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Alcon v. Spicer6/6/2005
has waived her privilege with respect to records pertaining to "lower back pain, neck and shoulder pain, chipped tooth depression."
Spicer argues that because Alcon is making claims for future damages, the wide range of medical records that could have some bearing on her life expectancy are discoverable because they are relevant to the amount of future damages she can be awarded. He also submits that Alcon's general medical records will be helpful in assessing her quality of life for purposes of defending against claims of damages for loss of enjoyment of life. Although Spicer is correct that some information in Dr. Aschenbrenner's records may be relevant in this manner, the tangential relevance of this information is not enough to make the records "related to the injuries and damages claimed" such that they come within the waiver. We have repeatedly stated that "relevance alone cannot be the test" for waiver of the physician-patient or psychotherapist-patient privilege. Weil, 109 P.3d at 131; Hoffman, 87 P.3d at 864; Johnson, 977 P.2d at 157. Extending waiver to anything that is relevant would be to allow the exception to destroy the privilege. Such a standard "would ignore the fundamental purpose of evidentiary privileges, which is to preclude discovery and admission of relevant evidence under prescribed circumstances." R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). Moreover, there are many means available to Spicer to learn information having an impact on Alcon's life expectancy without intruding into Alcon's private relationships with her physicians, such as through interrogatories or asking Alcon to submit to a C.R.C.P. 35 physical examination.
Not having had the benefit of our opinion in Weil, the trial court abused its discretion by issuing such a broad order. To comply with the privilege statute, the order should have been tailored to the scope of the waiver of the physician-patient privilege, meaning it should have been tailored to the injuries and damages claimed by Alcon. As Alcon is claiming damages for injuries to her shoulder, back and neck, a chipped tooth and depression, only communications relating to those injuries in her pharmaceutical and Dr. Aschenbrenner's records may be released.
The procedure for ensuring that discovery of medical records is limited to the scope of the waiver of the physician-patient privilege has not yet been well-defined. We endeavor to provide guidance to litigants and the trial courts in this area today.
Rule 26(b)(5) of the Colorado Rules of Civil Procedure was patterned after Rule 26(b)(5) of the Federal Rules of Civil Procedure. It provides:
When a party withholds information required to be disclosed or provided in discovery by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
C.R.C.P. 26(b)(5). Because our rule is modeled after the federal rule, commentary and caselaw on the federal is instructive in the interpretation of our own rule.
F.R.C.P. 26(b)(5) was enacted to direct litigants on when and how to assert privilege claims. See Rebecca A. Cochran, Evaluating Federal Rule of Civil Procedure 26(b)(5) as a Response to Silent and Functionally Silent Privilege Claims, 13 Rev. Litig. 219, 220 (1994). Under the Rule, when a party wishes to assert privilege in response to a discovery request he or she must notify the party seeking discl
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