Denver District Court
Denver City and County, Colorado
1437 Bannock Street
Room 256
Denver, CO 80202
Plaintiffs:
PATIENT,

v.
_____________________________
COURT USE ONLY

Defendants:
Case No.:
DOCTOR and PRACTICE, P.C.
Courtroom: 280
ORDER GRANTING IN PART PATIENT’S MOTION FOR PROTECTIVE ORDER
REGARDING EX PARTE INTERVIEWS
Before the Court is Plaintiff Patient’s Motion for Protective Order Regarding Ex Parte
Meetings with Patient’s Treating Health Care Providers (“Motion”). The Court, having reviewed
the Motion, response, reply, the case file and other relevant information, and being otherwise
fully advised, rules as follows:
Defendant seeks to conduct ex parte interviews of eleven health care providers. Some of
these providers treated Patient for complaints regarding pain that are similar to pain she now
alleges were caused by Doctor’s surgery. Others are mental health professionals who treated or
currently are treating Patient. Patient does not object to Defendant’s interview with two health
care professionals who cared for her in connection with the surgery that was performed by
Doctor.
Patient objects to ex parte interviews of the balance of the listed professionals, arguing
that potentially privileged medical information, unrelated to the allegations in her complaint (i.e.,
residually privileged information), might be revealed during the interviews. Patient maintains
that these interviews should not be allowed at all. Alternatively, she wishes to be present during
the interviews to guard against the disclosure of residually privileged information pursuant to the
holding in Samms v. District Ct., 908 P.2d 520 (Colo. 1995).
In Samms, the privilege covering the patient’s communications with the twenty
physicians had been waived only “with respect to information related to her heart
condition obtained by [each] physician in the course of diagnosing or treating
[her] for that condition [that was the subject of her malpractice action].” Id. at
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524. We recognized that the plaintiff had an interest in protecting any residually
privileged information held by non-party medical witnesses, i.e., privileged
information that was not relevant to the malpractice action. Id. at 525. We also
noted that, in some instances, the waiver of the physician-patient privilege
resulting from filing the medical malpractice action might cover virtually all that
was discussed between a physician and patient. Id. In other cases, it might cover
only a small portion of what was discussed. In such instances, “some or all of
such discussions will remain subject to the privilege.” Id. The facts of Samms
clearly fell within this latter category. Indeed, in an order governing the interview
procedures in the case, the trial court noted that the interviews might involve “a
‘reasonable probability of disclosure of material which may be privileged... .’
Reutter v. Weber, 179 P.3d 977 at 982-83 (Colo. 2007).
“Where . . . the non-party medical providers do not possess residually privileged
information, the trial court does not abuse its discretion by refusing to require that the plaintiff be
permitted to attend the interviews of those non-party medical providers.” Reutter v. Weber,
179 P.3d at 979. In short, Reutter confirms that a malpractice plaintiff does not have an
unfettered right to be present at interviews of her medical providers.
Here, Patient complains of right leg pain associated with the surgery performed on her by
Defendant Doctor. The providers that Defendants seek to interview treated Patient for right leg
pain both prior to and after the surgery at issue. However, most of these providers also treated
Patient for other pain-related issues, and some are currently treating her mental health. With
many of these professionals, there is a significant possibility that residually privileged
information might inadvertently be revealed during an ex parte interview. As to others,
particularly her current mental health providers, it does not appear that Patient has waived her
privilege at all.
MR (a nurse practitioner) and NH (a medical doctor) are currently providing mental
health treatment to Patient. They have not provided any medical records to either set of
attorneys. Defendants provide little in the way of confirmation that these two professionals are
treating Patient for “chronic pain,” although it is clear that they have prescribed pain medication.
Patient has withdrawn any claim for compensation for future medication. While Patient has
waived claims relating to right leg and other pain allegedly caused by the surgery at issue, she
has not waived privileges relating to other medical treatment. Importantly, MR and NH are
current treaters, and C.R.S. § 25-1-802(1)(a) indicates that a mental health provider may not
release a patient’s mental health records, even to the patient, until treatment has been completed.
With respect to MR and NH, I find that Patient has not waived her privilege. To the
extent they are treating Patient for pain, there are several other medical providers who can
provide information about the type and location of the pain about which Patient complained both
before and after surgery. The risk that residually privileged information might be revealed in an
ex parte interview setting is simply too great. Moreover, I find that even the presence of
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Patient’s counsel at such an interview, as set forth in Samms, will not provide sufficient
protection of privileged information because these two providers are currently treating her.
There are too many unknowns to allow an interview to proceed under any circumstances. While
records regarding Patient’s treatment might shed light on the nature of her treatment, it appears
that C.R.S. § 25-1-802(1)(a) also prohibits the disclosure of such records.
Drs. BW, SM and VR treated Patient for various pain complaints between 1999 and 2005
when she lived in [another city]. All of this treatment predated the surgery. At least some of the
treatment appears to be for symptoms that Patient attributes to the surgery performed by Doctor
in 2009.
As to Dr. BW, Patient saw him for treatment of pain, including pain relevant to her
claims in this case. The records regarding her treatment with Dr. BW have been produced
without any assertion of privilege. However, it also appears that Dr. BW treated her for
additional pain complaints that are not a part of this case. This same analysis applies to Dr. VR.
As to both of these providers, it appears that there may be some residual medical privilege that
has not been waived. This is particularly true since the treatments all pre-dated Doctor’s surgery.
Accordingly, Defendants may interview Dr. BW and Dr. VR, but such interviews must be
conducted in accordance with the procedures set forth in Samms v. District Ct., 908 P.2d 520
(Colo. 1995). Counsel for Patient must be notified in advance regarding the interviews, and
counsel may be present at the interviews to protect any residually privileged information.
Dr. SM is a psychiatrist who also treated Patient for pain while she lived in [another city].
Here, medical records regarding the treatment he provided have been produced, and it appears
that at least some of her complaints mirror those that she is alleging were caused by the surgery
at issue. Because Dr. SM is a mental health professional, it appears that there is a very high
possibility that residual privilege remains with respect to his treatment. Accordingly, any
interview by Defendants’ counsel may only be conducted in accordance with Samms. Counsel
for Patient must be notified in advance regarding the interviews, and counsel may be present at
the interviews to protect any residually privileged information.
Dr. KH and Dr. GM evaluated a mass is Patient’s right leg. Patient is claiming that she
suffers from pain in her right leg as the result of the surgery performed by Doctor. Their records
have been disclosed. Nevertheless, it appears that there could well be residually privileged
information in the possession of these two doctors. They evaluated Patient for cancer, not pain.
Accordingly, any interview by Defendants’ counsel may only be conducted in accordance with
Samms. Counsel for Patient must be notified in advance regarding the interviews, and counsel
may be present at the interviews to protect any residually privileged information.
PM and DW are physical therapists who treated Patient after her surgery. The parties
provide little information as to these two treaters. However, Defendants allege that both
provided care to Patient which was directly related to the surgery performed by Doctor. Patient
does not seriously argue to the contrary. It appears quite likely that PM and DW have little in the
way of privileged information. Accordingly, Defendants may conduct ex parte interviews of PM
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and DW pursuant to Reutter.
Patient’s Motion is GRANTED IN PART. Defendants may not conduct interviews of
any kind with MR or NH. Defendants may conduct interviews of BW, SM, VR, KH and GM
pursuant to the procedures set forth in Samms v. District Ct., 908 P.2d 520 (Colo. 1995).
Defendants may conduct interviews of JR, TM, PM and DW pursuant to Reutter v. Weber, 179
P.3d 977, 979 (Colo. 2007).
Entered this _____ day of ______, 20___
BY THE COURT:
J. Eric Elliff
District Court Judge
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