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In re Bailey

Supreme Court of Colorado, En Banc

March 5, 2018

In Re Kelley Bailey and Michael Bailey, Plaintiffs
v.
Mark Hermacinski, M.D.; Leslie Ahlmeyer, M.D.; Mary Bowman, M.D.; and Yampa Valley Medical Center, a non-profit corporation. Defendants

         Original Proceeding Pursuant to C.A.R. 21 Routt County District Court Case No. 16CV30089 Honorable Thomas W. Ossola, Judge

          Attorneys for Plaintiffs: Schoenwald & Thompson LLC Julia Thompson Denver, Colorado

          Attorneys for Defendants: Jaudon & Avery LLP David H. Yun Jared R. Ellis Denver, Colorado

          Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Ruebel & Quillen, LLC Jeffrey Clay Ruebel Casey A. Quillen Westminster, Colorado

          Attorneys for Amicus Curiae Colorado Medical Society: Conklin Cardone & Rutberg, PC John L. Conklin Amy K. Cardone Denver, Colorado

          Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Cross & Bennett, L.L.C. Joseph F. Bennett Colorado Springs, Colorado

          Attorneys for Amicus Curiae COPIC Insurance Company: Kittredge LLC Daniel D. Domenico Denver, Colorado

          Attorneys for Amicus Curiae Regents of the University of Colorado: Office of University Counsel Patrick T. O'Rourke Denver, Colorado

          OPINION

          RICE, CHIEF JUSTICE.

         ¶1 In this original proceeding, we consider the scope of the physician-patient privilege in a medical-malpractice action. Section 13-90-107(1)(d), C.R.S. (2017), prohibits certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, is not unlimited. Section 13-90-107(1)(d)(I), for instance, states that when a patient sues their medical provider, information "arising out of or connected with" that provider's treatment of the patient is not protected by the physician-patient privilege. And section 13-90-107(1)(d)(II) deems information held by a non-party medical provider who was "in consultation with" a defendant as similarly outside the protection of the physician-patient privilege.

         ¶2 In this case, Defendants sought ex parte interviews with a number of non-party medical providers. Thus, this dispute, as presented to us, does not implicate the physician-patient relationship between Kelley Bailey ("Bailey") and Defendants, meaning section 107(1)(d)(I) is inapplicable. Instead, the issue here is whether the non-party medical providers were "in consultation with" Defendants such that section 107(1)(d)(II) removed that typically privileged information from the protection of the physician-patient privilege. We hold that the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, we remand this case to the trial court for consideration of whether Plaintiffs Kelley and Michael Bailey ("the Baileys") impliedly waived the physician-patient privilege for the non-party medical providers. On remand, if the trial court concludes that the Baileys did waive that privilege, it should reconsider whether there is any risk that (1) ex parte interviews with the non-party medical providers would inadvertently reveal residually privileged information, or (2) Defendants would exert undue influence on the non-party medical providers in the course of any ex parte interviews.

         I. Facts and Procedural History

         ¶3 In March 2014, Bailey underwent a hysterectomy performed by Doctor Ellis. In July 2014, Bailey visited Defendant Yampa Valley Medical Center ("Yampa") reporting abdominal pain. A CT scan revealed accumulated fluid that medical professionals at Yampa believed to be related to the March 2014 surgery. Bailey then underwent surgery performed by Defendants Doctor Ahlmeyer and Doctor Hermacinski. The Yampa doctors removed Bailey's appendix, several adhesions from the hysterectomy, and her right ovary due to a ruptured ovarian cyst.

         ¶4 Two days after Bailey was discharged from Yampa, Doctor Ellis referred her to Craig Memorial Hospital ("Craig") after she reported abdominal pain, nausea, vomiting, and chills. Doctors at Craig determined that Bailey was suffering from a perforated bowel. Bailey then underwent emergency surgery at Craig to repair the perforation. Bailey remained there for nearly a month and went through a number of abdominal washouts as a result of the perforation, and she has received repeated follow-up care from a number of doctors at Craig ("the Craig treaters"). About a month after her release from Craig, Bailey went to a third ...


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