When you visit with a physician for a medical concern — or even an annual checkup — you expect for the records from your visit to remain confidential — and luckily they do. This is known as the patient-physician privilege. The purpose of this privilege is “to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused” through disclosure of that information. But can the patient-physician privilege ever be waived? Yes.

Waiving a Patient-Physician Privilege

When a patient-physician privilege exists, it can in fact be either expressly or impliedly waived. The privilege is expressly waived when a patient signs a release allowing for the medical provider to disclose the patient’s medical records or information. But how can this privilege be impliedly waived? 

When an individual brings a lawsuit for injuries due to someone else’s negligence, the claims involved can serve as a limited release of certain medical records – specifically, any records pertaining to “the cause and extent of the injuries which form the basis for a claim for relief.” This means that each case is evaluated individually and what is included in that implied limited release is dependent upon the specific facts and circumstances. This scope of the plaintiff’s implied waiver was an issue the Colorado Supreme Court ruled on many years ago in, Weil v. Dillon Companies.

Weil v. Dillon Companies – Fact and Claims

In Weil the plaintiff, Dr. Weil, slipped and fell in a grocery store, suffering several injuries including a fractured pelvis, a fractured sacrum, and a torn rotator cuff in his left shoulder. Weil sued Dillon Companies, the owner of the grocery store, both to recover his medical expenses associated with these injuries and to obtain non-economic damages for “pain and suffering, inconvenience, impairment of quality of life, inability to engage in his normal activities, permanent physical impairment, and past and future economic losses.”

What did Dillon Companies want Weil to Disclose?

In interrogatories, Dillon Companies asked Weil about the specifics of his injuries as well as any prior injuries and hospitalizations. In his responses, Weil indicated that he suffered anxiety over a misdiagnosis from one of his injuries and that he had developed a fear of falling. Dillon Companies also asked Weil to execute blanket releases for medical records from multiple healthcare providers that Weil had not already disclosed to Dillon Companies. This would include psychiatric consultation reports, angiograms, physicals, and pathology reports as well as other reports and documents for treatments including those received years earlier. Essentially, Dillon Companies wanted Weil to disclose all of his medical and mental health records — because Weil indicated that his injuries caused him anxiety and that he had developed a fear of falling.

Dillon Companies filed a motion with the trial court to compel Weil to authorize full releases of all of his medical records. 

What the Trial Court Ruled

The trial court issued an initial order stating that it would not allow Weil’s claim for damages where “the defendant was denied record access by the failure of plaintiff to execute appropriate waivers.” The trial court subsequently ordered Weil to issue “appropriate releases” of his medical records so that Dillon Companies could gain insight into the quality of Weil’s life prior to the injuries in question, otherwise the court would limit non-economic damages to what “an ordinary person would likely experience in similar circumstances.”

Weil would therefore be obligated to choose between signing the releases that disclosed medical records that he believed were beyond the scope of the issues in his case, or being limited in the potential amount of damages he could recover. 

The Colorado Supreme Court’s Decision

The Colorado Supreme Court decided that Weil’s anxiety and fear of falling only expressed the nature of his injuries and that those statements, along with his claim to be compensated for pain and suffering, did not result in a wholesale waiver of the patient-physician privilege. Weil was not seeking compensation for counseling or treatment of a psychological nature. Nor was there any evidence that he intended to call an expert witness to testify to his mental suffering or loss of enjoyment of life. 

The Burden of Establishing Waiver

The Colorado Supreme Court went on to say that the party seeking to overcome the confidentiality of the patient-physician privilege is the one who has the burden of establishing that a waiver occurred. The Colorado Supreme Court ruled that the trial court was wrong to limit Weil’s claim for damages unless he signed releases allowing Dillon Companies to have unrestricted access to his medical records and the Court created a process by which trial courts determine the extent of a plaintiff’s limited waiver of the patient-physician privilege and what medical information a plaintiff has to disclose in a case. 

Mintz Law Firm Helps Those in Colorado Who Have Been Injured Due to the Negligence of Another

One of the most common issues that occurs before someone retains counsel is that they have been asked to sign, or they have already signed, releases for medical records to be disclosed to the other party’s insurance company, when they may not have any obligation to sign those releases. Typically, those releases allow the other party’s insurance company to get any and all information about the plaintiff, and the releases are not always just limited to medical information. If you or a loved one has been asked or told to sign releases for medical information by an insurance company, it is always in your best interest to consult with an experienced personal injury attorney before doing so. 
At Mintz Law Firm, we know what is at stake. We work with our clients, striving to achieve the best possible outcome for each situation and protecting their best interests. To learn more or to schedule a free consultation, fill out a contact form or call us at 303-462-2999 today!