Colorado Supreme Court Reaffirms Strong Physician-Patient Privilege in Gardne v. Jennings

Overview

In a significant opinion for Colorado injury litigators, the Colorado Supreme Court in Gardne v. Jennings, 2025 CO 23, reinforced the strength of the physician-patient privilege under C.R.S. § 13-90-107(1)(d). The Court held that statements made to a physician during treatment remain privileged, even if they include factual accounts of how an injury occurred. Trial courts may not parse medical records line-by-line to determine privilege applicability.

Case Background

Eugene Jennings was driving a commercial truck when he flipped it on a Custer County highway, killing the other driver, Timothy Trenshaw. After the crash, Jennings was treated at a hospital and described how the accident happened—statements documented by his emergency department physician.

Law enforcement allegedly obtained Jennings’s medical records without a warrant or consent, then shared them with the district attorney. The DA’s office later disclosed a police report containing screenshots of the records to plaintiffs in a wrongful death lawsuit. Plaintiffs sought to use five specific sentences from those records that detailed Jennings’s version of the collision.

The district court reviewed those five sentences in camera and ruled they were not privileged, finding the statements unnecessary for medical treatment. Jennings challenged the ruling, invoking original jurisdiction under C.A.R. 21.

Supreme Court Holding: The Entire Record Is Privileged

The Colorado Supreme Court reversed the district court. It ruled that the entire medical record generated during treatment was protected by the physician-patient privilege. The Court rejected the trial court’s “sentence-by-sentence” approach as legally unsupported and practically unworkable.

Notably, the Court found that if a patient communicates with a physician in the course of receiving treatment, the entire communication is privileged—even if it includes facts about the incident. Courts cannot dissect medical records after the fact to determine what information was "necessary" for treatment. Instead, the proper method for discovering facts is through direct discovery (e.g., interrogatories or deposition), not through medical records.

Practice Tips for Colorado Attorneys

1. The Physician-Patient Privilege Is Broad and Protects Entire Treatment Communications
Statements made during medical treatment are protected. Opposing parties cannot extract factual portions for litigation use.

2. Facts Are Discoverable—but not necessarily via communications made as reflected in Medical Records

3. Unauthorized Sharing Doesn’t Waive Privilege
Even if police or prosecutors wrongfully share medical records, that does not entitle civil litigants to use them.

4. Privilege Logs Matter—but Substance Controls
Courts will look at substance and prejudice, not just procedural errors. A timely, clear assertion of privilege may suffice.

Why This Matters

Gardne v. Jennings sends a strong signal that courts will not allow privilege to be eroded through piecemeal analysis or procedural backdoors. Both civil and criminal practitioners should reevaluate how they seek or protect medical records in litigation.