Bill BARRIER and Lee Ann Barrier, as individuals and as husband and wife, Plaintiffs-Relators,
DOUGLAS BEAMAN MD, PC; Douglas Beaman, MD; and Summit Orthopedics, LLP, Defendants-Adverse Parties.
and submitted January 13, 2017
proceeding in mandamus CC 140404994. [*]
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.
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.
H. Dahab, Stoll Stoll Berne Lokting & Shlachter PC,
Portland, fled the brief on behalf of amicus curiae Oregon
Trial Lawyers Association.
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
writ to issue.
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.
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."
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.
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.
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.
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.They further argue that concerns of
fairness require this court to dismiss the writ. As explained
below, we conclude that ...