Oregon Case Update: Oregon Supreme Court Restricts the Scope of Discoverable Communications Between Plaintiffs and Treating Physicians

Oregon Case Update: Oregon Supreme Court Restricts the Scope of Discoverable Communications Between Plaintiffs and Treating Physicians 

From the Desk of Ryan McLellan: Communications between plaintiffs and their treating physicians have long been discoverable in Oregon depositions after the plaintiff has put their injuries at issue. Does the physician-patient privilege in Oregon’s evidence code now allow plaintiffs to refuse to answer questions about such communications? Read on to find out.

Claims Pointer: In this personal injury lawsuit, a woman was injured when she fell through an allegedly faulty deck at an apartment. After filing her lawsuit against the apartment, defense counsel took her deposition and sought to learn what she told her treating physician about her injuries. Plaintiff’s attorney objected to the question as constituting a violation of Oregon’s physician-patient privilege. After the defense obtained a ruling from a trial court compelling plaintiff to answer the questions, plaintiff sought mandamus review by the Oregon Supreme Court. The Supreme Court reversed the trial court, finding that plaintiff’s communications with her treating physician were protected. This case has changed the longstanding practice of defense counsel in Oregon. It will now be more challenging for defense counsel and claims professionals to get all of the information they need to fully evaluate their claims.

Hodges v. Oak Tree Realtors, 363 Or 601 (September 13, 2018).

Rule 504-1 of Oregon’s Evidence Code establishes a privilege commonly known as the physician-patient privilege. In a civil lawsuit, a patient has the privilege to refuse to disclose any communications with his or her physician “made for the purposes of diagnosis or treatment of the patient’s physical condition…” The privilege is subject to a non-exclusive list of three exceptions. Importantly in this matter, the privilege does not extend to “communications made in the course of a...

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