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Alcon v. Spicer6/6/2005
ued liberally in order to accomplish those goals, both the legislature and this court have recognized the need to limit discovery in certain circumstances. Id. The exception from C.R.C.P 26(b)(1) of privileged material reflects this recognition.
Privilege is defined in section 13-90-107, C.R.S. (2004), which prevents certain persons from being examined as witnesses in order to protect "particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate." The physician-patient relationship is among those relations the General Assembly sought to protect. To that end, the statute mandates: a physician, surgeon, or registered professional nurse duly authorized to practice his profession pursuant to the laws of this state or any other state shall not be examined without the consent of his patient as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. § 13-90-107(d), C.R.S. (2004). This privilege applies "equally to in-court testimony and to pretrial discovery of information." Weil v. Dillon Companies, Inc., 109 P.3d 127, 129 (Colo. 2005). Taken together, C.R.C.P. 26(b)(1) and section 13-90-107(d) establish that, even if relevant to the subject matter involved in the pending action, a party is not necessarily entitled to discovery of information from a physician relating to the treatment of a patient.
The physician-patient privilege exists "to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused" by the disclosure of that information. Weil, 109 P.3d at 129. In addition to "inspiring the making of medical confidences," the privilege can also be viewed as recognizing the inherent importance of privacy in the physician-patient relationship by protecting the confidences once made. McCormick on Evidence § 105 (John W. Strong, ed., 5th ed. 1999).
Because the privilege is primarily designed to protect the patient, he or she may waive its protections. See, e.g., Clark v. Dist. Court, 668 P.2d 3, 8 (Colo. 1983). A waiver, which is really a form of consent to disclosure, can be implied through a patient's conduct as well as obtained by express authorization to the release of information. Id. Waiver of the physician-patient privilege occurs when the patient has either expressly or impliedly "forsaken his claim of confidentiality with respect to the information in question." Id. Through application of privileges and waivers of privileges, courts attempt to balance the right to confidentiality in communication and the need to ascertain the truth to serve justice. See Valerie Reighard, Evidence: Protecting Privileged Information- A New Procedure for Resolving Claims of the Physician-Patient Privilege in New Mexico, 32 N.M. L. Rev. 453, 456-57 (2002). The claimant of the privilege bears the burden of establishing the applicability of the privilege. Clark, 668 P.2d at 8. Once the privilege has been established, the burden of demonstrating waiver rests with the party seeking to overcome the privilege. Id.
One way a party can establish waiver is by showing that the privilege holder "has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense." Id. at 10. Making such a showing does not mean that the party seeking to overcome the privilege has established a complete waiver of all communications between the physician and patient. The privilege is still retained with respect to communications unrelated to the claim or defense. Recently, we explained in Weil that a plaintiff, by making typical personal injury claims, "did not waive his physician-pati
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