Barrier v. Douglas Beaman MD, PC
361 Or. 223
| Or. | 2017Background
- Plaintiff sued for medical negligence after foot surgery and related injuries and produced medical records per ORCP 44 C.
- Defendants noticed and took plaintiff's discovery deposition; plaintiff answered questions about treatment by 17 providers and made no privilege objections.
- Defendants sought depositions of those 17 treating providers; plaintiff refused to waive the physician–patient privilege.
- Trial court granted defendants’ motion to allow the providers’ depositions; plaintiff sought mandamus relief from the Oregon Supreme Court.
- Central statutory provision: OEC 511 (waiver by voluntary disclosure) and OEC 504-1(2) (physician–patient privilege).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether answering questions in a discovery deposition waives the physician–patient privilege under OEC 511 | Barrier: No waiver — he did not "offer" himself as a witness; answering a noticed deposition is not voluntary offering | Beaman: Barrier voluntarily disclosed privileged communications by answering without objection, so privilege waived and providers may be deposed | Court: No waiver — OEC 511 requires the holder to "offer" a person as a witness; answering an adversary's noticed discovery deposition is not offering and does not waive the privilege |
Key Cases Cited
- State ex rel Grimm v. Ashmanskas, 298 Or. 206 (1984) (plaintiff deposing defendant physician can waive privilege as to same condition)
- State ex rel Calley v. Olsen, 271 Or. 369 (1974) (holding that offering a treating physician as a witness waives privilege under predecessor rule)
- State v. Langley, 314 Or. 247 (1992) (interpreting scope of waiver and limiting waiver to communications on the same subject when a significant part is disclosed)
- State ex rel OHSU v. Haas, 325 Or. 492 (1997) (discussing waiver principles for statutory privileges)
- Nielson v. Bryson, 257 Or. 179 (1969) (noting evidentiary privileges are statutory)
- State v. Klein, 352 Or. 302 (2012) (statutory context for interpreting Evidence Code terms)
- State v. Ofodrinwa, 353 Or. 507 (2013) (use of statute context in interpretation)
- Halperin v. Pitts, 352 Or. 482 (2012) (persuasive value of prior constructions even if dictum)
- Moro v. State of Oregon, 354 Or. 657 (2013) (negative implication in statutory interpretation)