Blatchley et al v. Cunningham et al
Filing
94
ORDER granting in part and denying in part 83 Motion for Leave. By Magistrate Judge Nina Y. Wang on 9/24/15. (nywlc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00460-WYD-NYW
JODY BLATCHLEY, and
DELFINA BLATCHLEY,
Plaintiffs,
v.
RICHARD CUNNINGHAM, M.D.,
PETER JANES, M.D.,
TODD WILLIAM PETERS, M.D.,
MATTHEW CAIN, PA-C,
TIMOTHY SMITH, PA-C,
CAMERON YOUNGBLOOD, PA-C,
ST. ANTHONY SUMMIT MEDICAL CENTER, and
VAIL-SUMMIT ORTHOPAEDICS, P.C.,
Defendants.
ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendants’ Motion to Conduct Ex Parte Interviews
With Plaintiff’s Medical Providers and Request for Expedited Ruling (the “Motion”). [#83, filed
September 10, 2015]. The matter was referred to this Magistrate Judge pursuant to the Order
Referring Case dated March 5, 2015 [#4] and the memorandum dated September 10, 2015 [#83].
For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs Jody and Delfina Blatchley filed their Complaint on March 4, 2015, asserting
eleven tort-based claims for negligence, vicarious liability, respondeat superior, and loss of
consortium1 arising out of a March 5, 2013 snowboarding accident involving Jody Blatchley
(“Mr. Blatchley”) at Keystone Resort in Summit County, Colorado. [#1 at ¶¶ 18, 120-123, 125129, 131-134, 136-140, 142-146, 148-151, 153-157, 159-163, 165-169, 171-175, 177-178]. Mr.
Blatchley underwent surgery soon after the accident and subsequently developed compartment
syndrome in his left leg.2 See, e.g. [#1 at ¶¶ 23, 68-70]. Plaintiffs allege that Defendants were
negligent in the care of Mr. Blatchley by failing to properly monitor, evaluate, and treat him with
respect to the compartment syndrome, which has left Plaintiff with nerve pain and decreased
function of his left leg. See generally [#1; #62 at 3].
The following reflects the sequence of care received by Mr. Blatchley, as set out in
Defendants’ instant Motion, which is not refuted by Plaintiffs’ Response. Compare [#83] with
[#89]. Mr. Blatchley was initially examined by Dr. Claude L. Lavallee at St. Anthony Keystone
Medical Clinic, where x-rays of Mr. Blatchley’s right ankle indicated a comminuted calcaneal
fracture and x-rays of his left knee indicated a comminuted fracture of the tibial plateau. [#1 at ¶
19; #83 at 2]. These x-rays were interpreted by radiologist Dr. Craig Stewart. [#83 at 2].
Plaintiff was thereafter transferred to Defendant St. Anthony Summit Medical Center, where he
was evaluated by emergency room physician Dr. Mark Doucett. Dr. Doucett ordered a CT of
Plaintiff’s lower right extremity, which showed a severely comminuted, depressed and displaced
calcaneal fracture. [#83 at 3]. Radiologists Dr. Christopher Leoni and Dr. Craig Stewart
interpreted these x-rays. [Id.] Defendant Richard Cunningham, M.D. evaluated Plaintiff at this
1
At all times relevant to the Complaint Jody and Delfina Blatchley were married and living
together as husband and wife. [#1 at ¶ 177].
2
“Compartment syndrome occurs when pressure builds up inside an enclosed space in the body
and usually results from swelling after an injury. The pressure impedes the flow of blood to and
from affected tissues.” [#83 at 4].
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time, along with Dr. Doucette, and Defendant Cunningham operated on Mr. Blatchley’s left
tibial fracture during the evening of March 5, 2013. [Id.] Fluoroscopic imaging was performed
during the surgery and interpreted by radiologist Dr. Charles Norton. [Id.] Anesthesiologist Dr.
Anthony Brocato administered anesthesia care to the Plaintiff. [Id.]
Following surgery, Defendant Cunningham contacted his partner, Dr. John Elton, a
specialist in foot and ankle injuries, to treat Mr. Blatchley’s right calcaneus fracture. On March
7, 2013, Dr. Elton performed an open reduction internal fixation of the right calcaneus fracture.
[#83 at 3]. Anesthesiologists Dr. Brocato and Dr. Robert Engelhart provided anesthesia care
during that surgery. [Id.]
Following his March 5, 2013 surgery, Mr. Blatchley’s injuries were evaluated and treated
by physician’s assistants (“PA”) employed by Defendant Cunningham and Dr. Elton’s medical
practice, Defendant Vail-Summit Orthopaedics, P.C. [#83 at 3]. Mary Bryan and Brian Davis
were two PAs who treated Plaintiff. [Id.]
On March 10, 2013, Mr. Blatchley underwent additional radiographic studies, including
an x-ray of his left knee, which were interpreted by radiologist Dr. Robert Liebold. [#83 at 4].
A March 29, 2013 x-ray of Plaintiff’s knee was interpreted by radiologist Dr. Steven Ross. [Id.]
On March 11, 2013, Defendant Peter Janes operated on Plaintiff as to the diagnosis of
compartment syndrome of the left leg. [#83 at 4]. Anesthesiologist Dr. Kathleen Jenkins
provided anesthesia care during that surgery. [Id.] At that time, tissue was removed from Mr.
Blatchley’s leg and sent to pathologist Dr. Stephen Worth for evaluation. [Id.] Defendant Janes
performed a debridement on March 13, 2013, after which tissue was sent to and evaluated by
pathologist Dr. Mary Kenny-Moynihan. [Id.]
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Between the March 5, 2013 surgery performed by Defendant Cunningham and the March
11, 2013 surgery performed by Defendant Janes, Plaintiff was cared for and evaluated by a
number of nurses who were employed by Defendant St. Anthony Summit Medical Center. [#83
at 4]. On April 15, 2013, Mr. Blatchley was transferred to a rehabilitation facility in his home
country of New Zealand, where the injuries to his left leg and right heel were managed by Dr.
Mark Clatworthy, Dr. Robert Orec, and Dr. Mike Anderson. [Id. at 4-5].
Defendants filed the pending Motion on September 10, 2015, seeking leave to conduct ex
parte interviews with medical providers whom Defendants “consulted with,” and whom
Defendants argue pose “essentially” no risk of divulging residually privileged information. [#83
at 5].
Defendants also request an expedited ruling by the court in advance of Plaintiffs’
depositions that are scheduled for September 29 and 30, 2015. Defendants identify the following
providers whom they seek to interview:
Emergency Department physicians: Dr. Lavallee and Dr. Doucette
Anesthesiologists: Dr. Brocato, Dr. Engelhart, and Dr. Jenkins
Radiologists: Dr. Stewart, Dr. Leoni, Dr. Leibold, Dr. Norton, and Dr. Ross
Pathologists: Dr. Worth and Dr. Kenny-Moynihan
Employees of Defendant Vail Summit Orthopaedics: Dr. Elton, PA Bryan, and PA Davis
Nurses at Defendant St. Anthony Summit Medical Center: Renei Bohrer, Ashley Allen,
Steve Plante, Annadane Dayton, Della Crone, Tara Styck, Doris Welch, Karen Boardley,
Jacqueline Benavides, Jennifer Yoakum, and Katherine Conkle
New Zealand Treating physicians: Dr. Clatworthy, Dr. Orec, and Dr. Anderson
On September 15, 2015, to accommodate the request for an expedited ruling, this court
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ordered Plaintiffs to file a response by September 18, 2015, and directed that no reply would be
permitted without leave of court. [#87]. Plaintiffs filed a timely Response. [#89].
ANALYSIS
Under Colorado law, communications between physicians and their patients are generally
privileged. “Protecting these communications from disclosure promotes ‘effective diagnosis and
treatment of illness by protecting the patient from the embarrassment and humiliation’ that could
result from divulging her medical information.” Reutter v. Weber, 179 P.3d 977, 980 (Colo.
2007) (quoting Alcon v. Spicer, 113 P.3d 735, 738 (Colo. 2005)). To “encourage confidence and
to preserve it inviolate,” Colorado Revised Statute section 13-90-107(1)(d) prohibits a physician,
surgeon, or registered professional nurse duly authorized to practice his or her profession
pursuant to the laws of Colorado or any other state from serving as a witness “as to any
information acquired in attending the patient that was necessary to enable him or her to prescribe
or act for the patient,” without the consent of that patient. Two exceptions to this rule are
relevant to the instant Motion. First, the privilege does not prevent a medical provider who is
sued for malpractice from disclosing confidential medical information concerning the subject
matter of the plaintiff's lawsuit. Colo. Rev. Stat. § 13-90-107(1)(d)(i). Second, the statutory
privilege does not apply to a “physician, surgeon, or registered professional nurse who was in
consultation with a physician, surgeon, or registered professional nurse being sued . . . on the
case out of which the said suit arises.” Colo. Rev. Stat. 13-90-107(1)(d)(ii). Plaintiffs bear the
burden of establishing applicability of the physician-patient privilege (Alcon, 113 P.3d at 739),
and “[i]ssues arising in the course of pretrial discovery are committed to the discretion of the trial
court.” Reutter, 179 P.3d at 984 (citation omitted).
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I.
New Zealand Treating Physicians
Plaintiffs argue the court should deny Defendants’ request to conduct ex parte meetings
with Drs. Clatworthy, Orec, and Anderson because these physicians are not consulting
physicians within the meaning of the statute. [#89 at 3]. [law] The court agrees. In Reutter,
“consultation” was defined to include “both the sued provider and those who acted in
consultation with her.” 179 P.3d 981. In other words, the statutory exception applies to the
medical providers who played “a role in the patient’s treatment” in the sense of lending advice,
knowledge, and special skills to the defendant physician in the course of action that constitutes
the malpractice claim. Id. The exception does not extend to physicians “acting independently
and successively on the same injury or illness…” Id. (quoting Brown v. Guiter, 256 Iowa 671
(1964)). See also Hogue v. Massa, 80 S.D. 319 (1963) (distinguishing between consultation that
occurred during the time the defendant doctor ministered to patient and consultation that occurs
after the patient has been treated those doctors).
There is no indication that the New Zealand physicians ever discussed Plaintiff’s
condition with Defendants, or were otherwise involved in his treatment immediately following
the March 5, 2013 accident. On this basis alone the Motion is denied as to the New Zealand
physicians. In addition, the Parties do not address, and therefore the court only notes that it is
uncertain of, the applicability of the Colorado physician-patient privilege to care undertaken in
an entirely different sovereign nation or whether such ex parte communications would be
permissible under New Zealand law.
II.
United States Physicians and Medical Providers
As to the remaining physicians and medical providers (“American Providers”), Plaintiffs
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do not argue that these professionals were not “in consultation with” Defendants Cunningham or
Janes, or that they otherwise fall outside of the exception found in section 13-90-107(1)(d)(ii).
Instead, Plaintiffs argue that the requested ex parte meetings will result in “great unfairness,” and
encourage the court to consider the purposes of pretrial discovery, including (1) eliminating
surprise at trial; (2) discovering all relevant evidence; (3) simplifying the issues; and (4)
promoting the expeditious settlement of cases. [#89 at 4-5 (citing Camp Bird Colorado Inc. v.
Bd. of County Comm’rs, 215 P.3d 1277, 1291 (Colo. App. 2009)].
As a preliminary matter, I find that the statutory exception contained in section 13-90107(1)(d)(ii) applies to the information relevant to this lawsuit that the American Providers
acquired while treating Mr. Blatchley.
Unlike the New Zealand physicians, the American
Providers attended to and/or helped Defendants treat Plaintiff between his leg and foot surgery
on March 5, 2013 and compartment syndrome surgery on March 11, 2013 as part of a unified
course of treatment.
See Reutter, 179 P.3d at 981 (recognizing that a “unified course of
treatment” contemplates multiple medical providers working collectively and collaboratively to
care for a patient). Drs. Lavallee and Doucette were responsible for the initial evaluation of
Plaintiff’s injuries on March 5, 2013. Drs. Stewart, Leoni, Leibold, Norton, and Ross are
radiologists who reviewed and interpreted Plaintiff’s x-rays.
Drs. Brocato, Engelhart, and
Jenkins administered anesthesia care for Plaintiff during his two surgeries. Drs. Worth and
Kenny-Moynihan assessed Plaintiff’s tissues during this time. Finally, Dr. Elton, PA Bryan, PA
Davis, Renei Bohrer, Ashley Allen, Steve Plante, Annadane Dayton, Della Crone, Tara Styck,
Doris Welch, Karen Boardley, Jacqueline Benavides, Jennifer Yoakum and Katherine Conkle
observed and cared for Plaintiff at various points between March 6 and March 11, 2013.
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In
finding that section 13-90-107(1)(d)(ii) applies to the information obtained by these individuals,
I decline to consider Defendants’ arguments regarding waiver.
Next, Plaintiffs argue that the ex parte meetings could result in inadvertent disclosure of
Mr. Blatchley’s residually privileged health information. [#89 at 8-9]. Plaintiffs are correct that
the court should guard against the disclosure of residually privileged information, and should
allow the plaintiff to attend interviews with medical providers if there is a high risk that
residually privileged information will be divulged. See Reutter, 179 P.3d at 982; see also Samms
v. District Court, 908 P.2d 520 (Colo. 1995). However, no such risk is present here. Despite
Plaintiffs’ assertion to the contrary, the four-page, eight-entry privilege log for Mr. Blatchley’s
Rule 26(a)(1) initial disclosures attached to their Response does not support the assertion that the
American Providers possess residually privileged information or are likely to divulge same.
[#89-2].
It appears that only four pages could potentially contain any residual health
information. [Id.] More likely, Mr. Blatchley gave limited medical history (as suggested by the
descriptions in the privilege logs) that does not pose a significant risk.
The conclusion that the medical care providers likely do not have significant residual
health information is supported by the fact that the Blatchleys are residents of New Zealand and
Mr. Blatchley was visiting Keystone Resort in his capacity as Coach of the New Zealand
Olympic Snowboard Team. [#1 at ¶¶ 6-7, 17]. As in Reutter, the American Providers were “‘in
consultation with’ each other in a unified course of treatment—a course of treatment that forms
the basis of the malpractice action.” 179 P.3d at 982. The Reutter court observed that in such a
situation, “the risk that residually privileged information will be divulged is relatively low”; as
opposed to in Samms where twenty medical providers administered separate treatments over
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what appeared to have been a significant period of time, and that court recognized the plaintiff’s
interest in protecting “privileged information that was not relevant to the malpractice action.” Id.
at 983 (citing Samms, 908 P.2d at 525-26).
Finally, the court disagrees that allowing ex parte meetings would frustrate the purpose of
pretrial discovery. Each of the factors cited by Plaintiffs is promoted by allowing Defendants to
meet with the American Providers. Plaintiffs cite Samms for the proposition that informal
communications between a defense attorney and non-party physicians may promote the purposes
of pre-trial discovery only where the court “assur[es] that both parties have access to an informal,
efficient, and cost-effective method for discovering facts relevant to the proceedings.” [#89 at 5
(quoting Samms, 908 P.2d at 526)].
However, for reasons addressed above, Samms is
distinguishable from this case with respect to the privileged information at issue, and Plaintiffs
cite no other case law to support that the court is responsible for facilitating equal, informal
access to witnesses.
Furthermore, with the exception of radiologists Drs. Leoni, Stewart, Norton, and Liebold,
and pathologists Drs. Worth and Kenny-Moynihan, the American Providers were employed by
Defendants St. Anthony Summit Medical Center and/or Vail-Summit Orthopaedics at all times
relevant to the Complaint. [See #89 at 2]. It is reasonable to believe that counsel for St.
Anthony’s Medical Center and Vail Orthopaedics may represent these additional health care
providers in any upcoming deposition. Requiring all communications between such employees
and counsel for the organizations to include Plaintiffs or requiring all of these medical providers
to obtain separate counsel simply to have protected communications is onerous, and does not
facilitate efficient or cost-effective methods of discovery.
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Finally, such a requirement is not only impractical but in contravention of Rule 1 of the
Federal Rules of Civil Procedure, which requires the court and all parties to construe and
administer such rules to “secure the just, speedy, and inexpensive determination of every action
and proceeding.” Fed. R. Civ. P. 1. The Federal Rules of Civil Procedure neither preclude ex
parte interviews with these additional medical care providers nor require that such interviews be
held only in the presence of Plaintiff’s counsel. The conclusion reached in this Order does not
alter the position the Parties would have held under any other circumstance, and the matter is
before the court only as a result of the question regarding residually privileged health
information. Nothing prevents Plaintiffs from seeking to depose these individuals; and indeed,
Plaintiffs represent they have taken such steps with respect to “several of these nurses,” but
without success. [#89 at 6].
To the extent Plaintiffs contend their efforts to engage in discovery with the American
Providers have been thwarted by Defendants, or otherwise argue they are prejudiced by the
occurrence of the requested meetings, Plaintiffs should squarely raise that issue to the court
through the informal dispute process, and if it remains unresolved, through a formal discovery
motion—not through the back door on this instant motion.
Accordingly, IT IS ORDERED that the Motion [#83] is GRANTED IN PART and
DENIED IN PART.
DATED: September 24, 2015
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
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