In a decision that will have far reaching effects on medical malpractice litigation in Colorado, the state's Supreme Court has ruled that a patient who files a lawsuit for malpractice may not withhold from discovery their electronic medical records, even if those records are completely unrelated to the subject of the lawsuit.  This decision is inconsistent with 30 years of Colorado case law on discovery of medical records, and will almost certainly result in significant embarrassment and emotional distress for many patients who file malpractice lawsuits.

The case at issue, Ortega v. Colorado Permanent Medical Group, involved a lawsuit by Ernest Ortega against his physician, Kaiser Foundation Health Plan, and the physician's group, Colorado Permanente, which is an affiliate of Kaiser.  Mr. Ortega had been insured by Kaiser for over 20 years.  Mr. Ortega underwent a treadmill stress test at a Kaiser facility.  Shortly after the test, Mr. Ortega suffered a heart attack in the facility's parking lot.  He sued the doctor, Kaiser and the doctor's group for malpractice.

Since the late 1990's, Kaiser has maintained integrated electronic medical records which permit its physicians to access all of a patient's medical records.  Mr. Ortega claimed that many of the medical records contained in Kaiser's electronic system were entirely unrelated to his claim of malpractice based on the cardiac treatmill stress test, and, therefore, his attorneys filed a motion for protective order to prevent the defendants from accessing the records in the course of litigation.  Mr. Ortega claimed that the statutory physician-patient privilege prevented disclosure of the unrelated records.  The trial judge ruled against Mr. Ortega, and ordered that the records were discoverable.  Mr. Ortega brought a Rule 21 proceeding in the Supreme Court, claiming that the trial judge exceeded his jurisdiction or abused his discretion in ordering that the records were discoverable.

The Supreme Court, in a 5-1 decision (Justice Martinez's seat on the court is vacant due to his recent resignation and Chief Justice Bender dissented), held that the physician-patient privilege did not apply to Ortega's electronic medical records.  The court relied on C.R.S. 13-90-107(1)(d)(I), which states that the privilege "shall not apply to . . . a physician . . . who is sued by or on behalf of a patient . . . on any cause of action arising out of or connected with the physician's . . . care or treatment of such patient." 

The court's decision is inconsistent with decades of Colorado law that had concluded that a patient, by filing suit, impliedly waived the physician-patient privilege but only with respect to medical records that were related to the condition that formed the basis for the lawsuit, or for records that were related to the treatment that gave rise to the lawsuit.  No Colorado case until now has ever held that a patient waives his or her privilege as to all medical care and treatment for any condition whatever by filing a lawsuit. 

As a practical matter, the decision would allow a physician sued for malpractice arising out a failure to diagnose a heart attack to discovery completely unrelated and irrelevant information about a patient's gynecological history, mental health conditions, and substance abuse problems, even if those issues had arisen many years earlier and had no connection whatsoever to the malpractice lawsuit.

The Ortega decision may be mitigated somewhat by the fact that Kaiser has been using integrated electronic medical records for over a decade.  In many, if not most, cases, the patient's medical records, even if kept in electronic format, are not integrated in such a way that all physicians can access the records at any time.  However, some hospitals do now permit their staff physicians to access electronic medical records.  So, it looks like this case is going to result in a lot of serious litigation over the next several years.

Nothing makes a physician's attorney with no real defense to a malpractice claim happier than to find out that the plaintiff has something in his medical records that he doesn't want revealed.  That is why they try so hard to obtain a patient's medical records.  This case may make their job easier.