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Weil v. Dillon Companies1/24/2005
87 P.3d at 863. Rather, waiver of the physician-patient privilege occurs when "the privilege holder has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense." Clark, 668 P.2d at 10. See also Hoffman, 87 P.3d at 863; and Johnson, 977 P.2d at 155.
With these principles in mind, we turn to the facts of this case.
III.
Dillon Companies claims that Weil waived the physician-patient privilege when he filed the lawsuit seeking damages for emotional injuries and for the loss of enjoyment of life. Thus, Dillon Companies contends that it is entitled to all of Weil's medical records from those providers who delivered care to Weil. It asserts that access to these records would "assure full discovery" as to the cause of the claimed injuries as well as determine the extent that an injury from the slip and fall incident is related to some pre-existing condition.
Weil concedes that he has waived confidentiality in his medical records for those conditions that are at issue in the lawsuit. In fact, he provided a limited release of his medical records from several different healthcare facilities that treated him for his injuries. However, Weil claims that he must now choose between signing the releases, thereby disclosing medical records that are "not in any way limited to the conditions at issue," or being limited in the amount of damages he could recover.
To assist us in our analysis we turn to our cases of Johnson v. Trujillo and Hoffman v. Brookfield Republic, Inc., which addressed whether a plaintiff in a personal injury claim impliedly waived the physician-patient or psychotherapist-client privilege by asserting general claims of pain and suffering.
Elizabeth Johnson claimed mental suffering as a result of her injuries arising out of an auto accident caused by the defendant, Charlotte Trujillo. Johnson, 977 P.2d at 153. Trujillo sought medical records from Johnson's psychiatric treatments as well as from her marriage counseling sessions.
Id. at 153-54. While Trujillo conceded that these records were privileged communications, she argued that Johnson had impliedly waived this privilege by alleging emotional and mental suffering and that justice would be harmed if these records were suppressed. Id. at 156. We found these arguments unpersuasive and held that while Johnson had made a limited waiver of her physician-patient privilege, she had not thereby impliedly made a complete waiver of this privilege or the psychotherapist-client privilege simply by making "generic claims" for mental suffering and for the loss of the enjoyment of life. Id. at 157. Critical to our decision was the fact that Johnson did not make any independent tort claim for either the intentional or negligent infliction of emotional distress where liability would be based on the cause of the plaintiff's mental condition. Rather, the damages for mental suffering were "incident to the plaintiff's physical injuries and not exceed the suffering and loss an ordinary person would likely experience in similar circumstances." Id. at 157.
Recently, we re-examined and reaffirmed our holding in Johnson that a plaintiff does not impliedly make a complete waiver of the psychotherapist-client privilege simply by making generic claims of mental suffering incidental to the underlying suit. Hoffman, 87 P.3d at 863. Nancy Hoffman, the plaintiff in a personal injury claim, claimed damages for "pain and suffering and emotional distress" as a result of her fall. The defendant sought an order compelling Hoffman to release her mental health records for the ten years prior to the slip and fall injury.
Id. at 859.
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