The Colorado Supreme Court waded into a contentious dispute on Wednesday about how trial judges should decide whether a litigant’s medical records are confidential and what to do with other evidence that spawns from the private information.

Complicating matters, many details about the appeal are shielded from public view due to the debate over confidentiality. Although the Supreme Court denied the parties’ extraordinary request to hold oral arguments in secret, the written briefs contained large swaths of redactions and the lawyers carefully avoided revealing details during their appearance before the justices.

In the underlying case, Eugene Jennings was driving a truck through Custer County in July 2022 when it overturned on a curve and killed motorist Timothy Trenshaw. Trenshaw’s son then filed a wrongful death suit against Jennings and his employer. The plaintiff sought to use portions of Jennings’ post-accident medical records as evidence, but Jennings maintained they were subject to physician-patient confidentiality in their entirety.

The parties advanced competing characterizations of what happened while the case was in the trial court, but two major issues surfaced to the Supreme Court. First, was the trial judge correct to engage in a sentence-by-sentence review of the medical records to determine what was confidential and what was not? Second, because a publicly available police report seemed to incorporate Jennings’ medical records, what should happen to that document?

“I think I understand you to be arguing that if the police record took the information inappropriately from the medical record, that makes the police record tainted and the police record is out,” said Justice Richard L. Gabriel.

“That is my argument,” responded Kendra N. Beckwith, an attorney for Jennings.

Beckwith emphasized the longstanding rule is to deem treatment records confidential unless the patient waives the confidentiality. She argued patients should not have to worry that a judge will review, after the fact, the sensitive information they told their doctor and determine which statements are shielded and which can be made public.

“Do we worry that somebody could try to immunize a fact by just disclosing it to a doctor?” wondered Justice Carlos A. Samour Jr. “People could just start saying stuff they don’t want disclosed.”

“Candidly, we want people to be able to walk into the physician’s office and ‘blurt out’ whatever it is that may be responsive,” Beckwith replied.

Looming in the background, Jennings is facing criminal charges in Custer County over the fatal accident. Because he invoked his Fifth Amendment right against self-incrimination, what Jennings told a physician afterward — as reflected in the police report — took on heightened importance.

“You don’t care about the medical record. You care about those facts,” Gabriel said to the plaintiff’s lawyer. “What he described as what happened, you want. And in the normal course, you would get them. You take the deposition …. The problem here is he’s gonna plead the Fifth.”

“What I want is the non-privileged portion of the medical record that I’m entitled to,” agreed attorney J. Kyle Bachus.

The challenge with that objective, replied Chief Justice Monica M. Márquez, is how trial judges discern which details conveyed during a medical visit are connected to treatment and, therefore, confidential.

“‘What happened to you? Tell me how you got hurt?’ And lots of information might come out in that conversation,” she said. “How is a trial judge really equipped to decide which parts were necessary for the treating physician to then treat the patient?”

Both sides agreed there was seemingly no case elsewhere that unfolded with similar circumstances, and the atypical nature was partly due to the parallel criminal case. Some justices observed the discussion bled into the criminal concept of “fruit of the poisonous tree” — in which evidence obtained as a result of illegal police conduct must be excluded from trial.

“I think what you’re saying is, medical record says Fact A. Police report then says Fact A,” said Justice Maria E. Berkenkotter. “But then, if Fact B or Event C or Thing D follows because of the police report’s recitation of Fact A, I think that’s what you’re asking us to hold” as inadmissible evidence.

“If it appears in the medical record, that is protected,” reiterated Beckwith.

Bachus, the lawyer for the plaintiff, said there was no finding the police improperly obtained Jennings’ medical records. Instead, he faulted Jennings for not seeking to suppress the police report in the criminal proceedings if he was concerned about confidential information.

“This information is in a publicly available police report,” he said.

Gabriel interjected that no one had talked about a confidentiality case the Supreme Court decided last year, Jordan v. Terumo BCT. The court ruled attorney-client communications were not disclosable to the other side, but the facts of the case embedded within the documents remained fair game.

“You know it well. You won it. I know it well. I wrote it,” Gabriel quipped to Beckwith.

“I think that Jordan is quite a simple rule that is easily applied in many cases. And we would say that the medical record is privileged but the fact is not. The problem for your side in this case,” he continued, addressing Bachus, “is Mr. Jennings pled the Fifth (and declined to talk). So, I understand. If I were you, I’d be fighting to get this document in, too.”

Justice Melissa Hart did not attend the arguments due to illness. Márquez said Hart “will be participating in the decision.”

The case is Trenshaw v. Jennings et al.