DISTRICT COURT
EAGLE COUNTY, COLORADO
885 E. Chambers Road
P.O. Box 597
Eagle, Colorado 81631
Plaintiff:
PEOPLE OF THE STATE OF
COLORADO.
Defendant:
KOBE BEAN BRYANT.
COURT USE ONLY
Case Number: 03 CR 204
Div.: R
Order Granting Motions to Quash Subpoenas Duces Tecum and
RE: Waiver of physician-patient privilege
This matter comes before the Court on various motions to quash
subpoenas duces tecum issued by the Defendant to certain providers of
medical treatment to the victim in this case. The subpoenas, all dated
August 19, 2003, were issued to the following:
1) Angela J. Ammon, M.D., Eagle Valley Medical Center. Dr.
Ammon is employed by the Eagle Valley Medical Center, and is represented
by Michael McConnell. Eagle Valley, the victim and the prosecution have
moved to quash this subpoena. 2) Northern Colorado Medical Center,
Greeley Colorado and the Northern Colorado PsychCare/Family Recovery
Center. The medical facilities are represented by Michael McConnell. The
victim, the prosecution and the medical facilities have moved to quash. 3)
Student Health Services, University of Northern Colorado, Greeley. The
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University is represented by Ronald Lambden. The victim and the
prosecution have moved to quash.
The subpoenas were issued to these medical treatment providers for
“All Medical Records of (name and date of birth of victim) from January 1,
2002 to the present.” Counsel for Defendant has subsequently limited his
search for medical records of the victim to two incidents of medical
treatment in February of 2003, and May of 2003, and for any other medical
records kept by these providers concerning treatment of the victim for
various alleged mental health issues. The Subpoenas were issued while this
case was pending in County Court, and that Court deferred resolution of the
Motions to Quash, and specifically the issue of waiver of medical privilege,
to the District Court.
After hearing, in camera, an offer of proof made by the Defendant on
the issue of waiver of medical privilege by the victim, this Court ordered
that an in camera hearing be held, and testimony received, concerning the
issue of waiver of medical privilege. Further, the Court had ordered that
medical records released inadvertently to the Prosecution and Defense
concerning medical treatment of the victim at Valley View Hospital on May
30, 2003 be destroyed, pending resolution of the waiver issue. The
prosecution and defense have purportedly complied with this Order.
The Court heard testimony on January 23, February 2, and March 2
concerning such waiver. The Court has reviewed the various pleading filed
by the parties, the victim, and the medical facilities. At the request of the
Prosecution and the victim in this case, proceedings concerning the victim’s
medical records and mental health treatment were held in camera. Since the
Court has found that there is no waiver of the physician-patient privilege, the
Court should not reveal, in its Order, the specific facts which lead the Court
to conclude that there was no waiver; to do so would violate the very spirit
and intent of the statutory provision. Therefore, the Court has entered
separate Order finding specific facts, and has directed that the Order be filed
under seal.
I. The medical records sought are communications to which the physician-
patient privilege attaches.
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In her initial Motion to Quash Subpoenas issued for her medical
records by the Defendant, and in all subsequent pleadings filed by the victim
in this case, the victim has asserted that the physician-patient privilege
attaches to the medical records sought by Defendant. She asks this Court to
bar release of her medical records as protected by the statutorily created
physician-patient privilege, as defined by C.R.S. 13-90-107(1)(d). The
Colorado legislature, in adopting this privilege, noted “there are particular
relations in which it is the policy of the law to encourage confidence and to
preserve it inviolate” C.R.S. 13-90-107(1). The purpose of this privilege is
to encourage patients to fully disclose medically relevant information to
their treating physicians in order to promote effective diagnosis and
treatment of the patient by protecting the patient from the possibility of
humiliation or embarrassment through subsequent public disclosure of such
information by the physician. This privilege is an absolute privilege and the
court may not engage in a balancing of interests to determine whether there
is a privilege. Clark v. Dist. Court, 668 P.2d 3 (Colo. 1983); Williams v.
People, 687 P.2d 950, 953 (Colo. 1984)
The victim and the medical facilities, from which records were
subpoenaed, assert that the documents subpoenaed contain privileged and
confidential information. These assertions were supported by affidavits filed
by the medical treatment providers on March 5, 2003. The defense initially
speculated that there might be material contained in these medical records
which was not necessary for the diagnosis and treatment of the patient, and
therefore not made confidential by the physician-patient privilege. However,
the Defense has since conceded that the records sought are medical
treatment records to which the privilege attaches.
II. The victim has not waived the physician-patient privilege with
regard to these subpoenaed treatment records.
At the hearings on this matter, the Defense offered witnesses who
testified concerning statements and actions of the victim before, during and
after the two times she sought medical treatment in February of 2003 and
again in May of 2003. It is the subpoenaed medical records of these two
occasions on which the victim sought medical treatment, and any other
medical records kept by these medical providers concerning treatment of the
victim for various, alleged mental health issues, that are the subject matter of
the Motions to Quash.
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It is the defense’s contention that the victim, by her words and actions
in the presence of the testifying witnesses, waived her physician-patient
privilege, entitling defendant to the victim’s medical records from the
medical facilities where she sought and received treatment. The prosecution
and the victim argue that no waiver was made, explicit or implicit,
concerning these privileged physician-patient communications.
The witnesses who testified were the victim’s mother, the victim’s
two college roommates from her dormitory at the University of Northern
Colorado, a resident assistant from that dorm, a mother and daughter who
were friends of the victim in Eagle, the victim’s former boyfriend, another
male friend of the victim, and Detective Doug Winters of the Eagle County
Sheriff’s Department.
The February 2003 incident
Seven lay witnesses were examined concerning the events leading up
to and including a February 2003 occasion on which the victim sought
medical treatment. None of these witnesses offered testimony sufficient to
support any conclusion that the victim intended, by her actions and words, to
waive her physician-patient privilege with regard to the medical records of
her treatment. These witnesses either observed or were told by the victim
about some circumstances leading up to, and subsequent to the treatment
afforded the victim. Nonetheless, the victim never revealed the specific
nature of her medical treatment, the substance of her conversations with the
medical providers nor other confidential details of her condition and medical
treatment, including diagnosis.
Four lay witnesses testified about events leading up to the February
2003 occasion on which the victim sought medical treatment and the
physician-patient relationship had not yet been established. Some of these
witnesses, and the victim’s mother, testified about conversations with the
victim. In each of the conversations, the victim talked about the general
nature of her medical treatment, but the context of these conversations was
informal and private.
The May 2003 incident
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Four lay witnesses were examined concerning the events leading up to
and including a May 2003 occasion on which the victim sought medical
treatment. None of these witnesses offered testimony sufficient to support
any conclusion that the victim intended, by her actions and/or words, to
waive her physician-patient privilege with regard to the medical records of
her treatment. These witnesses either observed or were told by the victim
about some circumstances leading up to, and then subsequent to the
treatment afforded the victim. Again, however, the victim never revealed
the specific nature of her medical treatment, the substance of her
conversations with the medical providers nor other confidential details of her
condition and medical treatment, including diagnosis.
The witnesses testified concerning their observations of and
conversations with the victim both prior to, and then subsequent to, the May
2003 occasion on which the victim sought medical treatment. There is no
waiver made by conversation or acts prior to the establishment of the
physician-patient privilege where, as here, there was no intent manifested by
the victim to waive prospectively her privilege. Moreover, conversations
subsequent to the medical treatment do not give rise to a waiver, since a
physician cannot waive the privilege-holder’s right to confidentiality by
describing to a third party certain discharge instructions.
Other mental health issues
The defense also questioned the lay witnesses about other statements
and actions of the victim concerning her mental health. None of the
witnesses offered evidence sufficient to support the conclusion that the
victim intended, by her actions or words, to waive her physician-patient
privilege with regard to medical records of her treatment, if any exist.
Although the victim did make general statements to various witnesses
concerning her mental health and possible treatment, she never revealed the
specific nature of her medical treatment for alleged mental health issues, the
substance of her conversations with medical providers, nor any other
confidential details of her condition and medical treatment, including
diagnosis, if any.
These relatively sparse conversations about other mental health issues
took place in casual contexts, with an implicit confidentiality anticipated by
the victim. No persuasive evidence was presented that the victim authorized
any individual to publicly disclose her mental health and medical treatment,
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either in general terms or with regard to specific diagnosis, treatment,
medications, etc.
Detective Winters interview
The mother of the victim and Detective Winters testified concerning
an interview conducted by Detective Winters with the victim, on July 9,
2003. The victim had previously been asked to execute, and did execute, a
physician-patient privilege waiver with regard to the various medical
procedures conducted by Valley View Hospital relating to the sexual assault
complaint from June 30, 2003, which she had made in this case. In contrast,
at this interview with a law enforcement officer concerning the filing of
charges and prosecution of this matter, she was not asked to execute a
written waiver. She did not do so. In fact, there was no discussion of the
privilege, no discussion concerning waiver of the privilege, and no
advisement by the detective concerning the victim’s privilege.
It should further be noted that while the victim did respond to
questions from Detective Winters and she answered questions about the
events which lead to her medical treatment at the facilities in question, she
did not talk about the nature of her medical treatment, the substance of her
conversations with the medical providers nor other confidential details of her
condition and medical treatment. It was clear that the victim and her mother
were extremely reluctant to discuss the prior medical treatment with
Winters. The victim did so only after being told that such a discussion was
necessary to move the case forward and that her statements about the events
leading would be held in confidence.
Any waiver by a person of a personal privilege such as the physician-
patient privilege must be explicit or implied, by words or conduct of the
privilege holder. People v. Deadmond, 683 P.2d 763, 769 (Colo. 1984). A
finding of waiver of the privilege must be supported by evidence showing
that the privilege-holder, by words or conduct, has expressly or impliedly
forsaken his or her claim of confidentiality with respect to the information in
question. Clark v. Dist. Court, 668 P.2d 3, 8 (Colo. 1983). Generally, a
court may find an implied waiver either if the victim has engaged in conduct
inconsistent with the assertion of a right or privilege, or by a clear,
unequivocal, and decisive act by the victim manifesting an intent to
relinquish the right or privilege. Tripp v. Parga, 847 P.2d 165 (Colo. App
1992). A ”waiver of a personal privilege generally requires words or action
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indicating an intent to forgo the specific protection granted by the privilege.”
People v. Dist. Court, 719 P.2d 722, 725 (Colo. 1986), citing Franco v. Dist.
Court, 641 P.2d 922 (Colo. 1982).
There has been no explicit waiver of the privilege with respect to
these records, as there was, by way of contrast, to the records of the sexual
assault examination conducted on July 1, 2003 for which the victim
executed a release of medical records. The defense asserts that through her
discussions with the lay witnesses, the victim has implicitly waived her
physician-patient privilege in these records. Disclosure to third persons does
not always constitute a waiver of the privilege. In Devenyns v. Hartig, 983
P.2d 63, 66 (Colo. App. 1998), the Court of Appeals found that the privilege
is not waived when the privilege holder is required to reveal certain
information to a third party. There are many persuasive cases, from other
jurisdictions including the United State Supreme Court, which suggest that a
finding of waiver must be based on a deliberate disclosure of the specifics of
the privileged communication. Restatement (Third) of Law governing
Lawyers Sec. 79 cmt.e (2000); Brookings v. State, 495 So.2d 135 (Fla.
1986); Commonwealth v. Goldman, 480 N.E. 2d 1023 (Mass. 1985);
Mitchell v. Superior Court, 691 P.2d 642 (Cal. 1984); United States. v.
Rakes, 136 F.3d 1(1st Cir. 1997); Manley v. State, 979 P.2d 703 (Nev. 1999)
While these cases do not interpret our statute, they provide guidance in
determining what objective factors a court should consider in determining
whether a waiver of a statutorily created, personal privilege has been proven.
The victim did not make a disclosure of the specifics of the privileged
matters, nor did her brief and non-specific discussions reveal a clear intent
on her part to waive the privilege. The defense cites People v. Lindsey, 805
P.2d 1134 (Colo.App. 1990), and People v. Thompson, 950 P.2d 608 (Colo.
App. 1997), overruled on other grounds, for the proposition that voluntary
disclosure of otherwise confidential information to a third party waives the
privilege. In Lindsay, the defendant confessed his crime to his stepmother,
in the presence of his brother. The defendant then told his roommate about
the fact of his confession. The defendant asserted the parent-child privilege,
but the court ruled that the voluntary disclosure to his mother in the presence
of his brother (third-party) and the subsequent disclosure of the subject
matter of that alleged privileged communication was a waiver of any
privilege that may have existed. Lindsey, at 1138.
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In the present case, no such third party was present during the
privileged communications between patient and physician, except for the
private discharge meeting between the victim and her doctor, which was
attended by the victim’s mother. Under the facts of this case, the court finds
that such participation by a parent is not indicative of a clear intent on the
part of the victim to forego the confidentiality of the physician-patient
privilege for that or any other medical treatment received by the victim. In
Thompson, the defendant’s wife and doctor testified concerning the reason
the defendant sought medical treatment subsequent to the homicide. The
defendant asserted the physician-patient privilege, but the trial court
admitted the evidence. Rather than addressing any specific finding of
waiver of the privilege by the defendant, the Court of Appeals, in upholding
the conviction, found it was harmless error to admit the testimony.
Thompson, at 613.
The defense further contends that the victim’s July 9, 2003 interview
with Detective Winters was an implicit waiver of her physician-patient
privilege in these medical records. The defense cites two cases from other
jurisdictions which stand for the proposition that cooperation with law
enforcement is an implicit waiver of the physician-patient privilege. People
v. Pagan, 738 N.Y.S.2d 825 (Sup. Ct. N.Y.2002; Thomas v. State, 656
N.E.2d 819 (Ind. Ct. App. 1995). The determination of waiver is inherently
fact specific and the court finds that while those cases are illustrative, they
are not persuasive on the facts of this case. Where, as here, proceeding with
the prosecution of a criminal case was explicitly conditioned on revelation of
otherwise confidential matters, it would be contrary to the stated purposes of
the physician-patient privilege to find a waiver, and permit release of the
records of medical treatment to the Defendant.
The Colorado Court of Appeals found that this privilege may not be
deemed waived by the privilege holder’s unwitting responses to questions
posed by persons who have no personal or fiduciary interest in the
preservation of the privilege. In People v. Silva, 782 P.2d 845 (Colo.App.
1989), the privilege holder was the victim in a sexual assault case who
testified on direct examination at the defendant’s criminal trial about some
of the mental effects the alleged sexual assault had on her. Further, the
Court found that the victim did not interject her mental health into a case
since she was not a party in interest seeking personal relief. Here, as in Silva,
there is no evidence that the victim was advised of the existence of or nature
of the privilege in question or that privilege might be waived by her
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responses to questions asked in the context of the prosecution of a criminal
case, where the victim is a witness, and not a party in the action.
In People v. Sisneros, 55 P.3d 797 (Colo.2002), the Supreme Court
stated that waiver is a form of consent and noted that the victim in that
sexual assault case had testified at a preliminary hearing about the fact of her
medical treatment and about her therapist’s assistance in helping her
recollect the events of the crime. The Court further noted that she did not
reveal the substance of her diagnosis, treatment or other confidential
information and concluded that she did not waive her psychologist-patient
privilege with respect to her medical treatment. The Court in Sisneros,
similar to the finding in Silva, stated the victim in a sexual assault case is a
witness to the case and not a party seeking personal relief or asserting an
affirmative defense based upon a claim of physical or mental condition.
The defense submits that Silva and Sisneros, because those cases
concern waiver of a privilege with regard to post-assault therapy, do not
apply here. The Court of Appeals, however, has stated, in a case concerning
waiver of pre-sexual assault therapy records, “there is no meaningful
distinction between privileged communications taking place before an
alleged assault and those taking place after an alleged assault.” People v.
Tauer, 847 P.2d 259, 261 (Colo.App. 1993).
The Court here is persuaded that the public policy underlying this
statutorily created physician-patient privilege demands a strict adherence to
protection of the privilege by a court when reviewing an assertion of waiver.
Therefore, the Court concludes that there is not sufficient evidence in the
record to support a finding that the victim waived her physician-patient
privilege with regard to the medical treatment records sought by the
Defendant.
Based on the evidence and the law, the Court concludes that the
records sought by the Defense are medical records and contain
communications covered by the physician-patient privilege, as defined by
C.R.S. 13-90-107(1) (d) . Further, the court finds that the victim did not
give consent to disclosure of this privileged information, nor did she
explicitly or implicitly waive the confidentiality of the communications
contained in those records. Therefore, the subpoenas duces tecum issued by
the Defendant to Dr. Ammon of Eagle Valley Medical Center, Northern
Colorado Medical Center, and the Student Health Services concerning
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medical records of treatment received by the victim are hereby quashed.
Further, the Prosecution and the Defense are again ordered to destroy any
copies of the Valley View medical treatment records from the May 2003
incident, and Valley View’s Motion for Protective Order is granted. Further,
this Order applies prospectively to any subpoena duces tecum which might
be issued by the Defendant to Valley View Hospital for any medical records
of the victim, except those from the sex assault exam conducted July 1,
2003.
DATED THIS 21st DAY OF APRIL, 2004
CERTIFICATE OF MAILING
I hereby certify that I have, on this day of __________________, 2004, faxed a
true and correct copy of the above ORDER to:
Mark Hurlbert Terrence P. O’Connor, Esq.
District Attorney Heckman & O’Connor, P.C.
Fifth Judicial District P.O. Box 726
P.O. Box 295 Edwards, CO 81632
Eagle, Colorado 81631 Fax: 970-926-5995
Fax: 970-328-1016 Counsel for Defendant
Ingrid Bakke, Esq. John Clune, Esq.
Boulder County District Attorney’s Office Wheeler & Clune, LLC
P.O. Box 471 Alpine Bank Building, Suite 101
Boulder, CO 80306 Avon, CO 81620
Fax: 303-441-4703 Fax: 970-845-8604
Counsel for Jane Doe
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Pamela Robillard Mackey, Esq.
Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, PC
150 East Tenth Avenue
Denver, Colorado 80203
Fax: 303-832-2628
Counsel for Defendant
Michael T. McConnell, Esq.
McConnell Siderius Fleischner Houghtaling
& Craigmile, LLC
2401 15th Street, Ste. 300
Denver, CO 80202
Fax: 303-458-9520
Counsel for Valley View Hospital, North
Colorado Medical Center and North
Colorado PsychCare/Family Recovery
Center
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