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Samms v. District Court12/18/1995
EN BANC
The petitioners, Judy Anne Samms (hereafter referred to as "Samms") and her husband, Frank Clifford Samms, have initiated this original proceeding pursuant to C.A.R. 21. The petitioners seek relief from an order entered by the respondent, the District Court for the Fourth Judicial District of the State of Colorado (the trial court), which order authorized the attorney representing Dr. Michael Bjork, the defendant in a medical malpractice action filed by the petitioners, to conduct ex parte interviews with several physicians who had treated Samms. Having issued a rule to show cause why the relief requested should not be granted, we now discharge the rule in part and make the rule absolute in part.
I
On March 2, 1991, Samms visited the emergency room of a Colorado Springs hospital complaining of upper abdominal pain. Bjork, her treating physician, conducted several tests and concluded that Samms was suffering from peptic acid disease with reflux esophagitis. He then discharged her from the emergency room.
Samms continued experiencing medical difficulties and sought medical advice and treatment for her condition from numerous other physicians. When a cardiologist concluded that Samms had suffered a myocardial infarction on March 2, 1991, resulting from a pre-existing condition of myocardial ischemia, the petitioners initiated this medical malpractice action. Samms alleges that Bjork negligently failed to diagnose and properly treat her on March 2, 1991, and that as a result of such negligence she suffered physical and mental injuries. Her husband alleges that he suffered a loss of consortium as a result of Bjork's negligence.
During the course of discovery Bjork's attorney sent a letter dated July 23, 1993, to the petitioners' attorney. The letter informed the petitioners' attorney that Bjork's attorney intended "to conduct ex parte interviews" with five physicians who had treated Samms and that "if any particular interview poses a reasonable concern that privileged matters not already waived by the filing of this suit will be disclosed, I will provide you with adequate notice and the opportunity to be present." The petitioners objected to any ex parte interviews by Bjork's attorney with any physicians who had treated Samms and filed a motion with the trial court to prohibit Bjork's attorney from conducting the proposed interviews.
On November 13, 1993, the trial court entered an order (hereafter referred to as the "1993 order") denying the petitioners' motion and authorizing Bjork's attorney to interview the physicians in the absence of Samms or Samms' attorney. In so doing, the trial court stated that it declined to follow this court's decision in Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (1975). In its 1993 order the trial court stated that Samms had placed her physical and mental condition in issue and "any other injuries or conditions, 'which arguably could have caused or contributed to the injuries or damages alleged in the complaint.'" (Citations omitted.) The order also contained the following pertinent provisions:
2. The scope of the waiver of the privilege has been set forth above. Based thereon, counsel for the [petitioners] may not "caution" any of the listed physicians in the manner suggested in his Reply Brief or in any similar manner. Any physician who is interviewed by defense counsel, ex parte, shall be provided with a copy of this Order so that he is aware, before the interview, of the scope of the waiver of the privilege.
3. Counsel for [Bjork] shall at all times be aware of the scope of the waiver of the privilege se
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