Blog

Oregon's Physician-Patient Privilege

Posted by Bradley Thayer | Dec 16, 2019 | 0 Comments

Bjt.2.or.phys.pat.priv

We've written a blog prior entitled: “What if There's Sensitive Stuff in my Medical Records?” –on some level the answer depends on whether your personal injury claim is filed in Washington or Oregon.

As we stated in the prior blog post linked to and referenced above, the general rule (at least, in Washington) is: “For cases that have reached litigation, i.e. a lawsuit has been filed, the basic default position of the courts is that the plaintiff's bodily and/or mental condition is “at issue”, and the defendant has the right to obtain a certain amount of medical record/history going back some period of time before an injury, up to the present.”

In Oregon, however, there is legal authority which, at the least, give plaintiffs the ability to try and limit the records they provide to the opposing side in litigation to same or similar conditions as those that are at issue in the lawsuit.

The legal authority referred to above is mainly the physician-patient privilege outlined in ORS 40.235, which reads in part:

(1) As used in this section, unless the context requires otherwise:

(a) “Confidential communication” means a communication not intended to be disclosed to third persons …

*  *  *

(b) “Patient” means a person who consults or is examined or interviewed by a physician.

(c)(A) “Physician” means a person authorized and licensed or certified to practice medicine… or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a physical condition.

*  *  *

(2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient's physical condition, among the patient, the patient's physician or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

*  *  *

(4) The following is a nonexclusive list of limits on the privilege granted by this section…

(b) There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient:

(A) In any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense

*  *  *

The definition of “confidential communication” in paragraph (1)(a) includes a physician's records.  See Nielson v. Bryson, 257 Or. 179, 477 P.2d 714 (1970). 

Thus, medical records not regarding same or similar conditions to those that are at issue in the lawsuit (because a plaintiff relies upon those conditions as an element of his or her claim) are privileged.  So, if there is sensitive information in a medical provider's chart note relating to a completely different condition than the one at issue, there's a good chance that medical record need not be produced to the other side. 

This can be a great tool, in Oregon cases, to try and limit the feeling that litigation is allowing the other side to invade a plaintiff's privacy to an unreasonable degree.

About the Author

Bradley Thayer

Brad Thayer is a partner at the Schauermann Thayer firm. Brad is licensed in both Oregon and Washington. He has been practicing law since 2015. He was presented the 2018 Rising Star Award by the Clark County Bar Association. Brad's practice focuses on automobile collision, motorcycle, bicycle, pedestrian injury, dog bite, and myriad other types of injury and insurance cases. During his free time, Brad enjoys following the Portland Trail Blazers, playing basketball, going to concerts, and playing the drums. He especially enjoys hiking in the Columbia River Gorge and exploring other Northwest wonders.

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Comments have been disabled.

Experienced Attorneys

The attorneys at Schauermann Thayer handle personal injury, wrongful death, and insurance actions for clients throughout the Southwest Washington and Portland, Oregon area.

How Can We Help You?

Request a free initial consultation today.