Opinion
Civil Action No. 99-D-102.
October 17, 2000.
DISCOVERY ORDER
This is an insurance bad faith case. Plaintiff law firm alleges that defendant failed to pay the firm benefits when one of the firm's partners became disabled. Defendant contends that it has no obligation to pay benefits because the partner made incorrect statements on his application for insurance.
The matters before the court are Plaintiff's Motion to Reconsider . . . and Motion to Quash Subpoena . . . [filed May 5, 2000]; defendant's Stipulated Motion to Extend Deadlines . . . [filed June 5, 2000]; defendant's Motion to Compel Hinga's Notes [filed June 30, 2000]; defendant's Motion to Compel Notes of Weckbaugh and Hinga [filed July 19, 2000] and defendant's Motion to Compel Witness to Answer Deposition Questions [filed July 25, 2000]. At the request of counsel, a hearing on the motions was held on September 27, 2000. This order summarizes the Court's rulings at that hearing.
The primary issues in all of the motions are whether a mental health provider's office notes and a patient's notes to his mental health provider are discoverable. Plaintiff contends that the notes are not discoverable because of the privilege set forth in § 25-1-802, COLO. REV. STAT. (2000), which cannot be waived. Defendant responds that the plaintiff law firm has no standing to raise the privilege, and even if it did, any privilege has been waived because plaintiff put Mr. Hinga's mental status at issue in this case. Defendant also argues that the notes are discoverable because the defendant needs to prepare its defense that the law partner misrepresented facts on his application for disability benefits. Defendant finally contends that any notes from Mr. Hinga to his therapists are not privileged in any respect.
The parties do not dispute that Colorado law applies in this diversity action. There is also no dispute that Mr. James Hinga is the allegedly disabled partner and that he has completed treatment with the providers at issue in the motions. The mental health providers have produced summaries of their records. Defendant seeks the production of all patient records including office notes from Mr. Hinga's alcoholism treatment and other mental health care providers, and Mr. Hinga's notes to his therapists, as well as an order requiring Dr. Gendel to be deposed about his office notes, which were provided.
The Court notes that Mr. Hinga was aware that the law firm had filed the lawsuit and did not object to its filing. See Def. Resp to Pl. Motion to Reconsider . . . Ex. A, Hinga deposition, at 14-15. Mr. Hinga also "probably" does not have any objection to the law firm's attempting to prove his disability, id. at 17, or putting his mental condition at issue to prove his disability. id. at 18. Mr. Hinga further signed an authorization to release records to the defendant's predecessor. id., Ex. E.
Section 25-1-802, COLO. REV. STAT. (2000), states, in relevant part, with respect to records in the custody of individual health care providers: ". . . (1)(a)[e]very patient record in the custody of a . . . person practicing psychotherapy . . . except records pertaining to mental health problems, shall be available to the patient upon submission of a written authorization . . . A summary of records pertaining to a patient's mental health problems, may, upon written request and signed and dated authorization, be made available to the patient or the patient's designated representative following termination of the treatment program . . . (3) [for purposes of this section, "patient record" does not include a doctor's office notes."
Mr. Hinga is entitled to privacy in his medical and psychiatric records under § 13-90-107, COLO. REV. STAT. (2000). The issue is whether he has waived that privilege. Waiver is established by a showing that the privilege holder has expressly or impliedly "forsaken" his claim of confidentiality with respect to the information in question. Mauro v. Tracy, 380 P.2d 570 (Colo. 1963).
As stated in more detail on the record at the hearing on September 27, 2000, the Court finds that the plaintiff has put Mr. Hinga's mental condition at issue in this case, with Mr. Hinga's knowledge and without any objection from him. Whether Mr. Hinga was or continues to be disabled due to alcoholism and depression is a material fact in this case. Plaintiff, with Hinga's permission, has thus injected Mr. Hinga's mental condition into the case as the basis of a claim. See Clark v. District Court, 668 P.2d (Colo. 1983). Mr. Hinga further signed an authorization to release his medical records to defendant when he made an application for benefits from the defendant's predecessor. See Def. Response to Motion for Reconsideration . . ., Ex. E. Mr. Hinga thus waived any privilege as to his treatment records.
Mr. Hinga initially sought protective orders from the Court concerning the subject records, which the court denied. See Minutes of May 1, 2000. Again applying the balancing test set forth in Bond v. District Court, 682 P.2d 33 (Colo. 1984), the Court again finds, upon reconsideration, that even if he had not waived the privilege in his treatment and mental health records by signing authorization forms and failing to object to the law firm's placing his mental condition at issue, Mr. Hinga cannot rely upon § 25-1-802, COLO. REV. STAT. (2000) for any privilege.
Plaintiff law firm argues that the intent of § 25-1-802, COLO. REV. STAT., is to provide an unwaivable privilege in mental health treatment records. The Court disagrees, finding that the intent of the statute appears to be to protect a psychiatric patient from obtaining his own records. See Brown v. Jensen, 572 F. Supp. 193 (D. Colo. 1983). it is helpful to read § 25-1-802 with § 25-1-801 regarding patient records in the custody of a health care facility. § 25-1-801(1)(a) expressly states that mental health records are available to a mental health patient except when their production ". . . would have significant negative psychological impact upon the patient." The logical conclusion is to read both statutes together so that patient records may be released to a patient unless their release would have a significant negative psychological impact upon the patient.
Mr. Hinga has made no such showing here. Indeed, an affidavit from a mental health therapist, opining that the patient would suffer harm if the records are released is just one factor in the balancing test a court must perform when considering privacy rights in the context of a lawsuit when the condition addressed in medical records is a material issue. Indeed, in Bond, the therapist opined that the release of the subject records would cause "serious and irreparable harm" to the patients. 682 P.2d at 39. The Bond court nonetheless found that any privacy interest or potential harm to the patient was outweighed by the defendant's need to obtain sufficient evidence to contest the damage clams for mental suffering and emotional distress. Here too, Mr. Hinga's privacy interests in his mental health records are outweighed by the defendant's need to assess the law firm's claim that Mr. Hinga was disabled and the law firm thus entitled to benefits. Mr. Hinga has not submitted any affidavit from a treatment therapist verifying that release of the records would cause Mr. Hinga irreparable harm. Further, the Court has determined that a narrowly drawn protective order will protect Mr. Hinga's rights.
As to the production of Mr. Hinga's notes to his treatment providers, Mr. Hinga has claimed that they are privileged. Neither Mr. Hinga nor the plaintiff law firm has provided the Court, however, with any authority to support that argument, or with the notes themselves. The Court disagrees, finding that, in the absence of any evidence to show that the notes were "any information acquired in attending the patient which was necessary to enable [the physician] to prescribe or act for the patient" within the meaning of § 13-90-107(1)(d), COLO. REV. STAT. (2000), no privilege attaches to notes from a patient to his mental health therapist.
Accordingly, and as stated in open court on September 27, 2000, the court ordered as follows:
ORDERED: Plaintiff's Motion for Reconsideration, docket entry number 54 filed on May 5, 2000 was GRANTED in that a hearing was held and the previous order reconsidered. The Motion for Reconsideration is otherwise denied. Plaintiff's Motion to Quash subpoena, filed the same date is also DENIED.
ORDERED: Defendant's Motion to Compel Notes of Weckbaugh and Hinga, docket entry number 75 filed on July 19, 2000 is GRANTED. It is further
ORDERED: Defendant's Motion to Compel Hinga's Notes, docket entry number 70 filed on June 30, 2000 is GRANTED. It is further ORDERED: Defendant's Motion to Compel Witness to Answer Deposition Questions, docket entry 78 filed on July 25, 2000 is GRANTED. It is further ORDERED: A Protective orders shall be drafted by the parties which specifically addresses Mr. Hinga's privacy interests. If there is any problem with agreeing upon such an Order, counsel shall bring the matter to the attention of the Court. ORDERED: Defendant's Motion to Extend Deadlines, docket entry number 63 filed on June 5, 2000 is GRANTED. The Scheduling Order is Amended as follows: The discovery cutoff is November 30, 2000; the Dispositive Motions deadline is December 8, 2000; Responses to dispositive motions are due December 29, 2000; Replies, if any, to dispositive motions are due January 8, 2000. The Pretrial Conference is vacated and reset to January 30, 2001 at 9:30 a.m. The Proposed pretrial order is due January 24, 2000