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Kobe Bryant's lawyers fight for medical records

By Matt Bean
Court TV

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(Court TV) -- Kobe Bryant's lawyers aren't likely to win one of the first major evidentiary skirmishes of the basketball star's sexual assault case -- a battle over the medical records of the woman who accuses him of raping her.

In seeking records of the woman's February 2003, hospitalization, Bryant's lawyers have taken on a beefed-up set of patient-doctor confidentiality laws, a precedent-setting 2002 Colorado State Supreme Court decision, and just about everyone else involved in the Eagle County case.

The incident in question occurred when the 19-year-old alleged victim was a student at the University of Northern Colorado. Campus police took the woman into custody at her dorm, and delivered her to a Greeley, Colorado, clinic where she was held for treatment and observation.

A former roommate of the alleged victim has said that the February hospitalization, as well as a May 2003, hospitalization in Eagle County, were drug overdose suicide attempts. Records of the reported breakdowns could be used by Bryant's lawyers to call into question the woman's grasp of reality.

"The key question is what triggered the hospitalization," said former Denver chief deputy district attorney and current defense attorney Craig Silverman. "Was it the unsatisfactory end of a relationship with her boyfriend? The defense could argue that [the victim] acts irrationally and destructively when she experiences the unsatisfactory end of a relationship with a man."

The February and May incidents may not be alone. It remains unknown whether two 911 calls placed for medical assistance from the accuser's Edwards, Colorado, home in the year before the alleged assault correspond to the existing reports. On Wednesday, a judge denied a local paper's request for transcripts and tapes of the calls.

Bryant, 25, admitted to committing adultery with the 19-year-old hotel employee, but called the sex consensual. A preliminary hearing to determine whether he will be held over for trial is scheduled for October 9. If convicted of the class-three felony charge of sexual assault, Bryant could land in jail for four years to life.

The motivation for Bryant's lawyers is clear. But attacking the victim is a risky defense in any sexual assault trial, and by subpoenaing the February records, Bryant's lawyers, Pamela Mackey and Harold Haddon, have taken a risky step, say some experts.

Eagle County judge Frederick Gannett is charged with refereeing this battle between the victim's doctor-patient privilege (a right similar to attorney-client, clergy and spousal protections) and Bryant's sixth amendment right to confront his accuser.

"The court has to look at those two competing interests," said Karen Steinhauser, a former Denver prosecutor who specialized in domestic violence. "In order for there to be effective treatment and diagnosis, people have to be able to be candid with their doctors without the fear that that information is going to be made public. On the other hand, there could be things in those records which the defense needs in order to be able to effectively cross-examine the victim."

The 2002 HIPAA (Health Insurance Portability & Accountability Act) gave patients stronger control over their medical records, allowing them to dictate when, and to whom, their information was released. But a patient's right of confidentiality is not absolute.

Gannett has a series of decisions to make concerning the records. He could choose to examine the documents "in camera," or on his own, to determine whether they contain information relevant to the competency of the victim. If so, he could disclose that information to the defense.

Or Gannett could take a completely hands-off approach to the documents, and destroy them without even breaking the seal.

That's what the clinic (which already turned the records over to Gannett but said it did so in error) has advocated, claiming a 2002 sexual assault case set the precedent that the information should stay under wraps.

In Colorado v. Sisneros, the victim of a sexual assault did not consent to waive the doctor-patient privilege, and the Colorado Supreme Court ruled that "once the privilege is attached, the Defendant cannot compel discovery unless it is waived."

The defendant does not have to explicitly waive the privilege, but testifying at a preliminary hearing, ruled the state Supreme Court, is not an implicit waiver.

The victim's own lawyers have made a similar argument in seeking to have Bryant's subpoena quashed, and prosecutors are expected to support that argument.

Bryant's lawyers may have little chance of winning the medical records battle at this stage of trial, but they may just be trying to get "a few swings at the pitch," said Silverman. No matter what Gannett's decision, the medical records issue will likely surface again if the case heads to trial, as most expect it will.

Then, according to former Eagle County prosecutor David Lugert, the defense could argue that, by testifying, the alleged victim is waiving her privilege to keep her medical records under wraps.

"I suspect that's what's going to happen," said Lugert. "They have a right to challenge her competency. And by being a witness, she has to undergo the same scrutiny every other witness does."

Rape shield laws that protect the sexual pasts of alleged sexual assault victims might not keep out the medical records, which could be seen as establishing a "pertinent trait of character" admissible under Colorado's rules of evidence.

For now, the records remain under seal with the Eagle County court, but after Bryant's lawyers requested an evidentiary hearing Thursday to discuss the admissibility of the medical records, a resolution to the records battle could be on the horizon. At least for now.

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