State v. Trevizo

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: July 30, 2026 4 NO. S-1-SC-40478 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellant, 7 v. 8 ALEXEE J. TREVIZO, 9 Defendant-Appellee. 10 INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF EDDY 11 COUNTY 12 Jane Shuler Gray, District Judge 13 Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Michael J. Thomas, Assistant Solicitor General 16 Albuquerque, NM 17 for Appellant 18 Gary C. Mitchell, PC 19 Gary C. Mitchell 20 Ruidoso, NM 21 Law Office of Amber Fayerberg 22 Amber Fayerberg 23 Ngunguru, New Zealand  1 Pregnancy Justice 2 Kulsoom Ijaz 3 Karen Thompson 4 New York, NY 5 for Appellee 6 The Law Office of Ryan J. Villa 7 Katherine Loewe 8 Richelle Anderson 9 Albuquerque, NM 10 University of California, Irvine School of Law 11 Ji Seon Song 12 Irvine, CA 13 for Amici Curiae Ji Seon Song, American Civil Liberties Union of New Mexico & 14 National Police Accountability Project 15 Dodd Law Office, LLC 16 Christopher A. Dodd 17 Albuquerque, NM 18 Lawyers for Good Government 19 Khadijah Silver 20 Washington, DC 21 for Amicus Curiae American College of Obstetricians and Gynecologists  1 OPINION 2 VIGIL, Justice. 3 {1} This case requires us to clarify the contours of our physician-patient privilege, 4 set forth in Rule 11-504 NMRA, and waiver of the privilege in light of the need to 5 protect patient autonomy and access to care. For the reasons set forth herein, we 6 conclude that the physician-patient privilege belonging to Defendant Alexee Trevizo 7 was not waived and affirm the order of the district court suppressing all evidence 8 obtained by the State subject to the privilege. 9 I. BACKGROUND 10 A. Facts 11 {2} Defendant was a nineteen-year-old high school student on the occasion of the 12 incidents leading to charges against her. On January 27, 2023, she went to the Artesia 13 General Hospital Emergency Department (ED) in Artesia, New Mexico, with her 14 mother around midnight seeking treatment for severe lower back pain. She told Dr. 15 Heather M. Vaskas, the ED doctor, and nursing staff that her pain began after 16 cheerleading practice earlier that afternoon. Asked if she was pregnant, Defendant 17 responded she was not, stating she had vaginal bleeding and that she was currently 18 “on her period.”  1 {3} Triage began at 12:13 a.m., and Defendant “rated her back pain to be 10 out 2 of 10, with 10 being the most severe.” At 12:18 a.m., Defendant was given ketorolac 3 (“a non-steroidal anti-inflammatory” drug), acetaminophen (“a pain killer and fever 4 reducer”), ondansetron (a drug to prevent vomiting), and cyclobenzaprine (“a strong 5 muscle relaxant”). Ten minutes later, at 12:28 a.m., Defendant’s nurse administered 6 intravenous (IV) fluids of sodium chloride with additional ketorolac, additional 7 ondansetron, an unknown additional amount of cyclobenzaprine, and an unknown 8 amount of morphine. Morphine is “a strong pain killer . . . [that] induces sleep or 9 drowsiness” and is listed as “a Schedule II drug on the schedule of the Controlled 10 Substances Act.”1 11 {4} At 12:28 a.m., Dr. Vaskas ordered a serum pregnancy test, a standard practice 12 for someone of Defendant’s age with her symptoms. The serum was collected at 13 12:30 a.m., and the result showing Defendant was pregnant was reported to Dr. 14 Vaskas and Defendant’s nurse at 12:51 a.m. Notwithstanding the positive pregnancy 15 test, Defendant’s nurse continued administering the IV medications to Defendant. 16 Defendant continuously received ketorolac, ondansetron, cyclobenzaprine, and See Controlled Substances Act ‒ Alphabetical Order, U.S. Drug Enf’t 1 Admin. 17 (May 22, 2026), https://www.deadiversion.usdoj.gov/schedules/ orangebook/c_cs_alpha.pdf [https://perma.cc/XS34-83YK].  1 morphine for forty-eight minutes from the time the pregnancy test result was 2 reported to Dr. Vaskas and Defendant’s nurse until the IV was disconnected; the 3 amount of medication administered is unknown. The IV was stopped at 1:39 a.m., 4 when Defendant told her nurse she urgently needed to have a bowel movement. The 5 sensation of needing a bowel movement may have been an indication that 6 Defendant’s cervix was fully dilated and she was moving into the delivery phase.2 7 Nevertheless, Defendant was not informed by any hospital staff that she was 8 pregnant. The nurse disconnected the IV to allow Defendant to use the bathroom, 9 and hospital security camera footage shows Defendant running down the hallway, 10 past the nursing station, clutching her backside. 11 {5} Defendant was in the locked bathroom for nineteen minutes. While Defendant 12 was in the bathroom Defendant’s mother and nursing staff checked on Defendant 13 but did not enter the bathroom. From 1:53 to 1:56 a.m., Dr. Vaskas and nursing staff 14 again checked on Defendant without entering the bathroom, but they were ready to 15 open and enter the bathroom with a key. Defendant gave birth to a newborn she 16 described as not moving, crying, or breathing. 2 See Labor and Delivery, Eunice Kennedy Shriver Nat’l Inst. of Child Health & Hum. Dev. https://www.nichd.nih.gov/health/topics/factsheets/labor-delivery [https://perma.cc/ZW67-QKS7] (last visited June 23, 2026).  1 {6} At 1:57 a.m., Defendant exited the bathroom and walked back to her room 2 with Dr. Vaskas. Minutes later, at 2:02 a.m., Dr. Vaskas ordered a transvaginal 3 ultrasound for Defendant because of her profuse vaginal bleeding. At 2:20 a.m., Dr. 4 Vaskas performed a pelvic exam on Defendant for the first time. Despite noting a 5 “significant amount of blood,” “multiple extremely large clots,” and Defendant’s 6 “wide open cervix,” Dr. Vaskas did not inform Defendant of her dire emergency 7 condition. 8 {7} After being called to clean up blood from the bathroom and hallway, ED 9 cleaning staff found the newborn in a trashcan inside the bathroom at 2:27 a.m. Dr. 10 Vaskas pronounced the newborn dead at 2:28 a.m. Autopsy lab results later showed 11 that the deceased newborn had free morphine in his heart blood. 12 {8} Realizing that Defendant was not only vaginally bleeding but had just given 13 birth and could die from a postpartum hemorrhage, Dr. Vaskas contacted Lovelace 14 Regional Medical Center (Lovelace) in Roswell, New Mexico, to arrange an urgent 15 transfer. Dr. Vaskas did not reexamine Defendant or discuss Defendant’s condition 16 with her until law enforcement personnel were present as witnesses. 17 {9} Law enforcement was notified immediately, and two police officers with the 18 Artesia Police Department arrived at 2:38 a.m. The charge nurse was the first to 19 speak to them and immediately told them Defendant “wouldn’t tell us she was  1 pregnant” and “killed the kid.” Dr. Vaskas joined the conversation and told the 2 officers that she had not yet told Defendant “what was going on” or about 3 Defendant’s need for an urgent medical transfer. Dr. Vaskas told the officers the 4 gravity of Defendant’s medical condition: “So officers, so, first thing, I need to make 5 sure the mother is stable. I don’t know if she delivered a placenta, she is bleeding a 6 lot.” She asked if “one of [them wanted] to be part of the conversation” and invited 7 the officers into Defendant’s room. The officers both proceeded to Defendant’s room 8 together with Dr. Vaskas and the charge nurse. 9 {10} Just after 2:41 a.m., the two uniformed, armed male police officers, the male 10 charge nurse, and Dr. Vaskas entered Defendant’s room. Defendant’s mother was in 11 the room as her designated caregiver and emergency contact. Dr. Vaskas positioned 12 herself at Defendant’s bedside, while the officers and the charge nurse blocked the 13 doorway. Dr. Vaskas immediately confronted Defendant with the statement, “We 14 discovered a dead baby in the bathroom,” and Defendant responded, apparently not 15 only to Dr. Vaskas, but also to the police “I’m sorry, it came out of me; I didn’t know 16 what to do.” Defendant added that she held the baby and there was “‘no movement, 17 no breathing, nothing.’” One of the officers wrote in his report that, after making this 18 statement, Defendant was detained, that she was not free to leave, and that he stood  1 at the doorway to ensure she could not leave. Defendant was officially detained 2 within three minutes after the police officers entered the room. 3 {11} Following this confrontation, Dr. Vaskas for the first time told Defendant that 4 she had a medical emergency and asked Defendant’s mother for consent to be 5 airlifted to the nearest regional hospital because Defendant “just had a baby and I 6 don’t know if [Defendant] delivered the placenta. She’s bleeding significantly.” The 7 officers remained in Defendant’s room even as Defendant received another vaginal 8 examination. Defendant was airlifted to Lovelace almost two hours after Dr. Vaskas 9 determined that she could “die” from postpartum hemorrhage. 10 B. Motion to Suppress 11 {12} Defendant was charged with one count of first-degree murder or, in the 12 alternative, intentional abuse of a child resulting in death, and one count of tampering 13 with evidence. Defendant filed a motion in the district court: (1) to suppress all 14 statements made to her medical providers on the basis that her physician-patient 15 privilege under Rule 11-504 was violated and (2) to suppress all statements she made 16 in the presence of the police officers on the basis that the statements were obtained 17 in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Following a hearing, the 18 district court entered detailed findings of fact and conclusions of law and, in all 19 respects, granted Defendant’s motion.  1 {13} The district court concluded that (1) Defendant’s statements to her healthcare 2 providers are confidential and protected under the physician-patient privilege of 3 Rule 11-504, (2) Defendant did not waive the privilege notwithstanding the presence 4 of the police officers when she responded to Dr. Vaskas’s statement that a dead baby 5 was discovered in the bathroom, (3) Defendant did not waive the privilege 6 notwithstanding her mother’s presence, and (4) when Dr. Vaskas entered 7 Defendant’s room and told Defendant that a dead baby was discovered in the 8 bathroom, Defendant’s right to receive Miranda warnings was violated. 9 {14} In its analysis, the district court explained that the statement made by 10 Defendant’s own doctor that a dead baby was discovered in the bathroom was made 11 “in a highly confrontational manner” and “by any reasonable interpretation is 12 shocking, confrontational, and designed to elicit a response.” Further, the district 13 court explained, by failing to advise Defendant of her right to confidentiality under 14 the physician-patient privilege, by failing to invoke the privilege on her behalf, and 15 by entering Defendant’s room only when accompanied by the police, Dr. Vaskas 16 acted as an agent of law enforcement: “[R]efusing, or at the least, failing, to give 17 shocking information to her patient except in the presence of law enforcement made 18 Dr. Vaskas an agent of law enforcement.” Furthermore, the district court found, 19 Defendant was surrounded by law enforcement officers, Defendant was not free to  1 leave and was effectively in custody, and Defendant was not given Miranda 2 warnings. 3 {15} The State appeals directly to this Court. N.M. Const. art. VI, § 2 (stating that 4 appeals in cases imposing a sentence of life imprisonment shall be taken directly to 5 this Court); NMSA 1978, § 39-3-3(B)(2) (1972) (authorizing an appeal to this Court 6 or our Court of Appeals by the state from a decision or order suppressing or 7 excluding evidence); State v. Smallwood, 2007-NMSC-005, ¶¶ 6, 10-11, 141 N.M. 8 178, 152 P.3d 821 (observing that the New Mexico Supreme Court has jurisdiction 9 to hear interlocutory appeals in situations where a defendant may possibly be 10 sentenced to life imprisonment or death). 11 {16} On appeal, the State argues (1) that Defendant had no physician-patient 12 privilege because there is an exception to the privilege for reports that doctors are 13 required by law to make to law enforcement, (2) that any privilege was waived by 14 the presence of the police officers and Defendant’s mother during Defendant’s 15 communications with her doctor, and (3) that there was no Miranda violation. We 16 reject the State’s arguments related to the physician-patient privilege. Because we 17 hold that Defendant’s statements were privileged, it is unnecessary for us to address 18 the Miranda question.  1 II. DISCUSSION 2 {17} Our review of the law of privileges and waiver is de novo. Allen v. LeMaster, 3 2012-NMSC-001, ¶ 11, 267 P.3d 806 (stating that a trial court’s construction of the 4 laws of privileges and waiver is a question of law subject to de novo review); see 5 Pacheco v. Hudson, 2018-NMSC-022, ¶ 24, 415 P.3d 505 (stating that whether 6 specific communications are privileged is a mixed question of fact and law subject 7 to de novo review). 8 {18} The district court ordered suppression of all evidence obtained by the State in 9 violation of the physician-patient privilege. The physician-patient privilege is set 10 forth in Rule 11-504(B) of our Rules of Evidence as follows: 11 A patient has a privilege to refuse to disclose, or to prevent any other 12 person from disclosing, a confidential communication made for the 13 purpose of diagnosis or treatment of the patient’s physical, mental, or 14 emotional condition, including drug addiction, between the patient and 15 the patient’s physician, psychotherapist, or state or nationally licensed 16 mental-health therapist. 17 The physician-patient privilege applies by its own terms to a “confidential 18 communication,” which is defined as a communication “made privately and not 19 intended for further disclosure except to other persons in furtherance of the purpose 20 of the communication.” Rule 11-504(A)(5), (B). “The purpose of the privilege is to 21 encourage a patient to make complete disclosures of [their] symptoms and 22 conditions to a physician without fear of publication.” State v. Roper, 1996-NMCA-  1 073, ¶ 6, 122 N.M. 126, 921 P.2d 322. This is because “accurate diagnosis and 2 appropriate medical treatment depend on a patient’s willingness to disclose 3 embarrassing, and even potentially incriminating, information.” State v. Lucero, 4 2023-NMCA-035, ¶ 22, 528 P.3d 762. Thus, the privilege applies to both civil and 5 criminal cases. Roper, 1996-NMCA-073, ¶ 6. 6 {19} Of course, the physician-patient privilege is not absolute. State v. Gonzales, 7 1996-NMCA-026, ¶ 14, 121 N.M. 421, 912 P.2d 297. Physicians are subject to 8 statutory reporting obligations under NMSA 1978, Section 32A-4-3(A) (2021, 9 amended 2025), and the patient can themselves waive the privilege. Rule 11-511 10 NMRA (stating the holder of a privilege may waive the privilege). Here, the State 11 argues that the privilege does not attach because of the reporting requirements of 12 Section 32A-4-3(A) (2021) or that Defendant waived the privilege by discussing her 13 medical condition with Dr. Vaskas in the presence of the two police officers and in 14 the presence of her mother. 15 {20} As a preliminary matter, the State does not meaningfully dispute that 16 Defendant presented herself to the emergency room as a patient seeking a diagnosis 17 and treatment from Dr. Vaskas and the ED staff for severe lower back pain and that 18 those facts support a finding that their communications advancing Defendant’s care 19 fall within the privilege. Instead, the State’s arguments focus on the effect of Section  1 32A-4-3(A) (2021) and whether Defendant waived her physician-patient privilege 2 when she responded to Dr. Vaskas’s question in the presence of third parties. We 3 address the State’s arguments in turn. 4 A. Section 32A-4-3(A) (2021) and the Physician-Patient Privilege 5 {21} The State contends Defendant has no physician-patient privilege as a matter 6 of law. Specifically, the State argues that the mandatory reporting requirement of 7 Section 32A-4-3(A) (2021) combined with the mandatory reporting exception for 8 the privilege under Rule 11-504(D)(4) “demonstrate that there was no privilege 9 here.” 10 {22} The State’s argument requires us to construe a statute and a court rule. “We 11 review issues of statutory interpretation de novo. Our primary goal when interpreting 12 statutes is to further legislative intent. Although the first guide to statutory 13 interpretation is the actual wording of the statute, we have recognized that where the 14 meaning of the facial language of a statute is in doubt, the plain language approach 15 may not lead to a correct interpretation of true legislative intent.” State v. Strauch, 16 2015-NMSC-009, ¶ 13, 345 P.3d 317 (internal quotation marks and citations 17 omitted). Further: “In interpreting statutory language as well as in much of the other 18 work courts are called on to perform, it is necessary to think thoughts and not words. 19 We have repeatedly cautioned that despite the beguiling simplicity of parsing the  1 words on the face of a statute, we must take care to avoid adoption of a construction 2 that would render the statute’s application absurd or unreasonable or lead to injustice 3 or contradiction.” Id. (internal quotation marks and citations omitted). “We therefore 4 must examine the plain language of the statute as well as the context in which it was 5 promulgated, including the history of the statute and the object and purpose the 6 Legislature sought to accomplish.” Id. ¶ 14 (internal quotation marks and citation 7 omitted). In addition, “this case requires us to interpret a provision of the New 8 Mexico Rules of Evidence, a question of law we also review de novo. When 9 construing our procedural rules, we use the same rules of construction applicable to 10 the interpretation of statutes. We begin by examining the plain language of the rule 11 as well as the context in which it was promulgated, including the history of the rule 12 and the object and purpose.” Kipnis v. Jusbasche, 2017-NMSC-006, ¶¶ 10-11, 388 13 P.3d 654 (brackets, internal quotation marks, and citations omitted). 14 {23} Our analysis commences with the mandatory reporting requirement of Section 15 32A-4-3(A) (2021). Under the facts of this case, the plain meaning of the statute 16 requires that every licensed physician “who knows or has a reasonable suspicion that 17 a child is an abused or a neglected child shall report the matter immediately to . . . a 1 local enforcement agency.” Id. (emphasis added).3 Upon the law enforcement 2 agency’s receipt of the report, the statute orders that the law enforcement agency 3 “shall take immediate steps to ensure prompt investigation of the report.” Section 4 32A-4-3(C) (2021). 4 5 {24} The State then refers us to Rule 11-504, which sets forth the physician-patient 6 privilege. Subsections (A), (B), and (C) of Rule 11-504 provide definitions, describe 3 In its entirety, Section 32A-4-3(A) (2021) provides: Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school employee; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to: (1) a local law enforcement agency; (2) the department; or (3) a tribal law enforcement or social services agency for any Indian child residing in Indian country. 4 In its entirety Section 32A-4-3(C) (2021) states: The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.  1 the scope of the physician-patient privilege, and state who may claim the privilege. 2 Subsection (D) of Rule 11-504 in turn is entitled “Exceptions,” and Subsection 3 (D)(4) in pertinent part states, “No privilege shall apply for confidential 4 communications concerning any material that a physician . . . is required by law to 5 report to a public employee or public agency” (emphasis added). Summarized, the 6 State’s argument is that the discovery of the deceased infant triggered a statutory 7 duty for Dr. Vaskas to report the death to law enforcement under Section 32A-4- 8 3(A) (2021), and therefore there is no physician-patient privilege under Rule 11- 9 504(D)(4). For the reasons which follow, we reject the State’s argument because it 10 is too broad. 11 {25} The district court ruled, “The hospital had an obligation to notify law 12 enforcement that a crime might have occurred but is not entitled to abrogate the 13 physician-patient privilege.” As we now explain, we agree with the district court. 14 We construe the statute and rule together so that they operate harmoniously. A 15 patient may prevent disclosure of private communications with a physician “made 16 for the purpose of diagnosis or treatment of the patient’s . . . condition,” Rule 11- 17 504(B), but no privilege applies to communications concerning “any material” the 18 physician “is required by law to report,” Rule 11-504(D)(4). Section 32A-4-3(A) 19 (2021) identifies “the matter” which a physician must report to law enforcement as  1 knowledge or a reasonable suspicion that a child is abused or neglected. Read 2 together, the statute and rule do not create a blanket exception to the physician- 3 patient privilege. Rather, the exception is narrow: the unprotected “material” under 4 Rule 11-504(D)(4) is limited to “the matter” the physician is required to report— 5 knowledge or reasonable suspicion of child abuse or neglect, § 32A-4-3(A) (2021). 6 See Strauch, 2015-NMSC-009, ¶ 27 (“‘What the [Ohio reporting] statute requires is 7 actually quite minimal: when [mandated reporters] . . . encounter suspected abuse or 8 neglect . . . , they must report it.’” (quoting State v. Clark, 2013-Ohio-4731, ¶ 85, 9 999 N.E.2d 592 (O’Connor, C.J., dissenting), rev’d, 576 U.S. 237 (2015))). The 10 purpose of the reporting requirement is to cause a law enforcement investigation to 11 be initiated. Once the report is made, the physician’s duty ends, and the law 12 enforcement duty to investigate immediately begins. Outside this narrow exception 13 to report, all confidential communications between the patient and the physician 14 remain privileged; they are not all automatically converted into unprivileged 15 communications. See People v. Covington, 19 P.3d 15, 22 (Colo. 2001) (en banc) 16 (stating that Colorado’s mandatory reporting statute waived the physician-patient 17 privilege only for the physician’s observations of bullet injuries themselves and not 18 for statements made by the patient to the physician).  1 {26} Accordingly, we hold that once law enforcement was notified that a deceased 2 infant had been found in a bathroom trashcan, Dr. Vaskas and the hospital personnel 3 satisfied their statutory reporting duty. Beyond those facts, Defendant’s physician- 4 patient privilege remained intact unless otherwise waived. We therefore turn to the 5 State’s remaining waiver arguments. 6 B. Waiver of the Physician-Patient Privilege 7 {27} Whether Defendant voluntarily waived her physician-patient privilege by 8 speaking to Dr. Vaskas in the presence of the police officers and her mother presents 9 an issue we review de novo. Allen, 2012-NMSC-001, ¶ 11 (stating that a trial court’s 10 construction of the law of privileges and waiver are questions of law subject to de 11 novo review). The State’s argument urges us to adopt a per se rule that whenever a 12 third person is present who is not necessary for care or treatment while a patient 13 communicates with their doctor, a waiver of confidentiality takes place, regardless 14 of who the person is or of the circumstances. We reject that argument as inconsistent 15 with caselaw and the policy interests underlying the physician-patient privilege. 16 {28} Rule 11-511 provides for the waiver of the physician-patient privilege as 17 follows: “A person who possesses a privilege against disclosure of a confidential 18 matter or communication waives the privilege if the person voluntarily discloses or 19 consents to disclosure of any significant part of the matter or communication.”  1 Fundamental to waiver under Rule 11-511 is the principle that the waiver must be 2 voluntary. 3 {29} Accordingly, our courts have required a finding that an alleged waiver was 4 voluntary in order to be valid. See Lucero, 2023-NMCA-035, ¶¶ 24-30. Our Court 5 of Appeals in Lucero grappled with the same question before us in this case: “Under 6 what circumstances does the presence of a third party, able to overhear a 7 communication between a physician and a patient, negate the privilege?” Id. ¶ 24. 8 The Lucero Court emphasized that any analysis of the physician-patient privilege 9 must be anchored in the interests served by the privilege—“protecting a patient’s 10 privacy and autonomy in relating highly sensitive, personal matters concerning their 11 physical or mental condition to a medical provider for purposes of diagnosis or 12 treatment.” See id. ¶¶ 28-30. Through the lens of patient autonomy, Lucero seems to 13 conclude that mere awareness that a third party is present is insufficient, on its own, 14 to waive the privilege. See id. Rather, Lucero also requires a showing of conduct 15 “sufficient to constitute voluntarily consent to or acquiescence in the disclosure of 16 [their] communications.” Id. ¶ 30 (emphasis added). Although Lucero does not 17 reference Rule 11-511, the opinion nonetheless imposes the voluntariness 18 requirement articulated in the rule.  1 {30} In Lucero, the defendant was injured in a single-vehicle rollover crash. 2023- 2 NMCA-035, ¶ 1. The defendant was being treated in an ambulance when a police 3 officer entered the ambulance and overheard the defendant tell an emergency 4 medical technician (EMT) that she had consumed alcohol. Id. When the defendant 5 was later charged with driving under the influence of intoxicating liquor or drugs, 6 she contended that Rule 11-504 prohibited a police officer from testifying to the 7 statements made to the EMT and filed a motion to suppress the statements. Lucero, 8 2023-NMCA-035, ¶¶ 3, 9. At the evidentiary hearing, the trial court focused on 9 whether the defendant knew the police officer was in the ambulance when she made 10 the disclosure to the EMT. Id. ¶¶ 9-10. The trial court determined that the defendant 11 should have known the police officer was present and therefore denied the motion 12 to suppress. Id. ¶ 12. However, the Court of Appeals reversed the trial court and 13 remanded the case to the trial court for factual determinations: whether the defendant 14 actually knew that the police officer was present in the ambulance when she made 15 her statement to the EMT and, if she did, whether her subsequent conduct was 16 sufficient to demonstrate that she voluntarily consented to, or acquiesced in the 17 disclosure of her statement to the police officer. Id. ¶¶ 29-30. 18 {31} In support of the requirement of voluntary conduct, Lucero relied upon In re 19 Termination of Parental Rights of Sherry C. & John M., 1991-NMCA-137, ¶ 25,  1 113 N.M. 201, 824 P.2d 341, “for the proposition that a patient who has actual 2 knowledge that the communication will be disclosed, and voluntarily participates in 3 the communication with that knowledge, has consented to or acquiesced in the 4 disclosure of their physician-patient communication.” Lucero, 2023-NMCA-035, ¶ 5 29 (emphasis added). In re Sherry C. adds yet another layer to voluntariness under 6 Rule 11-511 that was not explored in Lucero but is implied in its discussion of 7 voluntary consent: whether the patient had capacity to waive the privilege. In re 8 Sherry C., 1991-NMCA-137, ¶¶ 26-27. There, the Court of Appeals discussed the 9 foundational requirement of capacity when analyzing whether a mother’s cognitive 10 impairment “precluded a finding of waiver or consent.” Id. The Court of Appeals 11 was “reluctant to find that disclosure was voluntary” despite apparent actual 12 knowledge or consent on behalf of the mother or her attorneys that the treating 13 psychiatrists were reporting to the courts. Id. ¶¶ 26-28.5 Although the case did not, 14 ultimately, turn on incapacity, it nonetheless carries the basic principle that capacity 15 is required for voluntary waiver under Rule 11-511. 5 The Court of Appeals declined to conclude the mother lacked capacity as a matter of law, and it ultimately concluded that the mother failed to argue incapacity and, under the required plain error standard in that case, the record did not make incapacity apparent such that it called the result into question. In re Sherry C., 1991- NMCA-137, ¶ 29.  1 {32} Based on the foregoing principles, we conclude that for a valid waiver of the 2 physician-patient privilege to occur by the presence of a third party, at least the 3 following requirements must be satisfied 6: (1) the patient must have actual 4 knowledge of the presence of a third party not essential to the care, (2) the patient 5 must have the mental and physical capacity to waive the privilege, and (3) under the 6 totality of the circumstances, the waiver must be voluntary. Applying this test to the 7 facts before us, we conclude that Defendant did not voluntarily waive her physician- 8 patient privilege. 9 {33} Here, there is no question Defendant knew of the presence of both the officers 10 and her mother, so we focus on the second and third factors of this analysis. The 11 facts are disturbing in many respects. Defendant was a nineteen-year-old high school 12 student who went to the emergency room around midnight because she was suffering 13 from severe back pain which she rated at ten out of ten, with ten being the most 14 severe. Asked if she was pregnant, she said she was not, adding she was bleeding 15 and “on her period.” Within five minutes after being admitted to the emergency 16 room, Defendant was given pain medications and a powerful muscle relaxant, We recognize that a defendant may have additional defenses to a claim of 6 waiver of a physician-patient privilege based on the circumstances of the case, but as those defenses are not at issue in this matter, we do not discuss them here.  1 followed ten minutes later by IV fluids adding more of the same pain medication 2 and muscle relaxant, with morphine added to the mix. A pregnancy test was ordered, 3 and twenty-one minutes later, the result that Defendant was pregnant was reported 4 to Dr. Vaskas and Defendant’s nurse. For unexplained reasons, Defendant was never 5 told that, notwithstanding her vaginal bleeding, she was pregnant. 6 {34} The only medical response to the positive pregnancy test and knowledge that 7 Defendant was bleeding was to continue giving Defendant the IV fluids containing 8 the powerful muscle relaxant and morphine. The IV was later disconnected only 9 because Defendant said she urgently had to have a bowel movement—a possible 10 indication that Defendant’s cervix was fully dilated and she was moving into the 11 delivery phase. Defendant was in the locked bathroom for nineteen minutes, and she 12 gave birth to an infant she reported as not moving, crying, or breathing. She placed 13 the infant inside a trashcan in the bathroom and returned to her bed. 14 {35} Five minutes after she returned to her bed, Defendant’s profuse vaginal 15 bleeding prompted Dr. Vaskas to order a transvaginal ultrasound. Dr. Vaskas then 16 performed a pelvic exam, finding a “significant amount of blood,” “multiple 17 extremely large clots,” and Defendant’s “wide open cervix.” Dr. Vaskas did not 18 inform Defendant of these serious, significant findings or advise her of her positive 19 pregnancy test. When the deceased infant was discovered after the pelvic exam, Dr.  1 Vaskas recognized that Defendant could die from a postpartum hemorrhage. 2 However, Dr. Vaskas decided she was not going to discuss Defendant’s life- 3 threatening condition with her at that time. Her reason was that she wanted to wait 4 for law enforcement presence as witnesses. 5 {36} When the two officers arrived, the charge nurse told them Defendant 6 “wouldn’t tell us she was pregnant” and “killed the kid.” Dr. Vaskas joined the 7 conversation, telling the officers she had not yet told Defendant “what was going 8 on” or that Defendant needed an urgent medical transfer. Dr. Vaskas told the 9 officers, “So officers, so, first thing, I need to make sure the mother is stable. I don’t 10 know if she delivered a placenta, she is bleeding a lot.” Incredibly, Dr. Vaskas asked 11 if “one of [them wanted] to be part of the conversation” with Defendant and invited 12 the officers into Defendant’s room. Police presence in Defendant’s room at that time 13 was not required for any reason, medical or otherwise. The officers accepted Dr. 14 Vaskas’s invitation. 15 {37} It was just after 2:41 a.m. when the two uniformed, armed police officers 16 entered Defendant’s room with Dr. Vaskas and the charge nurse. The police officers 17 and charge nurse blocked the doorway while Dr. Vaskas went to Defendant’s 18 bedside and immediately confronted Defendant with the statement: “We discovered  1 a dead baby in the bathroom.” Defendant answered, “I’m sorry, it came out of me; I 2 didn’t know what to do.” 3 {38} We now proceed to determine whether the second and third requirements for 4 a valid waiver of the physician-patient privilege were satisfied. 5 {39} We first consider whether the Defendant had the mental and physical capacity 6 to waive the privilege. In this instance, there is a serious question whether Defendant 7 had the mental and physical capacity to waive the privilege. She was experiencing 8 excruciating back pain. Shortly after midnight, she received powerful pain 9 medication, a muscle relaxant, and morphine. Even after medical staff learned 10 Defendant was pregnant, they continued those medications and stopped only when 11 she said she urgently needed a bowel movement. Although the amount of morphine 12 she received is unknown, it was sufficient to cross the placental barrier: the autopsy 13 showed morphine in the infant’s heart blood. Defendant also lost a significant 14 amount of blood, expelled multiple large clots, and had a “wide open cervix.” Dr. 15 Vaskas concluded that she could die from a postpartum hemorrhage. Under all the 16 circumstances, giving birth alone in the locked bathroom was surely shocking, 17 frightening, and stressful to Defendant. This was Defendant’s condition when 18 Defendant’s doctor, the charge nurse, and two armed, uniformed police officers 19 confronted her at 2:41 a.m. We would ordinarily remand for an evidentiary hearing  1 on this question of capacity to waive. See Lucero, 2023-NMCA-035, ¶¶ 29-30. 2 However, we do not do so here because the facts unequivocally demonstrate that due 3 to Defendant’s medical condition, she lacked capacity to waive her physician-patient 4 privilege. 5 {40} And given the absence of capacity to waive and the circumstances 6 surrounding her disclosure, the third prong of the test also supports Defendant’s 7 claim that her physician-patient privilege remains intact. Indeed, the totality of the 8 circumstances indicate that any waiver by Defendant was not voluntary. In the hours 9 before, Defendant presented at the emergency room in excruciating pain, was 10 administered numerous medications, including narcotics, at unknown doses, she 11 gave birth, and she suffered ongoing life-threatening blood loss. Despite her 12 unresolved medical crisis, Dr. Vaskas, without authorization, ambushed Defendant, 13 bringing with her two-armed officers who stood in the doorway of her hospital room, 14 and disclosed her personal medical information to all persons in the room without 15 warning. Defendant was not given the opportunity to exclude anyone from the room 16 before Dr. Vaskas discussed her condition in the presence of others. Considering this 17 sudden unauthorized disclosure, coupled with Defendant’s compromised medical 18 condition, under the totality of the circumstances, we cannot conclude that 19 Defendant’s waiver of her physician-patient privilege was voluntary.  1 III. CONCLUSION 2 {41} We affirm the order of the district court suppressing all evidence obtained by 3 the State in violation of the physician-patient privilege. 4 {42} IT IS SO ORDERED. 5 6 MICHAEL E. VIGIL, Justice 7 WE CONCUR: 8 9