Professional Negligence Law Reporter

The Colorado Supreme Court held the physician-patient privilege survives a patient’s death, but the testamentary exception allows for the disclosure of privileged materials in probate proceedings.

Robert Harrison Ashworth executed a will that named his son, Brian, as his estate’s personal representative. The will divided Ashworth’s assets evenly among his four children. Years later, Ashworth executed a new will, naming one of his daughters as personal representative and excluding Brian and another child from any inheritance. After Ashworth’s death, when he was in the early stages of Alzheimer’s disease, the will was submitted for probate. Brian contested the will’s validity and sought access to medical records from the last eight years of Ashworth’s life. The personal representative refused to provide any medical records, citing the physician-patient privilege. The court ordered the personal representative to provide the medical records for an in-camera review, and the personal representative petitioned the state high court for relief.

The state high court held that the physician-patient privilege survives death. Noting that the patient is the protected party in the physician-patient relationship, the court analogized to the attorney-client privilege, which extends beyond the client’s death. The privileges are similar in operation and purpose, the court found, holding that the protections of the physician-patient privilege continue after the privilege holder has died.

The court also noted that neither the physician-patient privilege nor the attorney-client privilege is absolute. When a will is contested, withholding information would frustrate the purposes of the probate code in settling an estate. Thus, the court held that the physician-patient privilege may be pierced when a waiver of the privilege is necessary to administer an estate.

Accordingly, the court concluded that if the medical records at issue here will illuminate Ashworth’s testamentary capacity and aid the court in determining whether his last will was valid, the testamentary exception applies.

Citation: In re Estate of Ashworth, 549 P.3d 1003 (Colo. 2024).

Plaintiff counsel: Brynne Gant, Ben Lutter, and Jess McLaggan, all of Greeley, Colo.; and Sharlene Aitken, Denver.