Articles Posted in Colorado Supreme Court

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Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was 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. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded 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. View "In re Bailey v. Hermacinski" on Justia Law

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Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was 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. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded 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. View "In re Bailey v. Hermacinski" on Justia Law

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The issue before the Supreme Court in this case was a trial court's order striking the testimony of plaintiff's rebuttal expert witness, and portions of two of plaintiff's previously disclosed expert witnesses. The underlying case centered on a medical malpractice claim brought by the parents of a minor child against a hospital, its management and the doctor that delivered the child. The minor was allegedly injured at birth after his umbilical cord wrapped around his neck, depriving his brain of oxygen. The parties disputed the cause of the child's injuries: Plaintiffs argued the child was injured by preventable intrapartum events (namely Defendants' alleged negligence); defendants argued the injuries occurred days, or possibly weeks prior to birth. Upon review of the matter, the Supreme Court held that the trial court abused its discretion when it excluded plaintiff's expert's rebuttal testimony because her testimony properly refuted a central theory of the defendants' case. The trial court also abused its discretion when it excluded the disclosed experts' testimony because the late disclosure of their testimony did not harm the defendants, as required for sanctions under Rule 37. Accordingly, the Court made the rule absolute and remanded the case for further proceedings. View "In re Warden v. Exempla" on Justia Law

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This case arose from a pending medical malpractice case from the Denver district court. Plaintiff Ernest Ortega sued Defendants Dr. David Lieuwen and Kaiser Foundation Health Plan of Colorado (Kaiser) alleging negligent medical treatment given to him in 2007. Plaintiff appealed the district court's denial of his request for a protective order to cover his electronic medical records encompassing a ten-year period preceding the incident underlying this case. The trial court determined that Plaintiff's electronic medical records were not protected by the physician-patient privilege and that the records were relevant to prepare a defense. Upon review, the Supreme Court held that the trial court did not abuse its discretion when it ruled that Plaintiff's medical records were not protected as privileged and that Defendants could use unredacted copies of all of Plaintiff's medical records. View "Ortega v. Kaiser Foundation Health Plan of Colorado" on Justia Law

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Petitioner Loretta Day was referred to Respondent Dr. Bruce Johnson, M.D., for treatment for hypothyroidism. Dr. Johnson determined that surgery was needed to remove both lobes of the thyroid. A few weeks later, Mrs. Day's vocal cords stopped working, and she suffered a permanent speaking disability that she alleged was caused by the surgery. Mrs. Day and her husband sued Dr. Johnson for negligence, asserting that the Doctor incorrectly assessed Mrs. Day's condition, recommended inappropriate treatment, and improperly removed part of her thyroid. The trial court submitted the issue of Dr. Johnson's negligence to the jury which included a jury instruction that mirrored the language of a pattern jury instruction pertaining to negligence. The Days objected to the court's use of this instruction, arguing that the instruction included a misstatement of Colorado law. The court overruled the objection. The jury found that Dr. Johnson was not negligent. The appellate court affirmed the trial court's use of the instruction. On appeal to the Supreme Court, the Days argued that both the trial and appellate courts erred by using the instruction. Upon careful consideration of the arguments and the applicable legal authority, the Supreme Court affirmed the lower courts' decisions. The Court found that the portion of the pattern jury instructions accurately stated Colorado law.