Oregon’s Sword & Shield Reply

In a personal-injury case, the plaintiff generally waives any privilege protecting communications with her health-care providers regarding the injuries for which she seeks damages. Privilege Waiver 101, right?

Not in Oregon. The state’s supreme court ruled that the physician–patient privilege precludes discovery of the plaintiff’s communications with her physician even where her medical treatment is at issue.  The court’s opinion is so draconian that it prohibits a defense lawyer from asking deposition questions as routine as “what injury did you receive?”

The court’s decision offered a potential—but unanswered—waiver argument (discussed below), but otherwise allows Oregon plaintiffs to use the physician–patient privilege as a sword and a shield in personal-injury cases. Hodges v. Oak Tree Realtors, Inc., 426 P.3d 82 (Ore. 2018).  You may read the decision here.

Oregon’s Physician–Patient Privilege

Oregon Evid. Code 40.325, or Rule 504-1, provides a patient, in a civil action, a privilege to refuse to disclose confidential communications with her physician.  The rule contains a “nonexclusive list” (remember this phrase) of three exceptions for communications made to a physician during a:

(1) commitment-related examination (Rule 504-1(4)(c))

(2) court-ordered physical examination (Rule 504-1(4)(a); and

(3) court-ordered examination “performed under” Ore. R. Civ. P. 44 (Rule 504-1(4)(b)).

Do the last two exceptions sound redundant to you?

Issues and Ruling

Janet Hodges suffered multiple injuries when the apartment balcony on which she was standing collapsed.  In a suit seeking compensation for her injuries, the defense lawyer asked these routine questions:

Q.        What injury did you sustain to your right hip?

Q.        Is there a bone that you believe you broke in your right hip?

Standard, non-controversial questions, correct? Plaintiff’s counsel objected, claiming that the answers would reveal communications with her physician which the physician–patient privilege precluded.

The defendant argued that the privilege-exception for ORCP 44 examinations applied. This was a difficult argument because the plaintiff’s physician examined her in the ordinary course of medical diagnosis and treatment and not under a court-ordered independent medical examination under ORCP 44 physical examination.

The defendant argued that a ORCP 44 examination was not so limited because a different exception (Rule 504-1(4)(a)) applied to court-ordered examinations. In other words, “the legislature would not add a duplicative or redundant exclusion for court-ordered examinations.” But the Court said the general exception (Rule 504-1(4)(b) was a “catch-all provision that would rarely apply to civil cases.”  It viewed the ORCP 44 exception (Rule 504-1(4)(c)) “as a point of specificity rather than as a redundancy.”

What about At-Issue Waiver?

Great question.  The court noted that Oregon’s psychotherapist–patient privilege, Rule 504(4)(b), contains an express at-issue waiver provision, but that the physician–patient privilege does not.  This distinction persuaded the court to reject at-issue waiver for the physician-patient privilege, thus revealing that the privilege exceptions are quite limited.

The court did not discuss, but it is worth mentioning here, that Rule 511 provides that at-issue waiver “does not occur with the mere commencement of litigation.”  At-issue waiver only occurs when the plaintiff’s physician provides evidentiary (as opposed to discovery) testimony.  Barrier v. Beaman, 390 P.3d 1908 (Ore .2017).

At-issue waiver is apparently a dead issue during discovery.

“Nonexclusive List”?

The defendant, with assistance from the Oregon Association of Defense Counsel’s well-written amicus brief, available here, also argued that the court should create an exception for the “routine practice of a defendant deposing a plaintiff about her injuries, treatment, and communications with her providers.”  The court declined, telling defense counsel to take those arguments to the legislature.

Perhaps “nonexclusive” means “exclusive” in Oregon.

Foreshadowing?

The court identified an argument that the defendant failed to make, foreshadowing a potentially successful privilege-waiver argument.  The plaintiff produced her medical records to the defendant which, of course, contain information about her medical examination.  The court would not say whether this production waived the privilege, so we will have to wait for a future defendant to make this argument.

In sum, unless the production of medical records waives the privilege, an Oregon plaintiff–unlike in most other states–may use her physician’s testimony about injuries at trial (the sword), but effectively withhold from discovery the plaintiff-patient’s communications with her physician—even for simple factual questions about her injuries (the shield).

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