Can defense counsel in a Colorado personal injury or malpractice case talk ex parte with the plaintiff's treating physician once the plaintiff has put a medical condition in issue?

Plain-English summary

Opinion 71 (revision adopted September 21, 1985; addendum issued April 18, 1992) addressed whether counsel for a defendant in a personal injury or medical malpractice case may discuss the plaintiff's care and treatment ex parte with the plaintiff's treating physician or psychologist. The Committee began from Colorado law: a physician or psychologist may not be examined without the patient's consent as to information acquired in treatment (C.R.S. section 13-90-107(1)(d), (g)), and a plaintiff who pleads a physical or mental condition as the basis of a claim impliedly waives the privilege as to that same condition (Clark v. District Court).

The Committee concluded that the implied waiver does not let defense counsel hold ex parte discussions with the plaintiff's treating doctors without first giving plaintiff's counsel reasonable notice and an opportunity to be present. Such unsupervised discussions risk disclosure of information that remains privileged (conditions unrelated to the lawsuit, or sensitive information not necessary to the treatment at issue), which would violate Colorado law and could expose the physician to liability to the patient. The treating doctor, unschooled in law and unfamiliar with the issues framed by the lawsuit, cannot reliably decide what falls within the waiver, and defense counsel cannot make that call either, owing undivided loyalty to the defendant and lacking knowledge of the privileged content; the plaintiff's counsel must therefore be informed and given the right to object so a court can resolve disputed questions of privilege. The Committee noted that a Colorado court cannot order ex parte interviews with treating doctors but can order production of medical records, balancing the equally compelling interests in confidentiality and full discovery (Bond v. District Court; Fields v. McNamara).

Grounding the ethical duty, the Committee relied on DR 1-102(A)(5) (no conduct prejudicial to the administration of justice), DR 7-101(A)(1) and DR 7-102(A)(8), and Ethical Considerations 7-10 and 7-39 (courtesy and acceding to reasonable procedural requests that do not prejudice the client). It concluded that treating physicians or psychologists should not be consulted ex parte about the plaintiff's care, treatment, or resulting opinions without first giving plaintiff's counsel reasonable notice and an opportunity to be present, with formal discovery available if the lawyers disagree. The 1992 addendum extended these principles to workers' compensation actions.

Currency note

This opinion was issued in 1985 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. The Code's DR 1-102(A)(5) corresponds to current Rule 8.4(d) (conduct prejudicial to the administration of justice), and the duty to respect third persons' rights is reflected in Rule 4.4. The privilege statute and the case law on ex parte contact with treating physicians may also have changed. Treat this page as historical context, not current guidance. Verify against current rules and law before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did a personal injury plaintiff's waiver let the defense interview the treating doctor freely?

A: No. The opinion concluded that even though pleading a condition impliedly waives the privilege for that condition, defense counsel may not hold ex parte discussions with the plaintiff's treating physician without first giving plaintiff's counsel reasonable notice and an opportunity to be present.

Q: Why did the plaintiff's lawyer have to be given notice?

A: To protect still-privileged information. The opinion concluded the treating doctor could not reliably separate waived from privileged matters, defense counsel could not make that call given its loyalty to the defendant, and so the plaintiff's counsel had to be able to object and let a court decide.

Q: What could the defense do if the lawyers disagreed?

A: Use formal discovery. The opinion concluded that in the event of a dispute between plaintiff's and defendant's counsel, recourse to the formal discovery process remained an option, and noted a court could order production of medical records even though it could not order ex parte interviews.

Q: Did this apply to workers' compensation cases?

A: Yes. The 1992 addendum stated that the opinion's principles and conclusions apply equally to workers' compensation actions as to personal injury and medical malpractice actions.

Background and rules framework

The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 7-101(A)(1), and DR 7-102(A)(8), with EC 7-10 and 7-39, against the backdrop of Colorado's physician-patient and psychologist-client privilege statutes (C.R.S. section 13-90-107(1)(d), (g)) and the Clark, Bond, and Fields line of cases. The modern Model Rules analogs are Rule 8.4(d) (conduct prejudicial to the administration of justice) and Rule 4.4 (respect for the rights of third persons).

Citations and references

Rules of Professional Conduct:

• Colo. Code of Professional Responsibility DR 1-102(A)(5), DR 7-101(A)(1), DR 7-102(A)(8); EC 7-10, 7-39 (governing rules at issuance)
• Colo. RPC 8.4(d) / Model Rule 8.4 (conduct prejudicial to the administration of justice; current analog)
• Colo. RPC 4.4 / Model Rule 4.4 (respect for rights of third persons)

Statutes:

• C.R.S. section 13-90-107(1)(d), (g) (physician-patient and psychologist-client privilege)

Cases:

• Clark v. District Court, 688 P.2d 3 (Colo. 1983), implied waiver of privilege for the condition put in issue
• Bond v. District Court, 682 P.2d 33 (Colo. 1984), balancing confidentiality against discovery; heightened psychotherapist privilege
• Fields v. McNamara, 540 P.2d 327 (Colo. 1975), court may order records but not ex parte interviews
• Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio 1965), waiver does not release the doctor's duty of secrecy

See also

• ABA Formal Op. 93-378: Ex Parte Contacts With Expert Witnesses
• CBA Formal Op. 73: Contacting an Insurance Adjuster
• AlaBar Op. 1988-34: Contacting an Employee of an Opposing Party Without Notice

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_71_2011.pdf