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Barrier v. Beaman

Supreme Court of Oregon, En Banc

March 9, 2017

Bill BARRIER and Lee Ann Barrier, as individuals and as husband and wife, Plaintiffs-Relators,
v.
DOUGLAS BEAMAN MD, PC; Douglas Beaman, MD; and Summit Orthopedics, LLP, Defendants-Adverse Parties.

          Argued and submitted January 13, 2017

         Original proceeding in mandamus CC 140404994. [*]

          W. Eugene Hallman, Hallman Law Offce, Pendleton, argued the cause and fled the briefs for plaintiffs/relators on review. Also on the brief were Marc R. Bocci and Wm. Keith Dozier.

          Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and fled the brief for defendants/adverse parties. Also on the brief were Michael J. Wiswall and Donna L. Lee.

          Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter PC, Portland, fled the brief on behalf of amicus curiae Oregon Trial Lawyers Association.

         Case Summary: Defendants in a medical malpractice action deposed plaintiff, who answered questions concerning his care by other medical providers without objection or asserting the physician-patient privilege. Defendants then sought to depose those medical providers, but plaintiff refused to waive the privilege. Defendants moved to allow the depositions, the trial court issued an order granting defendants' motion, plaintiff obtained an alternative writ of mandamus, and the trial court declined to vacate its order. Plaintiff sought a peremptory writ of mandamus directing the circuit court to vacate its order. Held: Plaintiff did not waive the physician-patient privilege by answering questions at his own discovery deposition because he did not offer himself as a witness.

         Peremptory writ to issue.

          BREWER, J.

         This is an original mandamus proceeding, arising from a medical negligence action in which plaintiff, who is the relator in this case, seeks damages for physical injuries. The issue is whether plaintiff, who-without objection by his counsel-answered questions in a discovery deposition about the treatment of his physical condition by health care providers, thereby waived his physician-patient privilege under OEC 511, so as to allow pretrial discovery depositions of those health care providers. This court allowed plaintiff's petition for an alternative writ of mandamus, in which he challenged a circuit court order that allowed the providers' depositions. We now conclude that, by answering questions about his treatment at his discovery deposition, plaintiff did not "offer"-and thereby voluntarily disclose-that testimony so as to waive his privilege. Accordingly, we issue a peremptory writ of mandamus directing the circuit court to vacate its order allowing the depositions.

         BACKGROUND

         Plaintiff brought the underlying medical negligence action against defendants, seeking damages for physical injuries suffered as the result of a foot surgery that, as alleged in his complaint, left him with "severe and permanent injury to his right foot and ankle leaving him unable to use his foot and suffering constant pain and numbness." Plaintiff further alleged that he "has required follow up care and surgeries and suffered additional injuries to his head and back as a result of a fall related to his disability including a concussion and herniated discs which will also require future care and cause additional disability."

         Defendants served plaintiff with a request for production of plaintiffs health care records, including records from his current primary care physician; records from "any podiatrist, orthopedist, orthopedic surgeon, neurologist, or neurosurgeon who treated him at any time"; records from any hospital he has visited within the past ten years; and records from labs, emergency medical transports, therapists, pharmacies, and more. As required by ORCP 44 C, plaintiff provided the records that defendants requested.[1]

         After plaintiff produced his health care records, defendants sought to take plaintiff's deposition and served his counsel with a formal notice of deposition. Plaintiff appeared at the deposition, during which he answered questions concerning the details of his care and treatment with 17 health care providers whose records plaintiff had produced. Plaintiff did not object to the questions or assert the physician-patient privilege at any point during his deposition.

         Plaintiff has not taken the deposition of defendant Beaman or any other health care provider. However, after plaintiffs deposition, defendants sought to depose the 17 health care providers who had treated plaintiff and whose records had been produced. Plaintiff refused to waive the physician-patient privilege with respect to those depositions. Defendants then filed a motion to allow the depositions. The circuit court issued an order granting defendants' motion. Thereafter, plaintiff sought an alternative writ of mandamus from this court, directing the circuit court to vacate its order allowing the depositions and deny the motion or show cause why it should not do so. This court issued an alternative writ of mandamus. After the circuit court declined to vacate its order, the matter returned to this court on plaintiff's request for a peremptory writ.

         Defendants do not dispute that plaintiff is the holder of a physician-patient privilege under OEC 504-1(2), which provides that "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action * * * made for the purposes of diagnosis or treatment of the patient's physical condition." Instead, defendants contend that plaintiff has waived that privilege by voluntarily disclosing in his discovery deposition communications and other matters relating to the treatment of his physical condition as provided in OEC 511.[2]They further argue that concerns of fairness require this court to dismiss the writ. As explained below, we conclude that ...


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