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Hodges v. Oak Tree Realtors, Inc.

Supreme Court of Oregon, En Banc

September 13, 2018

Janet HODGES, Plaintiff,
v.
OAK TREE REALTORS, INC., et al., Defendants. Emily HODGES, an Oregon resident, Plaintiff-Relator,
v.
OAK TREE REALTORS, INC., an Oregon Corporation; Robert C. Niccolls; Louis F. Mahar; Robert C. Niccolls and Mary Ruth Niccolls, in their capacity as Trustees of the Niccolls Family Trust; Mary Ruth Niccolls; and Kathryn E. Mahar, Defendants-Adverse Parties. Sadie HODGES, Plaintiff,
v.
OAK TREE REALTORS, INC., et al., Defendants. Susan Hager HAMILTON, Plaintiff,
v.
OAK TREE REALTORS, INC., et al., Defendants. Clara J. DALEY, Plaintiff,
v.
OAK TREE REALTORS, INC., et al., Defendants.

          Argued and submitted June 13, 2018.

          Jackson County Circuit Court 16CV31078, 16CV31245, 16CV31677, 16CV31680, 16CV31681

         [363 Or. 602] Original proceeding in mandamus.[*]

          Travis Eiva, Eugene, argued the cause and fled the brief for relator.

          Alicia Marie Wilson, Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C., Medford, argued the cause and fled the brief for adverse parties. Also on the brief was Tracy M. McGovern.

          Lindsey H. Hughes, Keating Jones Hughes, P.C., Portland, fled the brief for amicus curiae Oregon Association of Defense Counsel.

          Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter P.C., Portland, fled the brief for amicus curiae Oregon Trial Lawyers Association.

          [363 Or. 603] Case Summary: Defendants deposed plaintiff in a personal injury action and sought information about plaintiff's injury-related communications with her treating physicians. Plaintiff's counsel instructed her not to answer defendants' questions, asserting the physician-patient privilege. Defendants moved for an order compelling plaintiff to answer the questions because the communications fell within the limitation in OEC 504-1(4)(b) on the physician-patient privilege. The trial court granted the motion and, after this court issued an alternative writ of mandamus, declined to change its ruling. Held: The limitation in OEC 504-1(4)(b) applies only when the physical examination occurs under the authority provided in ORCP 44. Here, the limitation on the physician-patient privilege does not apply because defendants sought information about physical examinations during the course of plaintiff's treatment that were not court-ordered under ORCP 44.

         A peremptory writ of mandamus shall issue.

          [363 Or. 604] NAKAMOTO, J.

         The issue in this mandamus proceeding is whether the limitation in OEC 504-l(4)(b) on the physician-patient privilege allows a defendant to discover plaintiff's communications with treating physicians regarding physical injuries for which she seeks damages. Plaintiff-relator Emily Hodges contends that the trial court erroneously ordered her to answer deposition questions about privileged communications and seeks a peremptory writ of mandamus ordering the trial court to vacate its order. Defendants-adverse parties contend that, because those communications were "made in the course of a physical examination performed under ORCP 44," OEC 504-1(4)(b), plaintiff has no physician-patient privilege to assert. We hold that the limitation in OEC 504-1(4)(b) applies only when the physical examination occurs under the authority provided in ORCP 44 and that, on this record, the limitation on the physician-patient privilege does not apply. Accordingly, we grant plaintiff's petition, and a peremptory writ of mandamus shall issue.

         I. FACTS AND PROCEDURAL HISTORY

         The facts are procedural and undisputed. Plaintiff alleges that she was injured when the apartment balcony on which she and others were standing collapsed.[1] Plaintiff alleges that she suffered injuries to her spine, feet, right leg and hip, and right shoulder. She seeks $325, 000 in economic damages for past and future medical expenses and impaired earning capacity. She also seeks $1, 000, 000 in noneconomic damages.

         Defendants-Oak Tree Realtors, Inc., trustees of a family trust, and several individuals-deposed plaintiff and sought information about plaintiff's discussions with her treating medical providers relating to her injuries. Plaintiff's lawyer instructed her not to answer those questions, asserting the physician-patient privilege and that her answers would disclose communications she had had with her treating doctor. The following is one such exchange:

[363 Or. 605] "Q: And how about your right hip, what injury did you sustain to your right hip?
"A: I broke it.
“* * * *
"Q: Is there a bone that you believe you broke in your ...

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