Carter v. Lotspeich, et al

Filing 43

ORDER. "Defendants Richard M. Lotspeich, PA-C's and Peak Orthopedics and Spine, PLLC's Supplement to its Motion to Conduct Ex Parte Meetings with Certain Health Care Providers" 32 is GRANTED in part and DENIED in part by Magistrate Judge Kathleen M. Tafoya on 01/29/13. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
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

This matter is before the court on “Defendants Richard M. Lotspeich, PA-C’s and Peak
Orthopedics and Spine, PLLC’s Supplement to its Motion to Conduct Ex Parte Meetings with
Certain Health Care Providers” [Doc. No. 32, filed December 14, 2012]. Plaintiff filed her
response on January 11, 2013 [Doc. No. 39], and Defendants filed their Reply on January 25,
2012 [Doc. No. 40]. The court issued its Order granting Defendants Richard M. Lotspeich,
PA-C’s and Peak Orthopedics and Spine, PLLC’s Motion to Conduct Ex Parte Meetings with
Certain Health Care Providers [Doc. No. 27] allowing for ex parte interviews by Defendants
with a number of medical personnel found to be pursuing a unified course of treatment in
consultation with the named Defendants on January 25, 2013. [Doc. No. 41.]

In this supplemental motion, Defendants seek the same unfettered access to a number of
Plaintiff’s treating medical providers who were admittedly not in consultation with the medical
providers named as defendants, including: Naval Medical Center Portsmouth: (Adult
Reconstruction/Total Joint Replacement, Pain Management), treating for pain management
services from January 2011 through May 2011; Langley Physical Therapy, treating with physical
therapy beginning in May 2010; Langley AFB Hospital, Dr. James Tinsley, providing orthopedic
care beginning in October 2010,and continuing through the present and Dr. Powell who provided
orthopedic follow-up from May 2010 through November 2010; Langley AFB Aquatic Therapy,
providing aquatic therapy instruction beginning in January 2011 and continuing through the
present; Langley AFB Mental Health during an unspecified period of time; University of
Colorado Hospital Anschutz Medical Pavillion, providing aquatic therapy beginning in July
2010 and continuing through October 2010; and, Buckley ADB (sic) Hospital – Mental Health
Clinic and PCM, providing treatment from May 2010 through October 2010.
Colorado’s physician/patient privilege1 is set forth at Colo. Rev. Stat. § 13-90-107(1)(d),
(1) There are particular relations in which it is the policy of the law to encourage
confidence and to preserve it inviolate; therefore, a person shall not be examined
as a witness in the following cases:
(d) A physician, surgeon, or registered professional nurse duly
authorized to practice his or her profession pursuant to the laws of
this state or any other state shall not be examined without the
consent of his or her patient as to any information acquired in
attending the patient that was necessary to enable him or her to
prescribe or act for the patient . . . .

1

In this diversity action, the parties do not dispute that Colorado provides the rule of law
regarding application of privileges.
2

Id. Following the description of the privilege are several exceptions to the privilege, one of
which occurs when a medical professional is working in consultation with other providers,
stating
(II) A physician, surgeon, or registered professional nurse who was in
consultation with a physician, surgeon, or registered professional nurse being
sued as provided in subparagraph (I) of this paragraph (d) on the case out of
which said suit arises;
Colo. Rev. Stat. § 13-90-107(1)(d)(II).
Where the patient has injected her physical or mental condition into the case as a basis of
a claim or an affirmative defense, the patient has impliedly waived any claim of privilege
respecting that medical condition. See Samms v. District Court, Fourth Judicial Dist. of State of
Colo., 908 P.2d 520, 524 (Colo. 1995); Clark v. District Court, 668 P.2d 3, 10 (Colo. 1983)
(plaintiff “impliedly waives any claim of confidentiality respecting that same condition”). The
extent of the waiver is necessarily established by the facts at issue and is “limited to the cause
and extent of the injuries and damages claimed.” Cardenas v. Jerath, 180 P.3d 415, 424 (Colo.
2008).
It is important to note that the “in consultation with” statutory provisions constitute an
exception to the privilege, and therefore such material is simply not privileged.2 The Samms
case, on the other hand, speaks to a waiver of the privilege with respect to certain kinds of

2

The health care providers at The Medical Center of Aurora, Peak Orthopedics and
Spine, PLLC, and Sky Ridge Medical Center, the subject of the court’s January 25, 2013 Order
were all, in this court’s view, subject to the exception provisions of the statute and therefore not
subject to any physician/patient privilege.
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information which, but for the plaintiff’s waiver, would otherwise be privileged. Even though
exception and waiver can occur simultaneously, they also may operate wholly independently.
See Reutter v. Weber, 179 P.3d 977, 979 (Colo. 2007). When an individual waives her
physician/patient privilege by interjecting a medical condition into litigation, she does so as to a
certain category of information, rather than as to a category of provider. As noted by the
Colorado Supreme Court, “the privilege is still retained with respect to communications
unrelated to the claim or defense,” Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005),
notwithstanding that the medical provides remains the same. See also ; Hartmann v. Nordin, 147
P.3d 43, 50 (Colo. 2006).
In the seminal 1995case involving waiver of the physician/patient privilege and a request
by the defendants to conduct ex parte interviews with treating medical providers, the Colorado
Supreme Court stated
our rules of discovery permit a defense attorney to conduct informal interviews in
the absence of a plaintiff or the plaintiff's attorney with physicians who have
treated the plaintiff. . . . However, we also conclude that such informal
questioning must be confined to matters that are not subject to a physician-patient
privilege and that the plaintiff must be given reasonable notice of any proposed
informal interview. Such notice will afford a plaintiff or the plaintiff's attorney an
opportunity to attend any scheduled interview. Such notice will also enable a
plaintiff to take other appropriate steps to ensure that interviews are limited to
matters not subject to the plaintiff's physician-patient privilege, such as to inform
the physician of the plaintiff's belief that certain information known to the

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physician remains subject to the physician-patient privilege or to seek appropriate
protective orders from the trial court.
Samms, 908 P.2d at 525 -526 (internal citations omitted). Twelve years later the
Supreme Court refined this holding, stating
Samms did not create a blanket rule that a plaintiff is always entitled to attend an
interview of a non-party medical provider. Instead, it held that the trial court
should take appropriate measures to protect against the divulgement of residually
privileged information, and that allowing the plaintiff to attend the interview is
the preferred measure where there is a high risk that residually privileged
information will be divulged.
Reutter v. Weber, 179 P.3d 977, 983 (Colo. 2007).
Reutter, however, concerned medical witnesses who fell under the exception provision of
the privilege statute as consulting providers who were involved in a unified course of treatment.
The Reutter court found that the risk that ‘residually privileged information’ – defined as
“medical information not relevant to [the] malpractice action” – will be divulged was very low;
in fact, the Reutter court found that the medical providers in that case did not possess residually
privileged information at all and therefore permitted the ex parte interviews. Id. at 979.
This case, as noted, involves medical witnesses as to whom waiver, exception, and in
some cases, both waiver and exception applies. It is not clear from the briefing whether or not
the non-consulting medical professionals specifically noted herein possess residually privileged
information, other than in Plaintiff’s self-provided medical history. Most of the entities,
however, are health-related military facilities, and it is therefore conceivable that residually
privileged information about a service member or service members family may be possessed.
Although Samms has been refined by Reutter, what remains a constant is Samms’ directive that
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the court should take appropriate measures to protect against the divulgement of residually
privileged information, and that allowing the plaintiff to attend the interview is the preferred
measure where there is a high risk that residually privileged information will be divulged.
Therefore, as to Naval Medical Center Portsmouth: (Adult Reconstruction/Total Joint
Replacement, Pain Management), Langley Physical Therapy, Langley AFB Hospital, including
Dr. James Tinsley and Dr. Powell, Langley AFB Aquatic Therapy, Langley AFB Mental Health,
University of Colorado Hospital Anschutz Medical Pavillion, and Buckley ADB (sic) Hospital –
Mental Health Clinic and PCM, the court finds that informal questioning of the medical
witnesses by Defendants must be confined to matters that are not subject to a physician-patient
privilege and the plaintiff-patient should be provided prior notice of any scheduled informal
interviews by the defendants and an opportunity to attend the interview. If the plaintiff-patient
and/or her attorney choose not to avail themselves of the opportunity to attend the interview as
scheduled, Defendants may proceed with the interview in their absence. Underlying all
discovery is the admonition succinctly stated in Samms:
[A]lthough by filing a civil action alleging injuries a plaintiff impliedly waives his
or her physician-patient privilege with respect to matters pertaining to those
injuries, a treating physician may decline to participate in ex parte discussions
with defense counsel. . . . [I]t must be presumed that both attorneys and
physicians will conduct themselves ethically. A treating physician has a primary
obligation to tell the truth, regardless of whether his or her testimony will help or
hinder the patient’s case. Attorneys may not seek information not relevant to the
physical or mental condition at issue in the litigation, and non-party treating
physicians have no incentive to make irrelevant disclosures.
Id. at 528.

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It is ORDERED
“Defendants Richard M. Lotspeich, PA-C’s and Peak Orthopedics and Spine, PLLC’s
Supplement to its Motion to Conduct Ex Parte Meetings with Certain Health Care Providers”
[Doc. No. 32] is GRANTED in part and DENIED in part. The defendants may conduct
informal interviews with the listed medical providers outside the presence of the plaintiffs and
their attorneys, provided the defendants provide reasonable notice to the plaintiffs and their
counsel as to each scheduled interview and an opportunity to attend each interview.
Dated this 29th day of January, 2013.

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