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Margot Anderson was rear-ended while driving her car in 1989. Yolanda Martinez was hit in her car two years later. Together the two Colorado women helped change the state’s open-records laws to make it easier for the public to examine court documents once considered off limits.
Their unlikely legal journey began nearly eight years ago. After Anderson’s car was hit, she filed an injury claim with Home Insurance Company. Her claim was denied, however, largely owing to the testimony of a prominent Denver psychiatrist named Frederick Lewis.
Lewis had practiced medicine actively in the area for many years, as director of psychiatric services at Denver General Hospital in the late 1950s and later as the first director of the Fort Logan Mental Health Center. He started his own private practice in 1971.
But Lewis was best known in Denver for his interest in the way doctors were insured. In 1981 he became heavily involved in a new physician-owned and -operated liability trust that was formed to fight the rising cost of malpractice insurance. Five years later the trust became Copic Insurance Company, which now provides malpractice-insurance coverage for about 85 percent of the state’s doctors.
Lewis retired in 1995–but not before becoming active as what is known as an “independent medical examiner.” IMEs are called on to testify in trials whenever medical conditions need to be described for a jury. Lewis’s most notorious case came in 1985, when he testified in a Del Norte trial that eating nearly 100 cough drops caused a Missouri man to become deranged while hunting in Colorado. The man stabbed one of his companions and then sat inside his tent after pouring gasoline over it and lighting it on fire.
In theory, IMEs are supposed to be objective conduits of scientific learning and expertise. Yet according to court documents, Lewis was frequently called on to testify in favor of insurance companies, and some Denver defense attorneys considered him to be biased. One test Lewis commonly used to analyze subjects in court cases was a computerized “neuropsychological” exam. He used it to determine that Margot Anderson was faking the injuries she said she received in the 1989 car accident.
The computerized analysis was hardly universally accepted, however. In fact, in 1990, according to court documents, Lewis was ordered by the Colorado Board of Medical Examiners to stop using such tests because he was not qualified to use or interpret them.
Margot Anderson sued Lewis for malpractice. In August 1993 she reached a settlement with the psychiatrist. As is the case with many such settlements, it was reached with the condition that its terms, as well as the entire court file, remain sealed. In his decision agreeing to shut the case to public perusal, Judge Morris Sandstead Jr. wrote: “The parties have bargained for and agreed to extensive confidentiality [and] non-disclosure…The privacy interests of the parties outweighs the public interest in access to the Court files.”
As Margot Anderson was taking her fight against Lewis through the courts, Yolanda Martinez was having her own problems. On September 3, 1991, while driving on I-25 outside of Pueblo, a drunk driver from Ordway slammed his vehicle into her Toyota pick-up truck. The truck was smashed so hard it skidded 100 yards from the point of impact. Martinez claimed substantial injuries and filed a claim with her insurance company, State Farm.
State Farm contested her claim. In its attempt to prove that Martinez was lying, the insurance company hired Frederick Lewis. Using results from his neuropsychological exam as evidence, Lewis sided with State Farm, concluding that Martinez was “malingering.” Martinez quickly sued Lewis for malpractice.
During the course of preparing the case against Lewis and State Farm, Martinez’s attorney, Dan Hemphill, decided to claim that Lewis’s opinion was worthless because he was nothing more than a hired gun for insurance companies. In one hearing, Hemphill argued that every single time Lewis had used the neuropsychological test, the doctor had concluded the accident victim in question was faking his or her injuries or suffering from a pre-existing condition.
While doing his research, Hemphill heard about Margot Anderson and her case against Lewis. Noting the obvious parallels between the two cases–and suspecting that State Farm may have known that Lewis’s neuropsychological testing methods were dubious–Hemphill asked the judge to let him see the Anderson file in the spring of 1994. His request was denied. Later that year he took his case to the Colorado Court of Appeals.
Although Colorado’s Open Records Act declares that “the public policy of this state [is] that all public records shall be open for inspection by any person at reasonable times,” confidential settlements in court cases are not uncommon. The reason is that many defendants (physicians in malpractice cases, for instance) want to protect their reputations and so in effect are willing to cut a deal: They’ll agree to settle a case against them if all the nasty information that came out during the course of the case is kept quiet. Judges use such promises of confidentiality as an incentive for parties to settle cases rather than go through the time and expense of a trial.
In late 1995 Lewis used exactly this reasoning in front of the appeals judges. He was quickly rejected. The judges pointed out that “it is unreasonable…for the parties to litigation to expect or to assume that all of the court files will remain private.”
Lewis’s second argument in favor of keeping the Anderson file private was that, by disclosing the negative information contained in the file, his reputation would suffer–in short, his right to privacy outweighed the public’s right to examine the court documents. (State law requires physicians to report malpractice settlements to the Board of Medical Examiners, regardless of confidentiality provisions.) But the appeals judges shot down this argument, too.
“There has been no showing made as to how the possibility of such harm outweighs the public interest in any of the judicial records,” they wrote. “On the contrary, because Lewis is a licensed health-care professional, a charge that he has engaged in unprofessional conduct implicates the public interest and involves more than a private dispute between individuals. If the charge is proven accurate, the public should have access to that information; if the charge is unfounded, the public should be made aware of that fact, as well.”
On February 23 of last year the appeals court determined that Hemphill and Martinez were entitled to look at Anderson’s case against Lewis. Lewis died on June 9, 1996, but his estate appealed the case to the Colorado Supreme Court.
The state’s highest court refused to hear the case. Taking into account the sixty-day waiting period for such decisions to go into effect, that means that Hemphill and Martinez will get their first look at Margot Anderson’s case against Lewis sometime next month.
Ronald Nemirow, the attorney who represented Lewis throughout the case, says one negative effect of the decision is that it could slow down the courts. He points out that, stripped of the promise of privacy, participants in court disputes might be less likely to settle their cases.
Thomas Kelley, a Denver lawyer specializing in open-records laws, predicts that the Anderson case will make judges think twice before agreeing to seal a file after a settlement. In fact, Kelley, who represents the Denver Post, has already tried to use the decision to his advantage. Last month he cited the Anderson case in an effort to examine former cable millionaire Robert Magness’s massive probate file, which has been preliminarily sealed by a judge at the request of his relatives. That case is pending.
