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
In a 2–1 decision, an Illinois appellate court ruled that, in a medical-malpractice action, a healthcare LLC’s lawyer may hold privileged, ex parte communications with a non-party LLC member who also served as the plaintiff’s treating physician.
The court imposed limitations on the discussion, however, disallowing privileged communications prior to the non-party physician’s damages deposition but allowing privileged communications before his liability deposition. McChristian v. Brink, 2016 IL App 152674 (Ill. App. Ct. Sept. 30, 2016), corrected opinion issued December 22, 2016. Read the decision here.
While not a complete victory for medical-malpractice defense lawyers, they must feel better than their Washington-state counterparts. In 2014, the Washington Supreme Court, in Youngs v. Peacehealth, 316 P.3d 1035 (Wash. 2014), held that the State’s common-law prohibition of defense attorneys’ ex parte communications with a plaintiff-patient’s non-party physicians supersedes the corporation’s attorney–client privilege with its employed physicians.
Regarding Youngs, check out my blog post or my article in Medical Liability Monitor about the decision. More…
In a case of first impression, the South Dakota Supreme Court, in a 3–2 decision, ruled that the state’s physician–patient privilege does not protect third-parties’ medical records from disclosure so long as the parties redact all patient-identifying information. The majority cited to several extrajurisdictional decisions on the issue and aligned itself with the purported “unanimous view of other courts … that anonymous, nonidentifying medical information is not privileged per se.” Wipf v. Altstiel, 2016 WL 7411290 (S.D. Dec. 21, 2016). You may read the decision, which also serves as a helpful research tool, here.
Discovery of Third-Party Patients’ Medical Records?
Dr. Terry Alstiel performed a laparoscopic hernia repair on Steven Wipf. Wipf had post-operative complications and later filed suit claiming that Alstiel perforated his bowel during the hernia surgery. Dr. Alstiel’s expert testified that he would need to see “an unacceptably high complication rate in similar procedures with different patients” before he would agree that Alstiel breached the standard of care. More…