Law enforcement in Arapahoe County improperly obtained a criminal defendant’s confidential medical records and cannot use them in her child abuse prosecution, the Colorado Supreme Court ruled on Monday.

The justices also declined to say whether the body-worn camera footage of a police officer who was present during the defendant’s treatment was similarly protected by the physician-patient confidentiality principle. Instead, the court directed the trial judge to analyze the issue further.

Justice Richard L. Gabriel, writing in the Jan. 12 majority opinion, noted that court-approved requests for records exclude those materials protected by physician-patient confidentiality. However, lawmakers have created an exception for child abuse prosecutions.

That exception applies to “testimony,” which, the majority concluded, does not encompass documents.

“In our view, this language is plain and unambiguous, and we must therefore apply it as written,” wrote Gabriel in upholding the underlying order requiring the prosecution to surrender the defendant’s medical records.

Justice Carlos A. Samour Jr. dissented, arguing the majority was “overtechnically construing” testimony to mean witness statements or declarations. While he acknowledged the circumstances of Amanda Ann Soron’s case were an “outlier,” Samour believed the majority’s decision would hamper prosecutions of future child abuse cases if the government cannot access medical records when making charging decisions.

“No one believes that this is what the legislature intended. It isn’t,” he wrote.

In November 2022, an officer encountered Soron at a Lowe’s store in Greenwood Village after responding to a report of a person potentially in distress. Soron, who was homeless, half-naked, and covered in blood, allegedly said she had just given birth. She revealed the dead baby under a tarp.

More law enforcement arrived, and Officer Diego Moreno rode in an ambulance with Soron to a hospital. She was not under arrest, but Moreno sat in on the medical procedure to deliver Soron’s placenta. He recorded it on his body-worn camera and began collecting evidence at the hospital. The county coroner concluded “acute methamphetamine toxicity,” “environmental cold exposure,” and “unattended birth” were factors in the death of Soron’s baby.

Prosecutors charged Soron with child abuse resulting in death. Shortly afterward, a detective sought a court order under the law compelling the production of business records related to a crime. Among other things, he sought the “entire medical record” for Soron and her baby. A magistrate signed off on the order.

The defense sought to block the prosecution from accessing Soron’s medical records, citing her constitutional rights, federal privacy law and physician-patient confidentiality.

District Court Judge Natalie Stricklin sided with the defense, ordering the prosecution to surrender Soron’s medical file. She also blocked the use of Moreno’s body camera footage.

The district attorney’s office appealed directly to the Supreme Court, arguing the evidence was crucial to proving how the baby died.

“Jurors in this case will need to decide whether the child’s death was caused by Soron’s use of methamphetamine prior to the child’s birth or instead was caused by Soron’s failure to provide care after the child was born,” wrote Senior Deputy District Attorney L. Andrew Cooper. “And while the district court seems to have been dismayed by the police presence in the hospital, it is commonplace for officers to enter hospitals.”

Soron “had an expectation of privacy in her medical care and records, which the Government violated here, and is now attempting to criminalize Ms. Soron’s unfortunate loss of her baby with its proof being the medical records it got illegally and without statutory justification,” responded public defender Gracen W. Short.

The Supreme Court’s majority concluded that Colorado law did permit Soron’s physicians to testify in the child abuse case, but it did not allow the production of documents without Soron herself relinquishing her physician-patient confidentiality.

As for Moreno’s recording from the hospital, Gabriel wrote that the legislature can narrow the scope of physician-patient confidentiality when there is an “overriding public policy need.” Because lawmakers have enacted requirements for officers to wear cameras, the court returned the case to Stricklin for her to evaluate the public policy considerations at play.

Samour disagreed that the child abuse exception rendered Soron’s medical records off-limits because they were not “testimony.” He wondered how prosecutors will be able to make decisions prior to hearing the permitted testimony of physicians at the trial.

“I am very concerned that today’s opinion will inadvertently throw a monkey wrench into the prosecution of a large swath of child abuse cases,” he wrote.

In a statement, the Colorado District Attorneys’ Council agreed with Samour’s analysis, and also indicated the ruling would make it difficult to call physicians as witnesses if the prosecution cannot access and disclose the underlying documentation.

“A legislative fix may be in order,” the statement read.

The Colorado Criminal Defense Bar did not immediately provide a comment in response.

The case is People v. Soron.