In Re the Matter of the Estate of Ashworth, Robert Harrison

                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203


                                  

                      Supreme Court Case No. 24SA19
                   Original Proceeding Pursuant to C.A.R. 21
                Weld County District Court Case No. 23PR30198
                      Honorable Julie C. Hoskins, Judge

                                     In Re

                         In the Matter of the Estate of:

                     Robert Harrison Ashworth, Deceased.

                               Rule Discharged
                                    en banc
                                June 10, 2024



Attorneys for Petitioner Christine Miller:
The Stout Law Firm, LLC
Stephanie Stout
      Greeley, Colorado

Attorneys for Respondent Brian Ashworth:
Gant Law, LLC
Brynne Gant
Ben Lutter
Jess McLaggan
      Greeley, Colorado

Aitken Law, LLC
Sharlene Aitken
      Denver, Colorado
Attorneys for Respondent Weld County District Court:
Philip J. Weiser, Attorney General
Allison S. Block, Assistant Attorney General Fellow
      Denver, Colorado

Attorneys for Amicus Curiae Trust & Estate Section of the Colorado Bar
Association:
Conover Law, LLC
Tammy D. Conover
Scott H. Challinor
Nicholas D. McWharter
      Greenwood Village, Colorado

Miller & Steiert P.C.
Spencer J. Crona
      Littleton, Colorado




JUSTICE HART delivered the Opinion of the Court, in which CHIEF JUSTICE
BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL,
JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.




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JUSTICE HART delivered the Opinion of the Court.

¶1    Medical records can play a vital role in contested probate proceedings when

the deceased’s mental capacity prior to passing is in question. Sometimes, though,

when one party to a will dispute seeks to introduce medical records of the

deceased, the other party resists disclosure, asserting that the records are protected

by the physician-patient privilege. That is what happened here.

¶2    Respondent, Brian Ashworth, contested the validity of his father’s most

recent will, raising questions about Robert Harrison Ashworth’s testamentary

capacity and susceptibility to undue influence.           The trial court ordered the

decedent’s daughter, Christine Miller, to produce medical records for the final

eight years of Ashworth’s life for an in camera review. She resists any disclosure

of the records, citing the physician-patient privilege.

¶3    We hold that the physician-patient privilege survives the privilege holder’s

death, but that the testamentary exception provides for disclosure of the

decedent’s privileged medical records if they are required to administer the estate.

We accordingly discharge the rule to show cause and lift the stay on the trial

court’s in camera review of Ashworth’s medical records.

                       I. Facts and Procedural History

¶4    Robert Harrison Ashworth died on December 22, 2022. In 2017, when he

was in the early stages of Alzheimer’s disease, Ashworth executed a will that



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named his son, Brian, as his estate’s personal representative. The will divided

Ashworth’s estate evenly among his four children: Christine, Gwendolyn, Brian,

and Kimberly.1 Then, in early 2022, Ashworth executed a new will that named

Christine as the personal representative and included only Christine and

Gwendolyn as beneficiaries. The 2022 will excluded Brian and Kimberly from any

inheritance.

¶5    In the years between the execution of the two wills, Ashworth’s memory

and ability to live independently declined as conflict among his children

intensified. Brian and Kimberly ultimately lost contact with Ashworth. Christine

and Gwendolyn maintained control over Ashworth’s care and were allegedly

present during the signing of the 2022 will.

¶6    After Ashworth’s death, Christine submitted the 2022 will for probate.

Brian contested its validity and sought access to medical records from the last eight

years of Ashworth’s life, starting from the first time he was diagnosed with

declining mental faculties. Brian claimed that the records would shed light on

Ashworth’s decision-making capacity (or lack thereof) at the time he executed his

final will. Christine, however, refused to provide any medical records, citing the

physician-patient privilege. The trial court considered written motions from both



1 Throughout, we refer to the decedent as Ashworth, and to his children by their

first names.


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parties before ordering Christine to provide the medical records for an in camera

review, stating that the court would “not release any records which are not related

to the mental capacity of the decedent.”

¶7    Christine petitioned this court for relief from the trial court’s order, and we

granted the petition.

                                  II. Analysis

¶8    After affirming our jurisdiction under C.A.R. 21, we hold that (1) the

physician-patient privilege survives death and (2) the testamentary exception

allows for disclosure of probative privileged materials when necessary to

administer an estate. 2

                                A. Jurisdiction

¶9    This court may exercise its original jurisdiction pursuant to C.A.R. 21 when

an ordinary appellate remedy would be inadequate.            C.A.R. 21(a)(2).   In a

discovery dispute over privilege, like the one here, the harm occurs before trial, at

the time the privileged material is disclosed. Gadeco, LLC v. Grynberg, 

, 

. Even a favorable appellate outcome would come too late to


2 Christine also claimed at the trial court and argues here that Ashworth’s medical

records are protected under the federal Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”). 42 U.S.C. §§ 1320d to 1320d-9. HIPAA
does protect medical records, but it includes an exception that allows for
disclosure in accordance with a court order. 

(e)(1)(i) (2024).
Because the exception and its applicability in this circumstance are clear, we need
not address this argument further.


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vindicate the privilege-holder because disclosure would have already happened.

 We therefore frequently exercise our jurisdiction under Rule 21 to intervene in

circumstances like those presented here. See, e.g., id.; Clark v. Dist. Ct., 

 (Colo. 1983); Hartmann v. Nordin, 

, 48–49 (Colo. 2006). As in these

other discovery disputes, we find that interlocutory review is appropriate, and we

review the trial court’s order for an abuse of discretion. Grynberg, ¶ 8, 

.

            B. The Physician-Patient Privilege Survives Death

¶10    Colorado’s physician-patient privilege is statutory. “A physician, surgeon,

or registered professional nurse . . . shall not be examined 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. . . . ”

§ 13-90-107(1)(d), C.R.S. (2023). The privilege applies with equal force whether the

privileged information is sought via in-court testimony or through pretrial

discovery. Grynberg, ¶ 10, 415 P.3d at 327–28.

¶11    The purpose of this privilege is “to enhance the effective diagnosis and

treatment of illness by protecting the patient from the embarrassment and

humiliation that might be caused by the physician’s disclosure of information

imparted to him by the patient during the course of a consultation for purposes of

medical treatment.”     Clark, 

.     This purpose mirrors that of the



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attorney-client privilege, which aims to promote candor in legal consultations by

protecting against later disclosure of confidential material, even after the client has

died. See Wesp v. Everson, 

 (Colo. 2001).

¶12   In further similarity to the client in the attorney-client relationship, the

patient is the protected party in the physician-patient relationship. See In re

Shapter’s Est., 

, 691 (Colo. 1905) (“The purpose of the statute in regard to

privileged communications made to an attorney or physician is to [protect] the

client or patient.”), superseded by statute on other grounds, § 7297, C.R.S. (1908), as

recognized in James v. James, 

 (Colo. 1918). Accordingly, the patient,

like the client, is the only person who can expressly or impliedly waive the

privilege. Grynberg, ¶ 10, 

 (patient); In re Est. of Rabin, 

, 

, 1219 (client).

¶13    This court has never expressly held that the physician-patient privilege

extends beyond the death of the patient, but we have made clear that the

attorney-client privilege does. See, e.g., Wesp, 

; Rabin, ¶ 37, 474 P.3d

at 1220; see also Swidler & Berlin v. United States, 

 (1998)

(“Posthumous disclosure of [privileged] communications may be as feared as

disclosure during the client’s lifetime.”). Noting the privileges’ similarities in

purpose and operation, we hold that the protections of the physician-patient

privilege continue after the privilege-holder has died.



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        C. The Testamentary Exception Allows for Disclosure of
                 Privileged Materials When Necessary for
                        Administration of an Estate

¶14   While both the physician-patient privilege and the attorney-client privilege

extend past death, neither is absolute. When a will is contested, withholding

information in deference to an absolute privilege of either variety would frustrate

the purposes of the Colorado Probate Code: settlement and administration of the

estate in accordance with the decedent’s testamentary intent. § 15-10-102(2)(b),

C.R.S. (2023). We have thus applied a testamentary exception to these privileges,

allowing them to be pierced when a waiver of the privilege is necessary to

administer the estate.

¶15   This court recognized a testamentary exception to the attorney-client and

physician-patient privileges as early as 1905. In Shapter’s Estate, the decedent’s

attorney and physicians were permitted to testify about the decedent’s

testamentary capacity regarding a contested will. 85 P. at 691. We upheld the

inclusion of both the medical and legal testimony, citing other jurisdictions’

acceptance of the exception. Id. Nearly 100 years later, in Wesp, we affirmed that

“Colorado recognizes the testamentary exception” for the attorney who prepared

the will. 33 P.3d at 200–01. We noted that the purpose of the exception is to further

the testator’s intent.   Id.   More recently, in Rabin, we again affirmed the




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testamentary exception in the context of attorney-client privilege. ¶¶ 41–42, 474

P.3d at 1220–21.

¶16   Shapter’s Estate is the only case in which we have explicitly applied the

testamentary exception to the physician-patient privilege. 85 P. at 691 (“[W]hen

the dispute is between the devisee and heirs at law, all claiming under the

deceased, either the devisee or heirs, may call the attending physician as a

witness.”). But several of our contested will cases have mentioned, without

fanfare, that the decedent’s physician testified about their patient’s mental or

physical condition.    See, e.g., Ofstad v. Sarconi, 

 (Colo. 1952);

Cunningham v. Stender, 

 (Colo. 1953); In re Sebben’s Est., 

, 517 (Colo. 1962); Breeden v. Stone, 

 (Colo. 2000); see also

David K. Johns et al., Colorado Estate Planning Handbook § 53.16.2 (7th ed. 2022) (“It

is well established that evidence as to the decedent’s condition of health is

discoverable in will contest litigation where lack of testamentary capacity or

susceptibility of undue influence has been alleged.”). We are not breaking new

ground here. We are simply explicitly recognizing what has been longstanding

practice.

¶17   Furthermore, as explained above, the attorney-client and physician-patient

privileges are motivated by the same purpose: promoting full disclosure within

the relationship. They operate similarly regarding waiver, and they both survive



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the death of the privilege-holder. Both privileges would serve to frustrate the

purposes of probate proceedings if they were not subject to a testamentary

exception. We have expressly recognized the exception to the attorney-client

privilege, and today we do the same for the physician-patient privilege.

¶18   The testamentary exception to the physician-patient privilege is particularly

important in contested will cases when a party places the decedent’s physical or

mental health at issue by raising “sound mind” or “undue influence” claims. Both

claims often cannot be proved or disproved through direct evidence; the factfinder

must draw inferences from evidence about what the decedent knew, understood,

and believed when the contested will was executed. See Davis v. Davis, 

 (Colo. 1917) (noting that, in these cases, “the only positive and affirmative

proof to be expected or required is of facts and circumstances from which undue

influence or mental incapacity may be reasonably inferred”). These circumstantial

assessments would be severely curbed if the decedent’s relevant medical records

were off the table.    The “sound mind” factors and the “undue influence”

susceptibility assessment both typically require medical or mental condition

evidence. See Cunningham, 255 P.2d at 981–82 (listing the five “sound mind”

factors for assessing the decedent’s “mind and memory” when testamentary

capacity is at issue); Lehman v. Lindenmeyer, 

 (finding that it was




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appropriate for the jury to take into consideration the decedent’s “physical and

mental condition” in an undue influence case).

¶19   That is precisely the situation we are presented with here. The parties’

dispute concerns Ashworth’s medical records, which would normally fall under

the physician-patient privilege. Brian’s claims regarding the validity of the 2022

will rest on Ashworth’s mental condition and susceptibility to undue influence

during the years of his Alzheimer’s disease-related decline. If the medical records

at issue here illuminate Ashworth’s testamentary capacity and aid the court in

determining whether the 2022 will was valid, the testamentary exception applies.

¶20   Of course, this exception applies only to pertinent records. The order that

gave rise to this petition requires an in camera review, and it specifies that any

subsequent disclosure will be limited to records relevant to Ashworth’s mental

capacity.   In camera review protects against disclosure of irrelevant medical

information to which the exception does not extend. See Rabin, ¶ 42 n.8, 474 P.3d

at 1221 n.8.3




3 Christine argues that the trial court erred in granting the motion for in camera

review of the requested materials without holding a hearing. Christine did not
request a hearing in any of the motions practice before the trial court and thus
waived the argument. In any event, the decision whether to grant a hearing before
ruling on such a motion is within the sound discretion of the court.


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                                III. Conclusion

¶21   We hold that while the physician-patient privilege extends past death, the

testamentary exception allows for disclosure of privileged materials in probate

proceedings, if those materials are necessary to settle and administer the

decedent’s estate. Accordingly, we discharge the rule to show cause and remove

the stay on the trial court’s proceedings.




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