Supreme Court Rules in Physician-Patient Privilege Case

Court declined to rule broadly on ex parte interviews, undue influence in Bailey v. Hermacinski

In March 2014, Kelley Bailey had a hysterectomy at Yampa Valley Medical Center. She returned to the hospital in July with abdominal pain and received a second surgery performed by Dr. Mark Hermacinski and Dr. Leslie Ahlmeyer. During the second surgery, Bailey argued, the defendants perforated her bowel, which led to a third emergency surgery at Craig Memorial Hospital a few days later. Bailey had multiple surgeries afterward at St. Mary’s Medical Center to correct the complications and sued the doctors for medical negligence.

The defense sought to interview several doctors at Craig and St. Mary’s who treated Bailey after the second surgery. Plaintiffs filed a motion for a protective order to block these interviews from being held without Bailey’s counsel present. They argued that the providers had residually privileged information that was redacted from Bailey’s medical history. The defense claimed there was no evidence that those physicians had privileged infor-mation outside of the scope of the negligence claims.

Plaintiffs argued to the trial court that the protective order was necessary to avoid “undue influence,” contending that “there appears to be a concerted effort by the malpractice insurers in Colorado, specifically COPIC, to hire counsel for treating physicians who are not potential defendants in lawsuits.” COPIC insures all the defendants in the suit. Counsel for the defense declined to comment on the case.

Colorado statute includes an exception to physician-patient privilege when that physician is sued, and a 2007 Colorado Supreme Court decision in Reutter v. Weber extends that exception to non-party providers who are “in consultation with” other providers who have been sued.

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