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Oregon Supreme Court Addresses Physician-Patient Privilege

By: Jason Gardner

Many of Oregon’s discovery rules surprise out-of-state litigators and clients. The most obvious of these is the prohibition of expert discovery. Similarly, the lack of interrogatories enhances Oregon’s reputation as a “trial by ambush” state. While fact-pleading can be a mitigating factor, a well-pled complaint is no substitute for complete discovery.

An additional oddity for Oregon is the continuation of physician-patient privilege through discovery even when plaintiff’s physical condition is at issue. One of the first questions an out-of-state client asks when a plaintiff’s physical condition is at issue is “what will the doctor say in his or her deposition?” A lengthy explanation of Oregon’s unique discovery and evidentiary rules follows, usually with some level of dismay from the client recognizing the distinct advantage this frequently extends to plaintiffs. From a defense perspective, access to treating physicians can be a powerful tool to assess causation and damages. Prior to perpetuation testimony or trial, defendants usually do not know if a treating physician will be a patient advocate or impassionate professional. Similarly, plaintiffs can prevent pre-trial access to treating physicians a defendant may suspect are skeptical of plaintiff’s condition.

The physician-patient privilege is set forth in OEC 504-1, which provides that a patient may assert privilege with regard to “confidential communications in a civil action, suit or proceeding.” The privilege covers confidential communications “made for the purposes of diagnosis or treatment of the patient’s physical condition.” OEC 511 states the privilege is waived if the patient “voluntarily discloses” any significant part of the communication. The rule indicates voluntary disclosure does not occur due to the mere commencement of litigation or taking of perpetuation deposition (until the perpetuation is formally offered at trial). But, voluntary disclosure does occur upon “the holder’s offering of any person as a witness who testifies as to the condition.” The term “offering” is not defined by the rule.

Over the years, defendants have sought to establish waiver of the privilege in a variety of circumstances. For instance, in medical malpractice actions, once the plaintiff deposes a defendant treating physician, the plaintiff has waived the privilege for all other related treating physicians, regardless of whether or not they are parties. Grimm v. Ashmanskas, 298 Or 206 (1984). In Grimm, the court determined that by deposing the treating physician, plaintiff had “offered” that person as a witness, thus waiving the privilege. It has remained an open question whether or not plaintiff’s own testimony in a discovery deposition constitutes waiver.

Recently, the Oregon Supreme Court put that question to rest, re-examining the term “offering” as utilized in OEC 511. In Barrier v. Beaman, 361 Or 223 (2017), the plaintiff sued his orthopedic surgeon, alleging medical negligence related to a surgery the defendant performed. Defendant’s counsel deposed plaintiff and asked him questions regarding his care and treatment by 17 other health care providers plaintiff had seen. Plaintiff answered the questions without objection from his counsel. Plaintiff had not deposed the defendant physician or otherwise waived the privilege.

Following the deposition, defendant sought to depose plaintiff’s other treating providers, arguing that plaintiff waived the privilege through his own testimony regarding treatment. The trial court granted defendant’s motion to depose the other treating physicians. Plaintiff then sought a writ of mandamus, which the Supreme Court issued.

Defendant argued plaintiff had “offered” himself as a witness concerning his physical condition. In reviewing prior case law and legislative history, the court determined that plaintiff did not waive the privilege by testifying at his deposition. The court opined that plaintiff did not voluntarily appear to testify; he would have been compelled to do so by defendant. Waiver requires voluntary disclosure in the form of offering a witness.

Defendant also argued that plaintiff could have refused to answer the questions or otherwise object to the questions. However, the court rejected that argument on the same grounds (that plaintiff was not volunteering his testimony). Finally, the court reasoned it would be somewhat inconsistent with the legislative purpose to allow an opposing party to force the other into waiver. In reaching its decision, the court cited to the dictum in Grimm, as follows:

“We do not believe the legislature intended waiver to occur when a plaintiff in a personal injury or malpractice case is required by the opponent to submit to a pretrial discovery deposition, because in that situation the holder of the privilege is not voluntarily offering his or her confidential communications or personal condition to the public.”

With this decision, waiver of the physician-patient privilege remains squarely in the domain of the patient. Defendants may continue to look for waiver opportunities unique to individual cases, but absent a legislative change, the physician-patient privilege remains fairly impenetrable during discovery.