Communications in Treatment Records Are Categorically Privileged: Colorado Supreme Court Bars Sentence-by-Sentence Parsing of Medical Records

Introduction

In Trenshaw v. Jennings, 2025 CO 23, 568 P.3d 413, the Colorado Supreme Court unanimously resolved a recurring discovery flashpoint at the intersection of medical confidentiality and civil litigation. The case arose from a fatal collision on Colorado Highway 69 involving a commercial tractor-trailer driven by defendant Eugene Jennings and a vehicle driven by decedent Timothy Trenshaw. Following the collision, Jennings was transported to a hospital emergency department, where, during medical treatment, he described how he was injured and how the crash occurred. The treating emergency physician documented those statements in Jennings’s medical records.

In the ensuing wrongful death suit filed by Trenshaw’s estate and son, plaintiffs obtained a police report that reproduced a screenshot of a portion of Jennings’s medical records containing five sentences summarizing his description of the crash. The district court conducted an in camera review and, undertaking a sentence-by-sentence assessment, ruled that those five sentences were not privileged because they were “not necessary for the medical team to act or prescribe” for Jennings. It dissolved a previously issued protective order and compelled disclosure of the five sentences.

Exercising original jurisdiction under C.A.R. 21 due to the risk of irreparable harm from disclosure of privileged information, the Colorado Supreme Court made its rule to show cause absolute. The Court held that communications recorded in medical records that a patient provides to a treating physician during the course of treatment for an injury are protected by the physician–patient privilege under section 13-90-107(1)(d), C.R.S. (2024). The Court rejected the trial court’s slice-by-slice necessity review as both inconsistent with precedent and impracticable. It clarified that while the underlying facts are discoverable through traditional means (interrogatories, requests for admission, depositions), the medical records themselves—and the communications they contain—remain privileged.

Key Holdings at a Glance

Bright-line rule: Medical records containing information a patient provides to a treating physician during treatment for an injury are protected by the physician–patient privilege.
No sentence-by-sentence parsing: Courts should not dissect medical records to determine, in hindsight, which individual statements were “necessary” to treatment.
Facts vs. communications: The underlying facts about an incident are discoverable from the party, but the patient’s confidential communications to the treating physician, as recorded in medical records, are not.
In camera review is itself a disclosure: Courts should avoid in camera review of privileged medical records absent compliance with C.R.C.P. 26(b)(5) and exhaustion of alternatives.
No waiver based on privilege-log defect in these circumstances: Failure to provide a privilege log did not effect a waiver where the privilege was promptly asserted, no prejudice was shown, and time was of the essence.
Police report screenshots do not defeat privilege: Plaintiffs cannot use screenshots of privileged medical records embedded in a police report to circumvent the privilege.

Summary of the Opinion

Justice Samour, writing for a unanimous Court, reversed the district court’s order requiring disclosure of five sentences from Jennings’s emergency department records. The Court held that section 13-90-107(1)(d) protects patient–physician communications acquired during treatment that enable the physician to “prescribe or act” for the patient. That protection applies fully in discovery and extends to medical records themselves.

The district court erred by:

Conducting an in camera review and a granular, sentence-by-sentence necessity analysis of the records; and
Concluding that the patient’s description of how the collision occurred was not privileged because it was not “necessary” to treatment.

Emphasizing feasibility, predictability, and fidelity to the privilege’s purposes, the Court announced a bright-line rule: if information appears in medical records because the patient communicated it to a treating physician during treatment of an injury, the records are privileged. The Court clarified that plaintiffs remain free to discover relevant facts about the crash directly from Jennings through civil discovery, but not by accessing his privileged medical records. The Court further rejected plaintiffs’ waiver argument premised on the absence of a formal privilege log, and it held that plaintiffs could not rely on a police report screenshot of the records to evade the privilege.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning is grounded in long-standing statutory and case law principles governing the physician–patient privilege:

Section 13-90-107(1)(d), C.R.S. (2024): Codifies the privilege, barring examination of a physician “without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient.”
Cardenas v. Jerath, 180 P.3d 415 (Colo. 2008) and Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo. 2004): Confirm the privilege applies not only to trial testimony but also to pretrial discovery, including medical records.
Hartmann v. Nordin, 147 P.3d 43 (Colo. 2006); Clark v. District Court, 668 P.2d 3 (Colo. 1983); Weil v. Dillon Cos., 109 P.3d 127 (Colo. 2005); Alcon v. Spicer, 113 P.3d 735 (Colo. 2005): Articulate the privilege’s purposes—encouraging candid disclosure to ensure effective diagnosis and treatment and protecting the patient from embarrassment and humiliation.
People v. Covington, 19 P.3d 15 (Colo. 2001): Pivotal. The Court held that photographs of a patient’s gunshot wounds taken in the emergency room by a physician assistant, though requested by law enforcement, memorialized observations made during treatment and were therefore privileged. That principle controls here: emergency room notes reflecting the patient’s account of how he was injured are part of the treatment interaction and privileged.
Limits on the privilege: Wolf v. People, 187 P.2d 926 (Colo. 1947) (purely identifying information like name, address, phone not privileged); B.B. v. People, 785 P.2d 132 (Colo. 1990) (psychologist consulted solely to assist litigation; privilege does not apply); Hanlon v. Woodhouse, 160 P.2d 998 (Colo. 1945) (testimony about blood draw at law enforcement’s request; not privileged). The Court distinguishes these cases as involving information not acquired for treatment.
Cook v. People, 153 P. 214 (Colo. 1915) and People v. Reynolds, 578 P.2d 647 (Colo. 1978): Cited by plaintiffs below but found unhelpful; neither endorses the granular statement-by-statement parsing the trial court performed.
Jordan v. Terumo BCT, Inc., 2024 CO 38, 550 P.3d 628: Although addressing the attorney–client privilege, the Court employed its “facts vs. communications” framework by analogy: facts are discoverable; a party’s privileged communications containing those facts are not. Plaintiffs must obtain facts from the party, not by penetrating privileged communications.
People v. Cortes-Gonzalez, 2022 CO 14, 506 P.3d 835 and People v. Madera, 112 P.3d 688 (Colo. 2005): In-camera review of privileged material is itself a form of disclosure and risks chilling the protected relationship; courts must minimize such reviews. The Court invokes these to caution against routine in camera review of medical records.
Gadeco, LLC v. Grynberg, 2018 CO 22, 415 P.3d 323; People v. Palomo, 31 P.3d 879 (Colo. 2001); Samms v. District Court, 908 P.2d 520 (Colo. 1995): The privilege is personal to the patient; it cannot be invoked or waived by third parties, underscoring that neither law enforcement nor a district attorney can nullify the patient’s privilege.

Legal Reasoning

The Court’s analysis proceeds in four principal moves.

Standard and scope of review. Because the physician–patient privilege is statutory, interpretation of section 13-90-107(1)(d) is reviewed de novo. This frames the Court’s power to announce a categorical rule to guide trial courts.
The privilege attaches to treatment communications and records. The statute protects information acquired by the physician “in attending the patient” that is “necessary to enable [the physician] to prescribe or act.” The Court refuses to slice this language into a hindsight inquiry about each individual sentence. Instead, when the physician is in a treatment role and the information is obtained as part of diagnosis or care, the records memorializing that communication are privileged as a whole. This follows Covington, acknowledges the treatment context of history-taking in emergency medicine, and avoids re-litigating medical necessity in discovery disputes.
Rejecting sentence-by-sentence parsing and routine in camera review. The Court identifies three systemic problems with the trial court’s approach:
- It chills candor: Frequent in camera incursions into medical confidences—even to judges—are a form of disclosure and discourage patient honesty.
- It is unpredictable and unworkable: Patients cannot be expected to anticipate, during treatment, which statements a judge might later deem “necessary.”
- It substitutes judicial for medical judgment: Courts lack the expertise to retrospectively parse what was medically needed for treatment.
These concerns lead the Court to a bright-line, administrable rule.
Facts versus communications. Echoing Jordan, the Court reconciles the privilege with civil discovery needs: the privilege protects communications in the medical record, not the underlying facts. Plaintiffs can discover the facts (e.g., how the crash occurred) directly from Jennings through interrogatories, requests for admission, or deposition—but not via his privileged medical records. The presence of a screenshot of those records in a police report does not eliminate the privilege, particularly where law enforcement allegedly obtained the records without consent or a proper basis and later leveraged them in ways collateral to the medical treatment.

Finally, the Court rejects plaintiffs’ waiver argument premised on the absence of a privilege log under C.R.C.P. 26(b)(5). On these facts, Jennings’s counsel asserted the privilege promptly, plaintiffs showed no prejudice, and “time was of the essence” once the breach was discovered. The Court underscores that in camera review may be appropriate in some cases, but only after parties follow the “well-worn procedures” of C.R.C.P. 26(b)(5) and after less intrusive alternatives are exhausted.

Impact and Implications

The decision is significant for Colorado civil practice, criminal–civil interfaces, and medical privacy:

Bright-line protection of treatment communications. Trial courts must treat medical records documenting what a patient told a treating provider during care as privileged. No more granular “medical necessity” slicing of individual sentences or clauses within medical records.
Discovery roadmap for litigants. Parties seeking facts about an incident that led to injury must use ordinary civil discovery tools directed at the party, not subpoenas or workarounds targeting medical records. This aligns discovery burdens with party testimony and avoids forensic relitigation of clinical notes.
Reduced reliance on in camera review. Judges should resist routine in camera reviews of medical records and should demand adherence to C.R.C.P. 26(b)(5) procedures. This reduces the chilling effect on candid physician–patient communications.
Law enforcement and prosecutorial handling of medical records. The opinion strongly signals that obtaining and disseminating medical records does not nullify the patient’s privilege in parallel civil litigation. Screenshots embedded in police reports are still off-limits in civil discovery when they memorialize privileged communications. The Court did not reach a broader “fruit of the poisonous tree” suppression theory in civil contexts, reserving that issue.
Waiver doctrine clarified. Failure to provide a privilege log is not an automatic waiver; prejudice, context, and prompt assertion matter. Still, practitioners should comply with Rule 26(b)(5) to avoid satellite litigation.
Emergency medicine histories. The Court acknowledges the clinical reality that mechanism-of-injury narratives often inform diagnosis and treatment. By treating these as privileged communications, the decision protects clinically necessary history-taking from piecemeal disclosure battles.
Public records dynamics. The opinion implicitly limits civil litigants’ ability to use public-records responses (e.g., CCJRA/CORA productions) as a backdoor to obtain privileged medical material.

Complex Concepts Simplified

Physician–patient privilege: A legal rule that lets patients prevent disclosure of confidential information obtained by their treating physician during medical care, when that information was needed for diagnosis or treatment. In Colorado, it is codified at section 13-90-107(1)(d).
Treatment communications vs. underlying facts: The privilege shields the private communications between the patient and physician (and the records that memorialize them). It does not shield the facts themselves. Opponents can still ask the party what happened; they just cannot obtain the party’s medical records to learn those facts.
In camera review: A judge’s private review of documents to decide privilege claims. Even this limited review counts as a disclosure of confidentiality, so courts should minimize it and use it only after following Rule 26(b)(5) procedures.
Waiver (express vs. implied): A patient can explicitly waive privilege. Implied waiver occurs when a party puts their physical or mental condition at issue as a claim or defense. Mere relevance of medical information is not enough to imply waiver; otherwise the exception would swallow the privilege.
Original jurisdiction under C.A.R. 21: A discretionary procedure the Colorado Supreme Court uses to intervene in extraordinary circumstances. Privilege disputes often qualify because disclosure cannot be undone—“once the cat’s out of the bag, it can’t be put back in.”

Practice Pointers

For plaintiffs: Seek the incident facts directly from the defendant via interrogatories, requests for admission, and deposition. Do not rely on law-enforcement-embedded screenshots of medical records or third-party productions to circumvent the privilege.
For defendants/patients: Promptly assert the privilege upon learning of an unauthorized disclosure. Use C.R.C.P. 26(b)(5) to log claims where feasible, and seek protective orders swiftly to prevent further dissemination.
For trial courts: Avoid routine in camera review of medical records; require compliance with Rule 26(b)(5); and apply the bright-line rule that treatment communications recorded in medical records are privileged as a whole.
For law enforcement and prosecutors: Treat patient privilege as personal to the patient; obtaining or sharing medical records does not effect a waiver. Coordinate carefully to avoid crossing the privilege boundary in civil matters.
For healthcare providers: Recognize that history and mechanism-of-injury narratives you record during treatment are generally privileged; requests for those records in civil cases should be evaluated for privilege and proper authorization.

Conclusion

Trenshaw v. Jennings cements a clear and administrable rule for Colorado: communications documented in medical records that a patient provides to a treating physician during the course of treatment for an injury are categorically protected by the physician–patient privilege. The Court rejects hindsight, sentence-by-sentence parsing of medical records and cautions against routine in camera review, emphasizing the privilege’s functional goals—promoting candid disclosure essential to diagnosis and treatment and safeguarding patient dignity.

At the same time, the Court preserves the integrity of civil discovery: facts are still discoverable from the party with knowledge; but privileged medical records are not the conduit for obtaining those facts. By harmonizing robust medical confidentiality with access to relevant information, the decision provides clear guidance for litigants, healthcare providers, and courts, and it strengthens the predictability and privacy foundations of Colorado’s physician–patient privilege jurisprudence.

Case Details

Case: In re: Lucas Trenshaw and Theresa Gardner, as Personal Representative for the Estate of Timothy Trenshaw v. Eugene Jennings and All State Enterprise, Inc., Supreme Court Case No. 24SA262, 2025 CO 23, 568 P.3d 413 (Colo. May 12, 2025) (en banc) (Justice Samour, for a unanimous Court).