Colorado Supreme Court Hears Oral Arguments in Bailey v. Hermacinski

Ex parte communications between defense counsel in medical malpractice suits get their day in court

The Colorado Supreme Court has heard four juvenile-life-without-parole cases since June. LAW WEEK FILE PHOTO

What started as a medical malpractice case has evolved to call into question the nature of ex parte communications with physicians, undue influence and residually privileged information, raising several important issues in the world of malpractice cases and physician-patient privilege. The arguments were granted as a rule 21 petition, an appellate rule rarely exercised that provides the Supreme Court with discretionary jurisdiction to hear original proceeding petitions.

Plaintiff Kelley Bailey underwent surgery for a gynecologic issue in 2014 at Yampa Valley Medical Center. She alleges that during that procedure, the surgeon perforated her bowel. Five days later, she was readmitted to Craig Hospital with complications including infection and what resulted in permanent gastrointestinal problems.

Bailey sued the surgeon who performed the original procedure along with two other doctors for medical malpractice. The defense has requested meetings with the subsequent treating surgeon. Plaintiffs have issued a complaint that COPIC insurance, which insures the defendants in the case, has repeatedly “attempted to infl uence the testimony of treating physicians, through obstructing meetings with plaintiff’s counsel, appointment of defense counsel for these treating physicians and/or successfully preventing treating physicians from providing testimony favorable to their patients.”

A statutory exception to physician-patient privilege exists in Colorado when the physician is sued. In Alcon v. Spicer, the Colorado Supreme Court noted that privilege is still retained for those communications and medical records not relevant to the damages claimed in the present case. The court noted, however, that “since recognition, implied waivers have always been limited by the circumstances of the case, rather than amounting to consent to general disclosure of all of the patient’s communications with his or her physician.” Julia Thompson, counsel for the plaintiffs, argued those privileged communications were at issue in this case.

To read this story and other complete articles featured in the October 23, 2017 print edition of Law Week Colorado, copies are available for purchase online.