In re Bailey v. Hermacinski

Summary

The Colorado Supreme Court considered whether non-party medical providers were "in consultation with" defendants under the physician–patient privilege statute, permitting ex parte interviews in a medical-malpractice action. The court held that the providers were not in consultation with defendants because they had not collectively or collaboratively provided care, and therefore the privilege remained applicable absent consent or waiver. The court made its rule to show cause absolute and remanded for consideration of implied waiver and safeguards against disclosure of residually privileged information or undue influence.

Holdings

1. Non-party medical providers are 'in consultation with' defendant medical providers only when they collectively and collaboratively assess and act for the patient by providing a unified course of medical treatment. The Craig and St. Mary's providers did not meet that standard because there was no exchange of medical records, discussion of diagnoses or treatment options, or other communication with the defendants.
2. The court did not decide whether the Baileys impliedly waived the privilege. It remanded for the trial court to determine that issue because the existing order rested on the consultation exception rather than a finding of implied waiver.
3. Immediate original-jurisdiction review was appropriate because disclosure of allegedly privileged medical information could cause irreparable harm regardless of the ultimate outcome of an appeal from final judgment.

Questions Presented

1. Whether non-party medical providers who treated Bailey after the defendants' treatment were 'in consultation with' the defendants under section 13-90-107(1)(d)(II), thereby removing Bailey's communications with those providers from the physician-patient privilege.
2. Whether the Baileys may have impliedly waived the physician-patient privilege as to relevant information held by the non-party providers.
3. Whether the trial court's order authorizing ex parte interviews should be reviewed and vacated through an original proceeding under C.A.R. 21.

Disposition

remanded