Chapter 6 - § 6.5 • TREATING PHYSICIANS

• Jurisdiction: Colorado

§ 6.5 • TREATING PHYSICIANS

The general ethics rules relating to ex parte communications with witnesses require special consideration in the context of workers' compensation, personal injury, and medical malpractice actions where the interests of patient privileges and the need for defendant's counsel to zealously represent his or her client must be balanced. CBA Formal Ethics Opinion 71, adopted in 1985 with an addendum issued in 1992, provides guidance for lawyers representing a defendant in a lawsuit who wish to engage in ex parte discussions with treating physicians.

Physicians are unlike other prospective witnesses in a case because Colorado law protects confidential information shared between patient-physician and patient-psychologist. C.R.S. § 13-90-107(1)(d) (patient-physician privilege) and C.R.S. § 13-90-107(1)(g) (patient-psychologist privilege). However, a plaintiff in a workers' compensation, personal injury, or medical malpractice action "impliedly waives any claim of confidentiality respecting that same condition" by pleading a physical or mental condition as the basis of a claim. Clark v. Dist. Ct., 668 P.2d 3, 10 (Colo. 1983). The same standard does not apply if the physical or mental condition of the defendant is put at issue by the plaintiff and the defendant merely disputes those allegations. See Gadeco, LLC. v. Grynberg, 415 P.3d 323, 330-31 (Colo. 2018) (citing Clark v. Dist. Ct., 668 P.2d 3, 10 (Colo. 1983)).

The plaintiff's waiver of the patient-physician or patient-psychologist privilege for information "respecting the same condition" is not absolute. Defense counsel must first provide plaintiff's counsel with reasonable notice and an opportunity to be present before engaging in ex parte communications with...