Chapter 12 - § 12.4 • PHYSICIAN-PATIENT PRIVILEGE

• Jurisdiction: Colorado

§ 12.4 • PHYSICIAN-PATIENT PRIVILEGE

§ 12.4.1—Purpose and Statutory Provision

Colorado law recognizes the physician-patient privilege. The privilege is codified at C.R.S. § 13-90-107(1)(d), which states that, as a general rule,

[a] physician, surgeon, or registered professional nurse duly authorized to practice his or her profession pursuant to the laws of this state or any other state shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient . . . .
Practice Pointer
The physician-patient privilege generally is not recognized in federal courts in Colorado. See, e.g., Fox v. Gates Corp., 179 F.R.D. 303, 305 (D. Colo. 1998) (noting that "[n]either the Supreme Court, nor the Tenth Circuit . . . has recognized the existence of a physician-patient privilege under Fed.R.Evid. 501"); but see Lovato v. Burlington N. Santa Fe R.R. Co., 201 F.R.D. 509 (D. Colo. 2001) (recognizing the existence of the physician-patient privilege identical to C.R.S. § 13-90-107(1)(d)). Instead, a federal court will evaluate a party's request for a plaintiff's general medical records based on the relevancy standards in F.R.C.P. 26 and "considerations of confidentiality." Fox, 179 F.R.D. at 305.

The purpose of the physician-patient privilege is "to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician's disclosure of information imparted to [the physician] by the patient during the course of a consultation for purposes of medical treatment." Clark v. Dist. Ct., 668 P.2d 3, 8 (Colo. 1983) (citations omitted); see also Weil v. Dillon Cos., 109 P.3d 127, 129 (Colo. 2005); Hoffman v. Brookfield Republic, Inc., 87 P.3d 858, 861 (Colo. 2004); Johnson v. Trujillo, 977 P.2d 152, 155 (Colo. 1999); Williams v. People, 687 P.2d 950, 953 (Colo. 1984); Bond v. Dist. Ct., 682 P.2d 33, 38 (Colo. 1984); People v. Deadmond, 683 P.2d 763, 769 (Colo. 1984); Cmty. Hosp. Ass'n v. Dist. Ct., 570 P.2d 243, 244 (Colo. 1977). The privilege applies only where the physician is serving as the patient's doctor. Middleton v. Beckett, 960 P.2d 1213, 1216-17 (Colo. App. 1998) (privilege inapplicable to statements made by patient to psychiatrist where psychiatrist had not undertaken any medical responsibility, subjected patient to any tests, or prescribed any medication, and no physician-patient relationship had been created); see also Martinez v. Lewis, 969 P.2d 213, 217 (Colo. 1998) (A physician performing an independent medical examination for an insurance company does not owe a duty to the insured "since no doctor-patient relationship existed . . . since she does not assert injury during the course of the examination, and since she did not rely on [the physician] for treatment, care, or advice").

The privilege is limited to information acquired while attending to the patient and necessary to enable the physician to prescribe or act for the patient. People v. Marquez, 692 P.2d 1089, 1095 (Colo. 1984); People v. Covington, 19 P.3d 15, 19 (Colo. 2001); see also People v. Palomo, 31 P.3d 879, 883 (Colo. 2001) (holding that drug screening test results and physical ability tests were not performed to enable a physician to treat a patient and, thus, were not protected by the physician-patient privilege); Belle Bonfils Mem'l Blood Ctr. v. Dist. Ct., 763 P.2d 1003, 1009 (Colo. 1988) (holding that names, addresses, and phone numbers do not fall within the privilege because such information is not necessary for the doctor to prescribe or act on behalf of the patient); Wolf v. People, 187 P.2d 926, 927 (Colo. 1947) (same); B.B. v. People, 785 P.2d 132, 140 (Colo. 1990) (holding that information obtained by a physician to assist patient in pending litigation is not for the purpose of diagnosis and, therefore, not privileged); Hartmann v. Nordin, 147 P.3d 43, 50 n. 6 (Colo. 2006) (same); Hanlon v. Woodhouse, 160 P.2d 998, 1001 (Colo. 1945) (holding that physician-patient privilege does not apply to the results of blood alcohol tests not taken for medical treatment); People v. Perez, 129 P.3d 1090, 1091-92 (Colo. App. 2005) (holding that defendant's request to physician to change records to reflect defendant's true identity was not necessary to enable the physician to prescribe or act and, therefore, was not privileged information); Anderson v. Glismann, 577 F. Supp. 1506, 1512 (D. Colo. 1984) (holding that information disclosed to court-appointed doctor is necessary for doctor to make an evaluation for the court but not to treat the patient and, therefore, is not privileged). The privilege applies to observations resulting from examination as well as to communications about those observations. People v. Marquez, 692 P.2d 1089, 1094-95 (Colo. 1984); Covington, 19 P.3d at 19.

The statutory privilege belongs to the patient and may also be exercised on behalf of the patient by his or her estate. Stauffer v. Karabin, 492 P.2d 862 (Colo. App. 1971); Clark v. Dist. Ct., 668 P.2d 3, 8 (Colo. 1983); Covington, 19 P.3d at 20, modified, 2001 Colo. LEXIS 215 (Mar. 12, 2001); Hartmann v. Nordin, 147 P.3d 43, 50 (Colo. 2006). The claimant of the privilege carries the burden of...