By Kevin Clonts
The Oregon Supreme Court has re-affirmed and clarified Oregon’s unique physician-patient privilege – even after a plaintiff has filed a personal injury lawsuit, any and all communications between the plaintiff and his or her doctor remain shielded from discovery. Therefore, Oregon’s rule continues to run counter to most states, which generally allow discovery into patient-physician communications after the filing of a personal injury lawsuit.
Hodges v. Oak Tree Realtors, Inc., 363 Or 601 (2018) involved allegations of personal injuries sustained from the collapse of a balcony, and plaintiff alleged injuries to her spine, feet, right leg and hip, and right shoulder. At plaintiff’s deposition, defendants inquired into the opinions conveyed by plaintiff’s physician, and plaintiff’s counsel invoked the physician-patient privilege and instructed her not to answer. Defendants argued that an exception to the physician-patient privilege applied, and the trial court agreed, ordering plaintiff to respond to the deposition questions. Plaintiff filed for mandamus, and the Oregon Supreme Court directed the trial court to reverse its order.
Oregon has an exception to the physician-patient privilege for communications made during an independent medical exanimation (IME), and the issue before the court was whether this exception applies to any medical examinations pertaining to the at-issue injuries or body parts. The court held that it did not, and the exception only applies to an IME performed under Oregon Rule of Civil Procedure 44.
In reaching its conclusion, the court noted that another statute provides for an exception to the psychotherapist-patient privilege for plaintiff communications with his or her psychotherapist “as to communications relevant to an issue of the mental or emotional condition of the patient * * * [i]n any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense[.]” However, there was no corollary statutory exception to the physician-patient privilege in bodily injury claims. Therefore, the court reasoned, the legislature decided to apply a broad exception to the psychotherapist-patient privilege, which courts are not free to extrapolate out to apply to the physician-patient privilege. Though a broader exception might “be more practical and could reduce litigation costs, those policy arguments would be better made to the legislature.”
In sum, even after a plaintiff has filed suit alleging personal injuries, defendants may not inquire into plaintiff’s communications with a physician or depose that physician. Even so, defendants are entitled to discovery of the pertinent medical records.
The opinion can be found here: https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/6846/rec/1.