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Alcon v. Spicer6/6/2005
ent privilege for medical records wholly unrelated to his injuries and damages claimed." 109 P.3d at 128 (emphasis added).
The Colorado Supreme Court has not always recognized that initiating litigation results in an implied waiver of the physician-patient privilege. See Riss & Co. v. Galloway, 108 Colo. 93, 99, 114 P.2d 550, 553 (1941) (upholding exclusion of testimony of plaintiff's physicians in personal injury action although "doubtless the testimony of both these witnesses was relevant and material to the issues involved"). Since recognition, implied waivers have always been limited by the circumstances of the case, rather than amounting to consent to general disclosure of all of the patient's communications with his or her physician. We first acknowledged the notion of waiver in Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963), where the plaintiff in a personal injury lawsuit testified about the details of treatment provided by two physicians. The waiver recognized was narrow. We held that "as to the matters testified to by the plaintiff the protection of the [privilege] statute was waived." Id. at 108, 571 (emphasis added).
Decades later, in Clark, we acknowledged a broader waiver than that found in Mauro, but one still limited by the plaintiff's allegations. We stated "when the privilege holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition." 668 P.2d at 10 (emphasis added). That standard was echoed in later decisions, always with the qualifier that the waiver applies only to communications respecting the injuries and damages claimed by the privilege holder. For example, in Samms v. Dist. Court, 908 P.2d 520, 529 (Colo. 1995), while considering whether defense attorneys could conduct an ex parte interview of the plaintiff's physician, we explained that "the scope of any implied waiver necessarily depends on the nature of the claim asserted by the patient." Because the plaintiff in Samms was making a claim for medical malpractice for failure to diagnose a heart condition, we observed that "by injecting that issue into the case, Samms waived her physician-patient privilege with respect to information related to her heart condition obtained by her physician in the course of diagnosing or treating Samms for that condition." Id. at 524 (emphasis added).
Expanding on that logic in two later opinions, we held that making a generic claim for mental suffering incident to a physical injury in a personal injury case did not amount to an implied waiver of the psychotherapist-patient privilege. Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 859 (Colo. 2004); Johnson v. Trujillo, 977 P.2d 152, 153 (Colo. 1999). In both Hoffman and Johnson, the plaintiffs claimed pain and suffering and emotional distress as categories of damages for injuries caused by the defendants' alleged negligence. Hoffman, 87 P.3d at 859; Johnson, 977 P.2d at 153. The defendants in both cases sought broad discovery of the plaintiffs' mental health records, arguing that they had waived the psychotherapist-patient privilege by injecting their mental condition into the case.
The defendant in Hoffman sought disclosure of full mental health records for the past ten years, including records of psychotherapy the plaintiff received for a two-year period ending approximately ten years before the accident. The defendant in Johnson claimed she was entitled to view the records from the plaintiff's marriage counselor and psychiatrist relating to her divorce and treatment for depression in connection with her divorce. In both cases, we noted
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