2025 CO 23
In Re Lucas Trenshaw and Theresa Gardner, as Personal Representative for the Estate of Timothy Trenshaw, Plaintiffs
v.
Eugene Jennings and All State Enterprise, Inc. Defendants
No. 24SA262
Supreme Court of Colorado, En Banc
May 12, 2025
Original Proceeding Pursuant to C.A.R. 21 Custer County
District Court Case No. 22CV30013 Honorable Lynette Mary
Wenner, Judge
Attorneys for Plaintiffs: Bachus & Schanker, LLC J. Kyle
Bachus Denver, Colorado
Attorneys for Defendant Eugene Jennings: Gordon Rees Scully
Mansukhani LLP John R. Mann Andrew K. Lavin Andres M.
Hermosillo Denver, Colorado
2
Womble
Bond Dickinson (US) LLP Kendra N. Beckwith Nathan B. Thoreson
Denver, Colorado
Attorneys for Respondent Custer County District Court: Philip
J. Weiser, Attorney General Peter G. Baumann, Assistant
Solicitor General Denver, Colorado
No
appearance on behalf of: All State Enterprise, Inc.
JUSTICE SAMOUR delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER
joined.
3
Order
Made Absolute
OPINION
SAMOUR
JUSTICE
¶1
"What I may see or hear in the course of the treatment .
. . in regard to the life of men, which on no account one
must spread abroad, I will keep to myself[,] holding such
things shameful to be spoken about." Ludwig Edelstein,
The Hippocratic Oath: Text, Translation and
Interpretation, in 1 Supplements to the
Bulletin of the History of Medicine (Henry E. Sigerist ed.,
Johns Hopkins Press 1943) (providing a translation from the
Greek). This excerpt from the ancient version of the
Hippocratic Oath highlights the importance of the special
relationship between physicians and their patients. In re
Vioxx Prods. Liab. Litig., 230 F.R.D. 473, 476 (E.D. La.
2005). The physician-patient relationship has historically
been one of the most sacrosanct and protected relationships
throughout the globe. Id. Today, upon graduation,
most medical students in the United States take a
contemporary version of the Hippocratic Oath, declaring that
they "will respect the privacy of [their] patients, for
their [patients'] problems are not disclosed to [them]
that the world may know." Id. at 476 n.8.
¶2
The principles underlying the Hippocratic Oath were
introduced into this country in the 1800s through a code of
ethics, but they are now largely incorporated into state law.
Id. at 476-77. In Colorado, our General Assembly has
recognized that "[t]here are particular relations in
which it is the policy of the law to encourage confidence and
to preserve it inviolate." § 13-90-107(1), C.R.S.
(2024).
4
The physician-patient relationship is one of those. §
13-90-107(1)(d). Therefore, "[a] physician . . . shall
not be examined without the consent of his or her patient as
to any information acquired in attending the patient that was
necessary to enable him or her to prescribe or act for the
patient." Id. Such information is protected by
what we now call the physician-patient privilege.
¶3
The physician-patient privilege applies as forcefully to
pretrial discovery as it does to in-court testimony. See
Cardenas v. Jerath, 180 P.3d 415, 424 (Colo. 2008).
Thus, the privilege protects certain information even if it
would otherwise be discoverable as relevant to the subject
matter of the litigation. Id.
¶4
In this original proceeding, we must determine whether
medical records generated during Eugene Jennings's visit
to a hospital's emergency department, following a motor
vehicle collision during which he was injured, are protected
under the physician-patient privilege. The district court
reviewed a screenshot of a portion of those records in
camera. It then undertook a sentence-by-sentence analysis of
five particular sentences to determine whether the
information in each sentence was privileged. Despite finding
that Jennings provided the information in question to his
emergency department physician while describing how he
sustained the injuries for which he was being treated, the
court concluded that the information was not protected by the
physician-patient privilege. Specifically, the court ruled
that the information provided by Jennings about how the
collision
5
occurred was not "necessary for the medical team to act
or prescribe on" his behalf and thus fell outside the
scope of the privilege.
¶5
We now make absolute the order we issued to show cause. We
hold that when, as here, medical records contain information
provided by a patient to a physician during the course of
receiving treatment for an injury, the records are protected
by the physician-patient privilege. Such documents fall
within the purview of section 13-90-107(1)(d) because they
contain information "that was necessary to enable [a
treating physician] to prescribe or act for the
patient." § 13-90-107(1)(d).
¶6
We recognize that the information shared by a patient with a
treating physician may include facts about the underlying
incident that led to the injury sustained. Indeed, in
describing how he was injured to his emergency department
physician, Jennings provided details about the collision. Of
course, Jennings could not immunize from disclosure relevant
facts about the collision by simply disclosing them to his
emergency department physician or anyone else with whom he
may have had a confidential relationship. Those facts are
discoverable, including through interrogatories, requests for
admission, and at a deposition. But the medical records
themselves are privileged because they contain Jennings's
communications with his emergency department
physician about how he sustained
6
his injuries, and those communications were pertinent to the
treatment provided by the physician.
¶7
As such, the district court should not have reviewed (even in
camera) the screenshot of a portion of Jennings's medical
records, much less conducted a sentence-by-sentence analysis
of a handful of sentences to determine whether the
information in each sentence was necessary for Jennings's
emergency department physician to prescribe or act on his
behalf. A standard that would only protect information in
medical records that a court, in hindsight, concludes was
necessary for a physician to have acted or prescribed on
behalf of a patient flies in the face of our jurisprudence
and is, in any event, infeasible.
I.
Facts and Procedural History
¶8
Late one afternoon, Jennings was driving a tractor-trailer
truck for his employer, All State Enterprise, Inc. ("All
State"), in Custer County. As he negotiated a curve on
Highway 69, his truck flipped over and crushed the vehicle in
the oncoming lane driven by Timothy Trenshaw, killing him
instantly. Paramedics and Colorado State Patrol
("CSP") troopers contacted Jennings at the scene of
the collision. He did not exhibit signs of intoxication, but
the troopers nevertheless detained him for investigation.
Because Jennings reported that he was injured, the troopers
eventually transported him to Parkview Hospital.
7
¶9
During the course of receiving medical treatment from an
emergency department physician at the hospital, Jennings
discussed how he was injured. As he did so, he made
statements describing how the collision occurred. The
emergency department physician documented these statements.
¶10
Thereafter, CSP allegedly collected some of Jennings's
medical records from the hospital without Jennings's
knowledge or consent and without a warrant. A trooper then
transported Jennings to a Colorado Bureau of Investigations
office before releasing him in a convenience store parking
lot. The same trooper subsequently took all the records and
reports related to the incident (including the medical
records collected from the hospital), scanned them, and sent
them to Master Trooper David Conway.
¶11
Approximately one month later, Master Trooper Conway applied
for a search warrant to obtain a complete copy of
Jennings's medical records from Parkview Hospital.
Although Master Trooper Conway had stated in his report that
Jennings didn't show any signs of impairment, he attested
in the affidavit in support of the search warrant that he was
trying to verify the presence or absence of narcotic
analgesics in Jennings's system. The district court
approved the search warrant and required the production of
all of Jennings's medical records from his visit to
Parkview Hospital (not just those related to alcohol and drug
testing). Parkview Hospital, in turn, produced all the
requested records to CSP.
8
¶12
The district attorney's office for the Eleventh Judicial
District ("district attorney's office")
ultimately charged Jennings with one count of vehicular
homicide and two counts of careless driving resulting in
injury. Further, Trenshaw's sister (in her capacity as
personal representative of Trenshaw's estate) and
Trenshaw's son (collectively, "Plaintiffs")
sued Jennings and All State in this wrongful death action.
After this case was filed, Plaintiffs served Jennings with
written discovery requests inquiring how the collision
occurred and requesting any statements Jennings and all other
witnesses had made about the collision. Thereafter, Jennings
served a request on the district attorney's office,
pursuant to Colorado's Open Records Act and
Colorado's Criminal Justice Records Act, seeking all
communications between that office and Plaintiffs'
counsel. According to Jennings, the district attorney's
office responded by producing, among other things, the
medical records from his visit to Parkview Hospital. Two
business days later, Jennings notified Plaintiffs and the
district attorney's office that he had "never waived
his privilege to the medical records." He expressed
concern that his medical records had been improperly acquired
and disseminated, and he requested that those records not be
further disclosed.
¶13
Because the district attorney's office's response
indicated that the physician-patient privilege does not apply
to district attorneys and that it was thus free to share the
medical records with "other lawyers involved in
litigating this
9
matter," and because he viewed Plaintiffs' response
as ambiguous, Jennings filed a motion for a protective order.
The district court, which is presiding over both this case
and the criminal case, granted the motion.
¶14
First, the court found that Plaintiffs had failed to show the
relevance of the medical records. More specifically, it noted
that there did not appear to be a basis for alleging that
Jennings was impaired by drugs or alcohol at the time of the
collision. Second, the court concluded that the authority
cited by Jennings supported his position that "the
medical records are privileged" under section
13-90-107(1)(d) and that "the privilege is not overborne
by the fact that the records were disclosed" without his
permission to the district attorney's office. And third,
the court noted that no authority supported Plaintiffs'
contention that an "order for a warrant entitle[d] a
third party (i.e.[,] Plaintiff[s]) to receive the fruits of
the search." Given that Jennings had not waived his
physician-patient privilege, the court (1) prohibited
Plaintiffs from possessing Jennings's "medical
records or any reports that rely upon them," (2) ordered
Plaintiffs to destroy any copies of Jennings's medical
records in their possession, and (3) precluded Plaintiffs
from engaging in further efforts to obtain those records.
¶15
Thereafter, Plaintiffs obtained from the district
attorney's office a police report containing a screenshot
of a portion of the medical records: the emergency department
physician's notes summarizing Jennings's past
"medical history" and
10
"present symptoms," which included Jennings's
description of how the collision occurred. Jennings sought
the district court's intervention again, arguing that
this constituted a violation of the protective order.
Plaintiffs disagreed, countering that the police report was
publicly available.
¶16
During a hearing closed to the public, Plaintiffs maintained
that five sentences in the emergency department
physician's notes summarizing Jennings's description
of the collision (the "five sentences") were not
privileged. According to Plaintiffs, the five sentences
documented statements made by Jennings that were "not
medically relevant" because, in their view, those
sentences were "not necessary to enable the
[hospital's] medical practitioner to prescribe or
act" for him. Plaintiffs asked the court to rule that
they could make use of the five sentences in this litigation.
Jennings, for his part, insisted that his medical
records-including the portion reflected in the screenshot
within the police report-were privileged regardless of
whether they contained statements about how the collision
occurred.
¶17
A few weeks after the hearing, the court received from
Plaintiffs the police report containing the screenshot of a
portion of Jennings's medical records. The court then
performed an in camera review. Pursuant to Plaintiffs'
request, the court focused on the five sentences. It
undertook a sentence-by-sentence analysis to determine
whether the information in each sentence was required to
permit the
11
emergency department physician to prescribe or act on
Jennings's behalf. The court determined that, while the
five sentences reflected statements uttered by Jennings about
the "injuries resulting from the accident," they
described how the collision occurred and were thus "not
necessary for the medical team to act or prescribe on [his]
behalf." Accordingly, the court (1) ruled that Jennings
had failed to make "an adequate showing" that these
statements were protected by the physician-patient privilege,
(2) dissolved the protective order, and (3) required Jennings
to disclose "the portion[] of the medical records
containing only the [five] statements."
¶18
Jennings then invoked our original jurisdiction through a
C.A.R. 21 petition, arguing that the medical records
generated by Parkview Hospital are privileged and the
district court thus shouldn't have reviewed (even in
camera) the screenshot of a portion of those
records.[1] We issued an order to show cause.
12
II.
Original Jurisdiction
¶19
We have sole discretion to exercise our original jurisdiction
pursuant to C.A.R. 21. Rademacher v. Greschler, 2020
CO 4, ¶ 20, 455 P.3d 769, 772. Relief under C.A.R. 21 is
extraordinary and is limited both in purpose and
availability. Id.
¶20
Discovery orders are generally interlocutory in nature and
thus reviewable only on direct appeal following entry of a
final judgment. Jordan v. Terumo BCT, Inc., 2024 CO
38, ¶ 23, 550 P.3d 628, 633. Consequently, we "will
not ordinarily" exercise our original jurisdiction to
"review a trial court's pretrial discovery
order." Ortega v. Colo. Permanente Grp., P.C.,
265 P.3d 444, 447 (Colo. 2011). However, we have previously
exercised our discretion under C.A.R. 21 to review a trial
court's discovery order in circumstances in which no
other appellate remedy is adequate because, absent our
intervention, a party may suffer irreparable harm.
Id. "When a trial court's order involves
records which a party claims are protected by a statutory
privilege, . . . an immediate review is appropriate because
the damage that could result from disclosure would occur
regardless of the ultimate outcome of an appeal from a final
judgment." Id.
¶21
The exercise of our original jurisdiction under C.A.R. 21 is
warranted in this case given "the nature of the rights
implicated and the potential irreparable harm from disclosure
of medical information." Id. Were we to deny
Jennings's C.A.R. 21 petition, it would render his
privilege claim effectively moot because the
13
order under challenge grants Plaintiffs access to some of the
contents of his medical records. And, as the saying goes,
once the cat's out of the bag, it can't be put back
in.
¶22
Having explained why we granted Jennings's C.A.R. 21
petition, we move on to address the merits of the
parties' contentions. In the process, we explain why we
make absolute the order we issued to show cause.
III.
Analysis
¶23
We begin by setting forth the standard of review that guides
our analysis. We then discuss the legal principles
undergirding the physician-patient privilege in Colorado.
Next, we consider Jennings's claim and conclude that the
medical records in question (including the portion reflected
in the screenshot within the police report) are protected by
the physician-patient privilege. We end by rejecting the
waiver contention advanced by Plaintiffs.
A.
Standard of Review
¶24
We generally review a trial court's discovery order
concerning privilege for an abuse of discretion.
Jordan, ¶ 26, 550 P.3d at 633. However, in this
case, we deal with the interpretation of a statute, which
presents a legal question subject to de novo review.
Miller v. Amos, 2024 CO 11, ¶ 11, 543 P.3d 393,
396. Because the physician-patient privilege is statutory, we
review a trial court's application of the privilege de
novo. See People v. Kailey, 2014 CO 50, ¶ 12,
333 P.3d 89, 93 (making
14
this point in the context of the psychologist-patient
privilege, which also resides in section 13-90-107). Hence,
our review is de novo.
B.
The Physician-Patient Privilege in Colorado -Legal
Principles
¶25
Our General Assembly adopted the physician-patient privilege
"to encourage a patient to make full disclosure to a
doctor to enhance the effective diagnosis and treatment of
illness." Hartmann v. Nordin, 147 P.3d 43, 53
(Colo. 2006). The privilege aims to accomplish this goal
"by protecting the patient from the embarrassment and
humiliation that might be caused" through the disclosure
of information obtained by the physician during the course of
treatment. Clark v. Dist. Ct., 668 P.2d 3, 8 (Colo.
1983). Through the physician-patient privilege, a patient is
vested with the power to prevent the disclosure of such
information. Weil v. Dillon Cos., 109 P.3d 127, 129
(Colo. 2005). As we stated in Alcon v. Spicer, 113
P.3d 735, 738 (Colo. 2005), the privilege may be viewed
"as recognizing the inherent importance of privacy in
the physician[-]patient relationship by protecting the
confidences once made." Interfering with the
physician-patient relationship would not only be unfair to
the patient, who has provided information in confidence, it
could also adversely affect the quality of medical care
available. In re Vioxx Prods. Liab. Litig., 230
F.R.D. at 477.
¶26
The privilege isn't limited to communications with a
physician during an examination conducted for purposes of
treatment; it also includes observations
15
made by a physician during such an examination. People v.
Covington, 19 P.3d 15, 19 (Colo. 2001). Further, the
protection provided by the privilege extends beyond
"in-court testimony" and sweeps in the
"pretrial discovery of information." Hoffman v.
Brookfield Republic, Inc., 87 P.3d 858, 861 (Colo.
2004). This includes discovery of privileged information
contained in medical records. See Clark, 668 P.2d at
11.
¶27
The burden of establishing the applicability of a privilege
rests with the party asserting it. Hartmann, 147
P.3d at 49. Once the physician-patient privilege attaches,
"the only basis for authorizing a disclosure of the
confidential information is an express or implied
waiver." Clark, 668 P.2d at 9. Any
party seeking to overcome the privilege bears the burden of
establishing a waiver. Id. at 8. For an express
waiver to occur, the privilege holder must explicitly waive
the privilege. But when the privilege holder injects a
"physical or mental condition into the case as the basis
of a claim or an affirmative defense," an implied waiver
occurs. Id. at 10.
¶28
In determining whether the privilege has been impliedly
waived, "the proper inquiry is not whether the
information sought may be relevant." People v.
Sisneros, 55 P.3d 797, 801 (Colo. 2002). After all, the
physician-patient privilege may protect information even when
the information is relevant to the subject matter of the
case. Cardenas, 180 P.3d at 424. It follows that
"relevance alone
16
cannot be the test" for implied waiver. Johnson v.
Trujillo, 977 P.2d 152, 157 (Colo. 1999) (quoting
R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994)).
To apply implied waiver to any information that's
relevant would be to allow the exception to swallow the
privilege. Alcon, 113 P.3d at 741. But because the
privilege withholds potentially relevant information, we
construe it narrowly. Hartmann, 147 P.3d at 49.
¶29
The physician-patient privilege is personal to the patient
(or the patient's estate) and may not be invoked by the
physician or a third party. See Gadeco, LLC v.
Grynberg, 2018 CO 22, ¶ 10, 415 P.3d 323, 328;
People v. Palomo, 31 P.3d 879, 885 (Colo. 2001). Nor
may it be waived by the physician or a third party. See
Samms v. Dist. Ct., 908 P.2d 520, 524 (Colo. 1995).
¶30
We have explained that not all information acquired by a
physician from a patient is safeguarded from disclosure.
Covington, 19 P.3d at 19. By the very terms of the
privilege statute, such information is protected only when it
is necessary for the physician to "prescribe or act for
the patient." § 13-90-107(1)(d). Thus, for example,
a physician's record containing only the name, address,
and phone number of a patient falls outside the scope of the
privilege because those are matters unnecessary for the
physician to prescribe or act for the patient. Wolf v.
People, 187 P.2d 926, 927 (Colo. 1947). The same holds
true with respect to information obtained by a physician to
assist a patient in pending litigation, see
17
B.B. v. People, 785 P.2d 132, 140 (Colo. 1990)
(involving the psychologist-patient privilege, which we have
equated to the physician-patient privilege), and a
physician's testimony in a criminal case premised on a
blood sample procured at the request of a police officer
investigating the defendant's level of intoxication,
see Hanlon v. Woodhouse, 160 P.2d 998, 1001 (Colo.
1945).
¶31
In contrast to Wolf, B.B., and
Hanlon, we landed on the other side of the privilege
ledger in Covington. There, a physician assistant
took photographs of Mrs. Covington's gunshot wounds while
providing her treatment in a hospital's emergency room
shortly after her husband shot her with a rifle.
Covington, 19 P.3d at 18. The physician assistant
took the pictures at the request of a sheriff's deputy.
Id. Before her husband's criminal trial, Mrs.
Covington invoked the physician-patient privilege with
respect to the photographs, but the trial court ruled that
they were not protected by the privilege because they were
unnecessary for her treatment. Id. at 18-19.
Accordingly, the court permitted the prosecution to call the
physician assistant as a witness to provide foundation
testimony to admit the photographs into evidence.
Id. at 19.
¶32
A division of the court of appeals reversed, ruling that the
admission of the photographs constituted prejudicial error
because they were protected by the physician-patient
privilege. Id. Although we reversed on other
grounds, we agreed with the division's determination
regarding the application of the
18
physician-patient privilege.[2] Id. at 18. We sided with
the defense's contention that, although the physician
assistant had taken the photographs at the request of law
enforcement, she'd used the information depicted in them
to treat Mrs. Covington. Id. at 19-20. Because the
information contained within the photographs memorialized the
observations made by the physician assistant during her
examination of Mrs. Covington, and because these were
observations she could not have made but for her position as
a treating professional, we concluded that the photographs
fell within the physician-patient privilege. Id.
C.
Application
¶33
Jennings argues that the district court erred in reviewing
the screenshot of a portion of his medical records. Moreover,
he asserts that it was improper for the court to undertake a
sentence-by-sentence analysis of the five sentences to
determine whether the information contained in each sentence
was necessary for the emergency room department physician to
prescribe or act on his behalf. Plaintiffs counter that the
court correctly resolved the issues before it.
¶34
In ruling for Plaintiffs, the district court relied almost
exclusively on cases in which we have determined that the
physician-patient privilege didn't apply
19
because the information acquired by the physician in treating
the patient was not necessary to prescribe or act on the
patient's behalf. While we stand by these cases today,
they are distinguishable.
¶35
This is not a case involving records in a physician's
custody containing only a patient's identifying
information (i.e., the patient's name, address, and phone
number). See Wolf, 187 P.2d at 927.[3] Nor are we
dealing with information provided by a patient for the
purpose of receiving a physician's assistance in pending
litigation, see B.B., 785 P.2d at 140, or with
testimony regarding a blood sample obtained at the request of
law enforcement for purposes of determining someone's
level of intoxication, see Hanlon, 160 P.2d at 1001.
Rather, it is undisputed that the medical records at issue
here contain information acquired by an emergency department
physician while treating Jennings for the injuries he
sustained in the collision. As such, this case is more akin
to Covington.
¶36
Although the district court leaned on Covington,
that case actually undermines its discovery order. The
photographs in Covington found shelter in the
physician-patient privilege both because their contents
memorialized observations made by the physician assistant
while treating Mrs. Covington for
20
gunshot wounds and because the physician assistant would not
have been in a position to make those observations if she
hadn't been a treating professional. Covington,
19 P.3d at 20. So, too, here: The notes in the medical
records reflect information provided by Jennings to his
emergency department physician during treatment, and the
physician would not have been in a position to receive that
information if he hadn't been a treating professional.
¶37
Plaintiffs contend, however, that the five sentences fall
outside of the privilege's protective blanket because, in
their view, Jennings's description of the collision was
unnecessary to permit the emergency department physician to
prescribe or act on his behalf. Therefore, urge Plaintiffs,
we should approve the district court's approach of wading
through the five sentences one by one to determine what
information, if any, was protected by the physician-patient
privilege. We decline Plaintiffs' invitation.
¶38
We have never sanctioned a system in which a trial court must
conduct a sentence-by-sentence analysis of medical records
(or a statement-by-statement analysis of proffered testimony)
to determine, in hindsight, whether the information contained
in each sentence or statement was necessary for the treating
physician to prescribe or act for the patient. None of the
cases cited by the district court endorse this analytical
framework.
21
¶39
Instead, after concluding in Wolf. B.B., and
Hanlon that the physician-patient privilege was
inapplicable because the information acquired by the
physician was not necessary to prescribe or act on the
patient's behalf, we simply deemed the documents or
testimony under challenge wholly admissible. See
Wolf, 187 P.2d at 927; B.B., 785 P.2d at 140;
Hanlon, 160 P.2d at 1001. There was no
sentence-by-sentence or statement-by-statement parsing.
¶40
Cook v. People, 153 P. 214 (Colo. 1915), a
110-year-old opinion cited by Plaintiffs, doesn't support
their proposed piecemeal analysis. In that case, the
defendant was taken to the hospital after suffering a gunshot
wound on the night he allegedly murdered the victim.
Id. at 215. At trial, he objected to his treating
physician's testimony based on the physician-patient
privilege. Id. The trial court overruled his
objection and permitted the physician to testify.
Id. We affirmed, but our treatment of the privilege
issue was cursory. Id. at 215-16. After noting that
the physician had simply testified about the defendant's
refusal to consent to the removal of the bullet or to explain
how he was shot, we concluded that this "was not
necessary information to enable the doctor to prescribe or
act for his patient." Id. at 216. We didn't
engage in the type of statement-by-statement dissection for
which Plaintiffs advocate.[4] Id.
22
¶41
Not only does Plaintiffs' suggested methodology lack
support in our jurisprudence, it is unworkable. To begin, it
would require trial court judges to regularly access
privileged medical confidentialities for purposes of
assessing what information, if any, was necessary for the
physician to prescribe or act on the patient's behalf.
Yet, we have made clear in the context of the attorney-client
privilege that providing documents containing privileged
information to a trial court judge for an in camera review is
still a form of disclosure. See People v.
Cortes-Gonzalez, 2022 CO 14, ¶ 56, 506 P.3d 835,
847. Even if an in camera review of medical records were to
result in no documents being disclosed to any party, there
would still be "a chilling effect" on physicians
and patients, especially where such reviews would occur
routinely and would be easily obtained. Id., 506
P.3d at 848 (quoting People v. Madera, 112 P.3d 688,
691 (Colo. 2005)) (making this point with respect to
attorneys and clients). Not surprisingly, C.R.C.P.
26(b)(5)(A), which directs civil litigants on when and how to
assert a privilege claim (including one rooted in section
13-90-107(1)(d)), aims to reduce the need for in camera
reviews. Alcon, 113 P.3d at 742.
23
¶42
Moreover, Plaintiffs' proposal would render the
application of the physician-patient privilege unpredictable.
Patients would have no way of knowing at the outset of
medical treatment whether information shared with a treating
physician would be protected. Consequently, patients who
obviously lack the ability to diagnose and treat themselves
would be forced to parse what information is
"necessary" for the physician to prescribe or act
for them. This would discourage, not encourage, patients'
forthrightness with a treating physician and would frustrate
the chief purpose of the physician-patient privilege.
¶43
Lastly, the standard offered by Plaintiffs would require a
trial court to substitute its judgment for that of a
physician's. This would be problematic because a trial
court lacks the medical expertise of a physician. How can a
trial court be expected to determine-on a cold record and in
hindsight-what information was necessary for the physician to
prescribe or act for the patient? The alternative would be
equally impractical: It would require physicians or other
medical personnel to come to court in every case in which
there is a dispute about the physician-patient privilege to
identify what information acquired during treatment was
necessary to prescribe or act for the patient.
¶44
We now hold that where, as here, medical records contain
information provided by a patient to a physician during the
course of receiving treatment for
24
an injury, the records are protected by the physician-patient
privilege. Hence, the district court erred in reviewing the
screenshot of a portion of Jennings's medical
records.[5]
¶45
We recognize that the information shared by a patient with a
treating physician may include details regarding how an
injury occurred. Indeed, it is not unusual for a physician
treating a patient who has suffered an injury to ask how the
injury occurred, as such information may be of assistance in
prescribing or acting for the patient. And we understand that
the patient's response may include facts about the
underlying incident that led to the injury.
¶46
This reality causes Plaintiffs consternation. They maintain
that extending the physician-patient privilege's
protective mantle to Jennings's medical records allows
him to conceal relevant facts about the case-specifically,
his version of how the collision occurred. Not so. Although
neither party cited it, our recent opinion in Jordan
is instructive.
¶47
There, plaintiffs retained an expert to opine about when and
where they had been exposed to a carcinogen allegedly emitted
by a plant operated by defendants.
25
Jordan, ¶ 1, 550 P.3d at 630. To assist the
expert, plaintiffs' counsel put together a spreadsheet
showing where each plaintiff had lived and worked during the
pertinent timeframe. Id. After plaintiffs'
counsel shared this spreadsheet with the expert, defendants
sought access to any communications between plaintiffs and
their counsel containing the information used to create the
spreadsheet. Id. at ¶ 2, 550 P.3d at 630.
Plaintiffs objected, arguing that the communications were
protected by the attorney-client privilege and fell outside
the scope of disclosures required by C.R.C.P. 26(a)(2).
Jordan, ¶ 2, 550 P.3d at 630. The trial court
granted defendants' request and ordered plaintiffs to
produce "the raw facts or data reported by
plaintiffs" to their counsel. Id. Plaintiffs
then sought relief from our court pursuant to C.A.R. 21, and
we issued a rule to show cause. Id. at ¶ 3, 550
P.3d at 630.
¶48
In making the rule absolute, we concluded that,
"although the underlying facts" were "not
privileged," the trial court had erred in determining
"that the attorney[-]client privilege does not apply to
protect a client's confidential communications
of such facts to trial counsel." Id. at ¶
4, 550 P.3d at 630 (emphasis added). We explained that
clients routinely share factual information with their
counsel, but that doesn't entitle opposing counsel to
access the clients' communications containing
such information. Id. Instead, we said, the proper
method of obtaining those facts is through discovery directed
at the clients. Id.
26
And we ruled that C.R.C.P. 26(a)(2) merely obligated
plaintiffs to disclose the spreadsheet their counsel had
provided to their expert, not the privileged and confidential
communications counsel had used in preparing the
spreadsheet-communications the expert had never seen.
Jordan, ¶ 5, 550 P.3d at 631.
¶49
It is likewise here. Jennings may not refuse to disclose
relevant facts within his knowledge simply because he
incorporated those facts into his communications with his
emergency department physician. Otherwise, he could immunize
from disclosure any relevant fact by disclosing it to a
treating physician or anyone else with whom he may have a
confidential relationship. Cf. 1 Geoffrey C. Hazard,
Jr. &W. William Hodes, The Law of Lawyering: A
Handbook on the Model Rules of Professional Conduct
§ 1.6:103, at 137 (2d ed. Supp. 1997) (stating, while
discussing the attorney-client privilege, that "the fact
that a client has discussed the facts with a lawyer does not
protect the client from thereafter being asked about
the facts"; otherwise, "a client could immunize
herself against interrogation about the facts simply by
telling them to her lawyer"), cited with approval in
Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000). Still,
Plaintiffs may not learn about those facts by accessing
Jennings's medical records because Jennings cannot be
compelled to disclose his communications with his emergency
department physician. Although the facts contained in the
communications about how the
27
collision occurred are not privileged, the communications
themselves are privileged. The proper method for
Plaintiffs to learn about those facts is through discovery
directed at Jennings.[6]
¶50
But what about the screenshot of a portion of Jennings's
medical records? Of course, the fact that this screenshot
appears in a police report does not, by itself, entitle
Plaintiffs to access it. The screenshot reflects privileged
information contained in Jennings's medical records, and
law enforcement allegedly accessed that information
improperly. Under the circumstances of this case, it would
make little sense to preclude Plaintiffs from obtaining
access to Jennings's medical records but to then turn
around and allow Plaintiffs to use the screenshot of a
portion of those records within the police report. Jennings
certainly should not suffer the consequences of law
enforcement obtaining his privileged information without his
consent.[7]
28
¶51
This leaves Plaintiffs' waiver contention, which we
reject in short order. Plaintiffs argue that Jennings waived
his physician-patient privilege because his attorney did not
submit a privilege log in accordance with C.R.C.P. 26(b)(5).
We are unpersuaded.
¶52
Plaintiffs elevate form over substance. The record reflects
that Jennings's counsel timely asserted the
physician-patient privilege by email two business days after
becoming aware that law enforcement had obtained
Jennings's medical records and shared them with
Plaintiffs' counsel. And Plaintiffs fail to identify any
information that would have appeared in a privilege log that
was not included in this email. Nor do Plaintiffs show that
Jennings's counsel engaged in deception,
misrepresentation, or some other form of misconduct. Thus,
Plaintiffs suffered no prejudice, and Jennings gained no
advantage. Besides, by the time counsel sent the email,
Jennings's physician-patient privilege had already been
breached, and time was of the essence. Accordingly, under the
specific circumstances of this case, we decline to find a
waiver of the physician-patient privilege as a sanction for
counsel's failure to complete a privilege log.
IV.
Conclusion
¶53
For the foregoing reasons, we make absolute the order to show
cause. We remand the case for further proceedings consistent
with this opinion.
---------
Notes:
[1] Jennings framed the issue as
follows:
1. Whether, where an emergency department visit was
medically necessary, the district court erred in reviewing
statements made to the emergency department physician and
documented in the medical records by parsing
sentence-by-sentence the information to consider whether it
was "necessary to the physician to act on" and
therefore protected under the statutory patient-physician
privilege, rather than finding the entire medical record
privileged.
[2] We ultimately held that the physician
assistant's testimony was admissible based on the statute
then in effect requiring healthcare providers to report
certain incidents to law enforcement, which we viewed as
abrogating the physician-patient privilege in certain
circumstances. Covington, 19 P.3d at 22-23.
[3] The district court cited Belle
Bonfils Memorial Blood Center v. District Court, 763
P.2d 1003, 1009 (Colo. 1988), instead of Wolf. But,
as relevant here, Belle Bonfils, which involved
blood donors (not patients), merely repeated our holding in
Wolf.
[4] People v. Reynolds, 578 P.2d
647 (Colo. 1978), a sexual assault case, is of the same ilk
as Cook. We acknowledged there that, before ruling
on the privilege claim raised by the prosecution on behalf of
the victim, the trial court had to determine whether the
information acquired by the physician during his examination
was necessary to enable him to prescribe or act for the
victim. Id. at 649. But we at no point suggested,
let alone approved, a statement-by-statement analysis of the
physician's proposed testimony. Id.
[5] This is not to say that trial courts
may never perform in camera reviews of medical records.
C.R.C.P. 26(b)(5) expressly allows such reviews-but only
after certain well-worn procedures have been followed and
efforts to resolve any dispute over a privilege claim have
been exhausted. See Alcon, 113 P.3d at 742. The
district court did not adhere to C.R.C.P. 26(b)(5)
here.
[6] Jennings invoked his Fifth Amendment
privilege against self-incrimination in response to certain
written discovery requests and a deposition request. However,
he has since pleaded guilty in his criminal case and is now
awaiting sentencing later today. Accordingly, on remand,
Plaintiffs may re-notice his deposition and re-serve any
appropriate written discovery to inquire about Jennings's
version of events.
[7] Jennings also asks us to conclude that
any information derived from an investigation conducted by
law enforcement based on privileged information allegedly
obtained improperly should be treated as fruit of the
poisonous tree and thus suppressed. We do not reach this
request because it hasn't been addressed by the district
court yet.