wrote Moon a prescription order for six Vicodin pills. Moon later gave a pharmacy a prescription order for sixty Vicodin pills. A pharmacist called the doctor, who said that he had prescribed six pills, not sixty. At trial, Moon testified that she received a prescription order from the doctor and gave it to the pharmacy, but she denied altering it.

On appeal, Moon contended that the trial court erroneously allowed her doctor to reveal information at trial that was protected by Colorado’s physician–patient privilege. The doctor testified that he wrote two prescription orders for Moon, one for antibiotic eyedrops and the other for six extra-strength Vicodin pills. The court also admitted copies of the two original prescription orders contained in Moon’s medical records. This evidence was not privileged in light of CRS § 18-18-415(1)(b)’s statutory exception to privileged communications for persons who alter an order in an attempt to obtain a controlled substance by fraud or deceit.

Moon also contended that the trial court abused its discretion in denying her request to excuse a juror who revealed during trial that she knew the pharmacist. The pharmacist had filled the juror’s prescriptions. The juror’s relationship with the pharmacist was not ongoing and she said that she could be fair and impartial despite knowing the pharmacist. Therefore, the court was not required to dismiss her. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.