Ortega v. Colorado Permanente Medical Group

265 P.3d 444, 2011 Colo. LEXIS 858, 2011 WL 5325518

• Court: Supreme Court of Colorado
• Decided: November 7, 2011
• Docket: No. 10SA373
• Status: Published

Opinions

Justice RICE

delivered the Opinion of the Court.

This original proceeding arises out of a medical malpractice case currently pending in the Denver district court. Plaintiff Ernest Ortega has sued defendants Dr. David Lieu wen and Kaiser Foundation Health Plan of Colorado ("Kaiser") for malpractice based on what he alleges to have been negligent medical treatment given to him on September 28, 2007 and October 2, 2007. Ortega seeks relief from a trial court order denying him a protective order for his electronic medical record spanning the ten-year period preceding the incident underlying this case. The trial court determined that Ortega's electronic medical record was not protected by the physician-patient privilege and that the ree-ord was relevant to prepare a defense. Therefore, it held that the defendants may review Ortega's electronic medical record, which is in their possession, to prepare a defense.

We hold that the trial court did not abuse its discretion when it ruled that the physi-clan-patient privilege did not attach to Orte-. ga's electronic medical record based on the statutory exception contained in subsection 13-90-107(1)(d)(I), C.R.S. (2011). We fur ther hold that section 10-16-4283, CRS. (2011), provides a similar exception which permits health maintenance organizations to review a member's relevant health information in the event of a claim or litigation. Additionally, Ortega's entire electronic medical record is relevant for defendants to prepare a defense. Therefore, the defendants may examine and use unredacted copies of all of Ortega's electronic medical record in their care, custody and control generated from 1998 to the present to prepare their defense. Accordingly, we discharge the rule to show cause.

I. Facts and Procedural History

Ortega brought a medical malpractice action against Licuwen and Kaiser in the Denver district court after suffering a myocardial infarction outside of Kaiser's facility shortly after completing an exercise treadmill stress test.

At the time of his heart attack, Ortega had been a member of Kaiser's Health Maintenance Organization ("HMO") for almost twenty years. Kaiser provides comprehensive, integrated medical care and operates a variety of medical offices throughout the metropolitan Denver region.

Kaiser contracts with Colorado Perma-nente Medical Group ("CPMG"), an integrated group medical practice of physicians in primary care and specialty fields, to provide medical care to Kaiser members. In addition, Kaiser's medical offices are staffed by physician assistants, nurse practitioners, nurses, therapists, pharmacists, and other ancillary health care providers, all of whom are employed by Kaiser. Lieuwen is a shareholder-employee of CPMG.

Kaiser has maintained an integrated electronic medical record system since 1998 which enables treating Kaiser health care providers to access the entirety of a patient's electronic medical history. Kaiser employees and affiliated medical providers create the electronic medical record at the time they provide care; they also have instantaneous access to a member's electronic medical record. Kaiser created and kept Ortega's medical record in its electronic medical record system from 1998 through the time of the incident in 2007.

Days after filing an amended complaint, Ortega notified the defendants that he intended to assert the physician-patient privilege to protect the contents of his electronic medical record. In response, Kaiser and Li-euwen refrained from reviewing the medical record and provided a copy of the record to Ortega's counsel.

Ortega filed a motion for protective order seeking to prevent defendants from reviewing his electronic medical record. He asserted that the physician-patient privilege prevented disclosure of his medical record and that he had not waived the privilege. The defendants argued that the physician-patient privilege did not attach to Ortega's electronic medical record because the statutory exception contained in subsection 13-90-107(1)(d)(I) applied.

The trial court denied the motion for protective order. Ortega then filed a motion for reconsideration, which the trial court again denied in a ten-page order. The trial court held that two statutory provisions applied to the case at hand and that each provided exceptions to the physician-patient privilege: (1) subsection 13-90-107(1)(d)(I) governing physicians, surgeons and registered professional nurses; and (2) section 10-16-428 governing HMOs. Applying these statutes, the trial court determined that the physician-patient privilege did not attach to Ortega's medical record. The trial court also found that the medical records were relevant because they concerned the subject matter of Ortega's suit. Accordingly, the defendants were entitled to access the records in their care, custody, and control and use them in preparation of their defense.

Ortega requested and was granted a stay of the trial court's order. Ortega then filed a CAR. 21 Petition with this Court seeking review of the trial court's order. We issued a rule to show cause to determine whether the trial court properly denied Ortega's motion for a protective order.

II. Jurisdiction and Standard of Review

This Court will not ordinarily review a trial court's pretrial discovery order. Cardenas v. Jerath, 180 P.3d 415, 420 (Colo.2008). C.A.R. 21, however, authorizes us to review a trial court's order if a remedy on appeal would be inadequate. Cardenas, 180 P.3d at 420. When a trial court's order involves records which a party claims are protected by a statutory privilege, as here, 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. Clark v. Dist. Court, 668 P.2d 3, 7 (Colo.1983). Thus, we invoke our original jurisdiction under C.A.R. 21 in this case to review the trial court's order because of the nature of the rights implicated and the potential irreparable harm from disclosure of medical information. See Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 861 (Colo.2004). We review matters under C.A.R. 21 for an abuse of discretion. Cardenas, 180 P.3d at 420.

III. Analysis

A. The Physician-Patient Privilege

The trial court determined that, under the statutory exception to the physician-patient privilege contained in subsection 18-90-107(1)(d)(I), the privilege did not attach to Ortega's electronic medical record. We agree.

The physician-patient privilege arises by statute in Colorado and protects communications and information shared between a patient and his physician onee the privilege attaches. § 13-90-107(1)(d); Clark, 668 P.2d at 7-8. The privilege is intended to encourage a patient to make a full disclosure to his treating physician, to promote effective diagnosis and treatment, and to protect the patient from embarrassment. Clark, 668 P.2d at 8. The statute provides:

a physician, surgeon, or registered professional nurse ... 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.

§ 13-90-107(1)(d).

The physician-patient privilege is not absolute, however; the General Assembly also provided statutory exceptions to the privilege. See §§ 13-90-107(1)(d)(I)-(VI). Relevant to our inquiry here, section 13-90-107(1)(d)(I) mandates that the provisions of subsection (1)(d):

shall not apply to: ... A physician, surgeon, or registered professional nurse who is sued by or on behalf of a patient ... on any cause of action arising out of or connected with the physician's or nurse's care or treatment of such patient.

(emphasis added).

The meaning of the statutory exception contained in section 13-90-107(1)(d)(I) is an issue of first impression. In construing statutes, we seek to effectuate the intent of the legislature, looking first to the plain language of the statute and giving the language its commonly accepted and understood meaning. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). Where the statutory language is clear and unambiguous, we do not resort to legislative history or further rules of statutory construction. Id.

The language of section 18-90-107(1)(d)(I) is clear. First, the exeeption requires a patient to institute a suit or cause of action against a physician, surgeon or registered professional nurse. Also, the patient's suit must arise out of or be connected with the physician's, surgeon's, or registered professional nurse's care or treatment of the patient. § 18-90-107(1)(d)(I). When these two circumstances occur, the physician-patient privilege provided in subsection (1)(d) no longer applies. Id. Therefore, when a patient institutes an action against a physician, and that action arises out of or is connected with the physician's care or treatment of the patient, the information acquired by the physician is not privileged.¹ Id.; see also Reutter v. Weber, 179 P.3d 977, 980 (Colo.2007) (recognizing in dicta the statutory exception provided by subsection 13-90-107(1)(d)(I)).

This exception avoids the unfair cireumstance of allowing a patient to use privileged information to assert a medical malpractice claim while simultaneously preventing the sued medical provider from using the same information in its defense. See Reutter, 179 P.3d at 980. Reading subsections (1)(d) and (1)(d)(I) together, when the statutory exception contained in (1)(d)(I) applies, the physician may be examined as to any information acquired in attending the patient that was necessary to enable the physician to prescribe or act for the patient.

Here, the physician-patient privilege does not attach to Ortega's electronic medical ree-ord. Kaiser healthcare providers utilize a comprehensive integrated approach to medical care. Part of this approach requires that the healthcare provider has a complete electronic medical record for each member. Thus, when a physician attends to a patient, he necessarily acquires the entire medical record in order to effectively evaluate and treat the patient. Accordingly, Lieuwen had instantaneous access to Ortega's entire electronic medical record as Ortega's treating physician.² Ortega brought a medical malpractice action against Lieuwen as his physician. Consequently, Ortega's entire electronic medical record, which constitutes the information acquired by Lieuwen in attending Ortega, is not protected by the physician-patient privilege.

We determine that the trial court did not abuse its discretion when it held as a matter of law that the physician-patient privilege did not attach to Ortega's medical record under subsection 13-90-107(1)(d)(I).

B. HMO Confidentiality Requirements

Subsection 18-90-107(1)(d)(T) exempts Ortega's electronic medical record from the physician-patient privilege; the exception does not, however, grant Kaiser as an HMO the same exemption.³ Section 10-16-428, rather than the physician-patient privilege, governs the confidentiality of HMO members' information, and thus controls here. The statute provides:

Any data or information pertaining to the diagnosis, treatment, or health of any en-rollee or applicant obtained from such person or from any provider by any health maintenance organization shall be held in confidence and shall not be disclosed to any person except to the extent that it may be necessary to carry out the purposes of part 1 of this article or this part 4; or upon the express consent of the enrollee or applicant; or pursuant to statute or court order for the production of evidence or the discovery thereof; or in the event of claim or litigation between such person and the health maintenance organization wherein such data or information is pertinent; or as otherwise required or permitted by state or federal law.

§ 10-16-4283 (emphasis added).

This Court has not previously interpreted section 10-16-4283. When construing statutes we seek to effectuate the intent of the legislature. Smith, 230 P.3d at 1189. First, we look to the plain language of the statute, giving the language its commonly accepted and understood meaning. Id.

The plain language of the statute first mandates that an HMO shall not disclose⁴ any data or information pertaining to the diagnosis, treatment, or health of any enrollee or applicant obtained from such person or from any provider by any HMO. § 10-16-423. Then, the statute provides a number of exceptions to that mandate. Id. Relevant to our inquiry in the instant case, the statute provides an exception in the event of a claim or litigation between an enrollee and the HMO wherein "such data or information is pertinent." ⁵ Id.

The only limitation placed on the type of claim or litigation to which the exception applies is that the data or information must be "pertinent" to the claim or litigation. Id. Black's Low Dictionary 1261 (Oth ed. 2009), defines "pertinent" as "pertaining to the issue at hand; relevant." Thus, the term "pertinent" is synonymous with the term "relevant." Id.; see also People v. Miller, 890 P.2d 84, 91 (Colo.1995) ("Several courts have interpreted the word pertinent' to be synonymous with relevant.' "). Therefore, it would be equally correct to interpret the plain language of the statute to limit the data or information to that which is relevant to the claim or litigation. The phrase "such data or information" in the exception refers to any data or information pertaining to the diagnosis, treatment, or health of any enroll-ee or applicant obtained from an enrollee or applicant or from any provider by any health maintenance organization. § 10-16-4238.

Thus, section 10-16-4283 controls the confidentiality of enrollee information provided to HMOs by enrollees and medical providers and also contains an exception for the disclosure of relevant information in the event of a claim or litigation between the HMO and the enrollee.

Applied to the case at hand, section 10-16-428 permits Kaiser to examine Ortega's electronic medical record, to the extent the ree-ord is relevant to claims raised by Ortega against Kaiser, because Ortega brought suit against Kaiser.

C. Relevance of Ortega's Electronic Medical Record

Subsection 13-90-107(1)(d)(I) and section 10-16-4283 allow the disclosure of otherwise protected medical information in the event of litigation when the information is relevant to the litigation. Here, the trial court denied a protective order, determining that what was ultimately at "issue [wals Defendants' right in defense of this action to review Plaintiff's medical records in their possession" and to prepare a defense. Accordingly, we now turn to the trial court's determination of the relevance of Ortega's electronic medical record to the preparation of a defense.

The trial court determined that, because privilege did not attach, its discretion was cireumscribed only by whether the information was relevant under C.R.C.P. 26(b)(1).⁶ The trial court concluded that all of Ortega's medical records in the possession of defendants since 1998 were relevant under Rule 26(b)(1). Accordingly, the trial court ruled that the defendants may examine unredacted copies in their care, custody and control of all of Ortega's electronic medical record generated from 1998 to the present in preparation of their defense in the case at hand. We agree.

Ortega has sued Lieuwen for professional negligence and Kaiser for negligence. Ortega claims broad and numerous damages.⁷ A review of Ortega's medical record is relevant to enable defendants to prepare an answer, assert defenses, develop legal theories, plan discovery, and determine evidence and witnesses for trial. The trial court did not determine that the entire medical record would be admissible at trial, only that it is relevant for preparing a defense. Neither the trial court's ruling on the motion for protective order,⁸ nor our opinion here, affects plaintiff's opportunity to object to the relevance of medical information before trial to safeguard against admitting unrelated or irrelevant medical information into evidence. Accordingly, we agree with the trial court that the motion for protective order should be denied and that the defendants may examine unredacted copies of Ortega's medical record generated from 1998 to the present in their care, custody and control in preparation of their defense in the case at hand.

IV. Conclusion

The trial court did not abuse its discretion by concluding that defendants could examine Ortega's electronic medical record in their care, custody and control from 1998 through the present to prepare a defense. For the reasons stated above, we discharge the rule to show cause.

Chief Justice BENDER dissents.

1 . With our holding today, we make clear that cases that arise in the medical malpractice context invoke subsection 13-90-107(1)(d)(I)'s statutory exception to the physician-patient privilege rather than the implied waiver doctrine.

2 . Kaiser's integrated electronic medical record is instantaneously accessible by any and all Kaiser healthcare providers and is a hallmark of the services Kaiser provides.

3 . The trial court analyzed section 10-16-423 under the physician-patient privilege doctrine. Because Kaiser is an HMO, it cannot practice medicine under Colorado law and the physician-patient privilege is accordingly inapplicable to it. See § 10-16-421(3), C.R.S. (2011). Nonetheless, for the reasons stated in this opinion, we determine that section 10-16-423 governs an HMO's obligations with respect to the confidentiality of members' health information under Colorado law.

4 . The statute gives no indication that the word "disclose" means a legal disclosure under C.RC.P. 26(a). Rather, we understand "disclose" to have its commonly understood meaning: "to open." Webster's Third New International Dictionary 645 (3d ed. 2002).

5 . Section 10-16-423 also provides an exception for disclosing data or information when "otherwise required or permitted by ... federal law." Here, Ortega conceded before the trial court that he no longer asserted that federal law was more stringent than Colorado law regarding privilege. Therefore, the trial court did not examine federal law, but concluded that Ortega failed to meet his burden to establish that federal law was more stringent than Colorado law. In briefing to this Court, Ortega again conceded that Colorado law was more stringent than {federal law. Therefore, we limit our analysis to Colorado law.

6 . C.R.C.P. 26(b)(1) provides:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

7 . Ortega claims damages for: pain and suffering; inconvenience; emotional distress; permanent injury and impairment of quality of life; loss or reduction of his life expectancy; loss of trust in health care providers due to the betrayal of trust by the defendants; fear and anxiety that he will suffer another near death experience; and past, present and future economic losses, including the cost of additional medical and health treatment required because of his cardiac condition.

8 . This case arises in a peculiar posture having as its genesis a motion for protective order. Customarily, in a motion for protective order, the moving party seeks to shield from discovery information that the opposing party has requested or will request. See, e.g., Bond v. Dist. Court, 682 P.2d 33, 36 (Colo.1984) (medical records requested from third party physician during discovery). Moreover, the party against whom the protective order is sought ordinarily is not already in possession of the information. See, e.g., Direct Sales Tire Co. v. Dist. Court, 686 P.2d 1316, 1319 (Colo.1984) ("The plaintiff filed a motion for protective orders alleging that trade secrets in its possession had been sought, or would be sought by the defendants in connection with discovery proceedings.").