Tag Archives: Privilege

In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)

Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA209.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9408&courtid=2

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Filed under Administrative, Government, Interlocutory Review

Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

The government wants Plaintiff’s patient data. Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. Plaintiff claimed patient data was protected by CRS 13-90-107(1)(g), creating the psychotherapist-patient privilege, and 42 U.S.C. § 290dd-2, Federal Confidentiality Statutes (FCS). On review, the court of appeals agreed with the trial court, holding the data could be disclosed. First, CRS 13-90-107 is limited to the litigation context and did not apply. Second, under the FCS, patient data is disclosable to an agency with “direct administrative control,” which the state was not, or under an “audit and evaluation” exception, which did apply. Thus, the data could be required to be disclosed once the state, but only once the state implements a required data retention and destruction policy.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Filed under Administrative, Evidence, Government

Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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In Re Emily Liebnow v. Boston Enterprises Inc. d/b/a Giacomo’s, U.S. Foodservice, Tanimura & Antle Fresh Foods, Inc. et. al.

“The closed mouth catches no flies” – B. Franklin. This case involves the disqualification of an entire firm based on an unwaivable conflict of interest. Defense counsel had a friendly relationship with an out-of-state plaintiff’s Firm specializing in e-coli cases and consulted with a lawyer at the Firm about an e-coli case. Defense counsel followed some of his advice. In the same case, Plaintiff hired a different lawyer from the same Firm. The trial court denied pro hac vice admission, effectively disqualifying the Firm. The Court upheld the trial court’s ruling that under the Rules of Professional Conduct (RPC) an unwaivable conflict was created under RPC 1.7, and that RPC 1.10 imputed that conflict to the entire firm. The Court also held that RPC 1.7 conflicts apply to third parties, and here the conflict was unwaivable becase it undermined the fairness of the proceedings.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA83.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8823&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation, Personal Injury, Torts

L.A.N., a/k/a L.A.C., by and through her Guardian ad Litem; and The People in the Interest of Minor Child L.A.N., a/k/a L.A.C., v. L.M.B., 2013CO6 (January 22, 2013)

How does a minor-child shield his or her secrets, told to a psychotherapist, during a dependency and neglect proceeding? Normally, parents “hold” the child’s psychotherapist-patient privilege, and the right to waive that privilege on behalf of their children. But in a termination proceeding, parents have a conflict of interest. Three others could hold the child’s privilege: the department of human services, the juvenile court, or the guardian ad litem (GAL). The Court’s answer, under CRS sections 13-90-107 and 19-3-311, is the GAL. If waived, the court determines the scope, balancing various factors, seven of which were identified by the Court. The process for a GAL to withhold information is familiar: the GAL serves a privilege log, and then, if necessary, the court conducts an in camera review. The Court remanded this case for a determination of the scope of a GAL’s waiver.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC529.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8808&courtid=2

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Filed under Evidence, Family Law, Government