In re Bailey v. Hermacinski, 413 P.3d 157

In 2014 Kelley Bailey underwent multiple surgeries and subsequent treatment at Yampa Valley Medical Center, Craig Memorial Hospital, and St. Mary’s Medical Center; Bailey later sued Yampa physicians and the hospital for medical malpractice.
During discovery the Baileys produced portions of non-party medical records (Craig and St. Mary’s treaters) but withheld portions as privileged and provided privilege logs; Defendants then sought ex parte interviews with several non-party treaters.
The trial court authorized ex parte interviews with the Craig and St. Mary’s treaters, finding those treaters were “in consultation with” Defendants and thus outside the physician–patient privilege under § 13-90-107(1)(d)(II); it also found little risk of residual privilege disclosure or undue influence.
The Baileys petitioned the Colorado Supreme Court under C.A.R. 21 to vacate the trial court’s order authorizing ex parte interviews of the non-party treaters.
The Supreme Court reviewed for abuse of discretion, held the Craig and St. Mary’s treaters were not "in consultation with" Defendants under Reutter, vacated the trial court’s order, and remanded to allow the trial court to determine whether the Baileys impliedly waived privilege.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether non-party treaters were “in consultation with” defendants under § 13‑90‑107(1)(d)(II) so communications lose physician–patient privilege	Bailey: No — non-party treaters did not collaboratively provide care with Defendants; no joint treatment, records exchange, or communication	Defendants: Yes — treaters treated conditions arising from the same alleged negligence and therefore were in a unified course of treatment with Defendants	Held: No — under Reutter the statute requires collective and collaborative assessment/treatment; here there was no collaboration or communication, so privilege stands unless waived
Whether plaintiff impliedly waived physician–patient privilege for non-party treaters by putting medical condition at issue	Bailey: Privilege remains; they did not consent to disclosure and provided privilege logs	Defendants: Plaintiff’s claims put medical condition at issue and thus waived privilege for relevant information	Held: Remanded — implied waiver is a fact-specific inquiry; trial court must determine if Baileys impliedly waived privilege and, if so, whether safeguards are needed to protect residual privilege or prevent undue influence during ex parte interviews

Reutter v. Weber, [citation="179 P.3d 977"] (Colo. 2007) (interpreting “in consultation with” in § 13‑90‑107(1)(d)(II) to require collective, collaborative, unified treatment)
Ortega v. Colorado Permanente Group, P.C., [citation="265 P.3d 444"] (Colo. 2011) (discussing application of statutory exceptions to physician–patient privilege in malpractice context)
Alcon v. Spicer, [citation="113 P.3d 735"] (Colo. 2005) (party asserting privilege bears burden; implied waiver principles)
Clark v. Dist. Court, [citation="668 P.2d 3"] (Colo. 1983) (consent and waiver of physician–patient privilege)
Samms v. Dist. Court, [citation="908 P.2d 520"] (Colo. 1995) (implied waiver constitutes consent for purposes of § 13‑90‑107(1)(d))
Cardenas v. Jerath, [citation="180 P.3d 415"] (Colo. 2008) (standard of review for discovery rulings)