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

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