The Colorado Supreme Court recently heard arguments in the case of Bailey v. Hermacinski. This matter centers on “ex parte communications with doctors, undue influence and residually privileged information.” Ex parte communications in civil matters refers to the idea that a court may proceed with a motion without presenting the issue to, or obtaining a response from, the opposing party. The case resurrects the longstanding law regarding confidentiality between medical providers and their patients known as “physician/patient privilege.” This concept is similar to and generally applies to spouses, between attorneys and their clients, as well as communications between individuals and clergy, such as a priest or rabbi. This matter was allowed based on Rule 21 of the rules of appellate procedure, which is rarely invoked, allowing the court to hear original petitions based on their discretion.
Case Background
Kelley Bailey had a surgical procedure performed at Yampa Valley Medical Center, which is now a part of the UCHealth system in Steamboat Springs. Her allegation states that a surgical mistake led to a perforation of her bowel, which required her to be admitted to the hospital shortly after symptoms, including an infection and gastrointestinal problems. Bailey brought a claim against the surgeon for damages. During the process, defense counsel met with the surgeon who conducted follow-up care. The insurance provider for the defendants, COPIC, was accused of trying to “influence physician testimony” and obstruction of communication between lawyers for the plaintiff.
Patient-Physician Privilege
In instances where a physician is named as a defendant in a suit, there is an exception that applies to the physician-patient privilege. The Supreme Court cited Alcon v. Spicer, where the privilege is still applicable to communication and documentation that is irrelevant to the claims brought in the suit. The court stated that implied waivers are limited by the specific “circumstances of the case.” The waiver does not allow for full disclosure of all information discussed between a patient and their doctor. The plaintiffs in this matter claimed that a breach had occurred involving privileged information.
Colorado Statute
Authorized physicians, surgeons or registered nurses may not be examined for information without prior patient consent. This applies to information necessary for the medical provider to provide care. The following are exceptions:
- Physicians facing a suit brought by a patient or a party on behalf of a patient as a result of acts involving treatment or care.
- A physician operating as a consultant with another physician, surgeon, or registered nurse.
- When services are investigated by certain parties, the physician must have signed a release previously that acknowledges consent. These parties include:
- A licensed hospital’s governing board in accordance with documented bylaws;
- Organizations with authorization from federal or state entities to assess quality or costs based on a contract involving a program with nongovernmental health care entities;
- The Colorado Medical Board, State Nursing Board, or other authorized groups; or
- Committees or associations largely composed of licensed medical professionals that conduct peer reviews.
HIPAA & Medical Confidentiality
Generally, health-related information is considered confidential under most federal and state laws. The provisions may vary based on factors including the type of professional service rendered, the source of funding, and the specific agency providing the services. In 1996, the federal government implemented the landmark Health Insurance Portability & Accountability Act (HIPAA). This provides broad protection to keep health-related information confidential. Most medical professionals and entities are considered “covered” by HIPAA. One Colorado statute requires confidentiality of information relating to behavioral care or mental health, such as services provided by psychologists or psychiatrists. In the event that federal and state provisions are in conflict, providers are generally advised to follow the more stringent of the rules relating to confidentiality.
Exceptions to HIPAA Disclosure
The law allows for disclosure of certain health care information as necessary for purposes of treatment, payment, and operations defined in the provisions. Colorado has a mandatory program for reporting potential instances of child abuse, which federal laws to comply with. Providers must report certain types of injuries or wounds to agencies of law enforcement when encountered. In many situations involving medical care provided to a minor, necessary parental authorization or release may apply for disclosure.
