Carter v. Lotspeich, et al
Filing
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ORDER granting 27 Motion to Conduct Ex Parte Interviews with Certain Health Care Providers. ORDERED that Peak Orthopedics and Spine, PLLC and Mr. Lotspeich and their counsel may engage in ex parte interviews with the following providers without first providing notice to Plaintiff or her counsel: providers from the Medical Center of Aurora; Peak Orthopedics and Spine, PLLC; and Sky Ridge Medical Center by Magistrate Judge Kathleen M. Tafoya on 01/25/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01381-WYD-KMT
HEATHER CARTER,
Plaintiff,
v.
DAVID C. LOUCKS, M.D.,
RICHARD M. LOTSPEICH, P.A.-C., and
PEAK ORTHOPEDICS AND SPINE, P.L.L.C.,
Defendants.
______________________________________________________________________________
ORDER RE: DEFENDANTS RICHARD M. LOTSPEICH, PA-C’S AND PEAK
ORTHOPEDICS AND SPINE, PLLC’S MOTION TO CONDUCT EX PARTE
INTERVIEWS WITH CERTAIN HEALTH CARE PROVIDERS
______________________________________________________________________________
THIS MATTER comes before the Court on Defendants Richard M. Lotspeich, PA-C’s
and Peak Orthopedics and Spine, PLLC’s Motion to Conduct Ex Parte Interviews with Certain
Health Care Providers. The Court, having reviewed the Motion, the file, and otherwise being
fully advised in the premises, hereby
FINDS that where a plaintiff injects her physical or mental condition into the case as a
basis of a claim, the plaintiff has impliedly waived any claim of privilege respecting that medical
condition. Here, Plaintiff Heather Carter is claiming injury and damages she attributes to the
medical care provided by Defendants. Plaintiff sustained a fracture of her lower extremity,
which was surgically treated by Defendants Dr. Loucks and Mr. Lotspeich at The Medical
Center of Aurora. She received care for that fracture from both defendants at Peak Orthopedics
and Spine, PLLC (also a named defendant) and underwent a second surgery at Sky Ridge
Medical Center, also performed by Defendants Dr. Loucks and Mr. Lotspeich. The care afforded
Plaintiff by health care providers at The Medical Center of Aurora, Peak Orthopedics and Spine,
PLLC, and Sky Ridge Medical Center relates solely to the claims and damages alleged by
Plaintiff in this case.
THE COURT FURTHER FINDS that the waiver implied by the filing of a suit
constitutes consent for medical providers to be examined as to information acquired in attending
the patient that was necessary to enable treatment for the patient. This type of open discovery is
appropriate when there is no privilege to protect. As explained in the case of Reutter v. Weber,
179 P.3d 977 (Colo. 2007), a defendant may conduct ex parte interviews of health care providers
where there is not a high risk that residually privileged information will be divulged to the
defense in those interviews. This is true regardless of whether the defendant health care provider
acted in consultation with the outside treating provider. While consultation may be one
mechanism by which a Court may evaluate whether there exists a high risk that residuallyprivileged information may be disclosed in ex parte interviews, it is not the only mechanism. As
discussed above, this standard may be met where there is no privilege to protect because the
outside healthcare providers. In this case, there was consultation between the defendants and
providers who cared for Plaintiff at The Medical Center of Aurora, Peak Orthopedics, and Sky
Ridge Medical Center. Further, it is evident that care was provided solely for the medical
conditions Plaintiff herself has placed at issue in the lawsuit.
THE COURT FURTHER FINDS that there is no privilege to protect between Plaintiff
and care providers who treated Plaintiff in conjunction with the May 2010 surgery at The
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Medical Center of Aurora; between Plaintiff and care providers at Peak Orthopedics and Spine,
PLLC; and between Plaintiff and care providers who treated Plaintiff in conjunction with her
October 2010 surgery at Sky Ridge Medical Center. As such, there is not a high risk that
residually privileged information will be divulged to the defense during ex parte interviews with
these providers.
THE COURT FURTHER FINDS that allowing Plaintiff to participate in the defense’s
interviews of the above-mentioned providers would improperly invade the defense’s workproduct given that there is no privilege to protect. Because there is no privilege to protect, these
providers are akin to any other lay witnesses with whom the discovery rules allow the defense to
meet freely and without notice to Plaintiff.
IT IS THEREFORE ORDERED that Defendants Peak Orthopedics and Spine, PLLC and
Mr. Lotspeich’s Motion is GRANTED; and it is further
ORDERED that Peak Orthopedics and Spine, PLLC and Mr. Lotspeich and their counsel
may engage in ex parte interviews with the following providers without first providing notice to
Plaintiff or her counsel: providers from the Medical Center of Aurora; Peak Orthopedics and
Spine, PLLC; and Sky Ridge Medical Center.
25th
xxxxxxxxxxx
DATED this ______ day of December, 2012. January, 2013.
BY THE COURT:
______________________________
United States District Court Judge
xxxxxxxxxxxxxxxxxxxxx
Kathleen M. Tafoya
United States Magistrate Judge
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