Barrier v. Douglas Beaman MD, PC , 361 Or. 223 ( 2017 )

No. 16 March 9, 2017 223
IN THE SUPREME COURT OF THE
STATE OF OREGON
Bill BARRIER
and Lee Ann Barrier,
as individuals and as husband and wife,
Plaintiffs-Relators,
v.
DOUGLAS BEAMAN MD, PC;
Douglas Beaman, MD;
and Summit Orthopedics, LLP,
Defendants-Adverse Parties.
(CC 140404994; SC S063974)
En Banc
Original proceeding in mandamus. *
Argued and submitted January 13, 2017.
W. Eugene Hallman, Hallman Law Office, Pendleton,
argued the cause and filed the briefs for plaintiffs/relators
on review. Also on the brief were Marc R. Bocci and Wm.
Keith Dozier.
Janet M. Schroer, Hart Wagner LLP, Portland, argued
the cause and filed the brief for defendants/adverse parties.
Also on the brief were Michael J. Wiswall and Donna L. Lee.
Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter
PC, Portland, filed the brief on behalf of amicus curiae
Oregon Trial Lawyers Association.
BREWER, J.
Peremptory writ to issue.
______________
*  On petition for a writ of mandamus from an order of Multnomah County
Circuit Court, Youlee Yim You, Judge, dated February 25, 2016.
224 Barrier v. Beaman
Case Summary: Defendants in a medical malpractice action deposed plain-
tiff, 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 priv-
ilege. 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 discov-
ery deposition because he did not offer himself as a witness.
Peremptory writ to issue.
Cite as 361 Or 223 (2017) 225
BREWER, J.
This is 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 testi-
mony 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.
BACKGROUND
Plaintiff brought the underlying medical negli-
gence action against defendants, seeking damages for phys-
ical injuries suffered as the result of a foot surgery that, as
alleged in his complaint, left him with “severe and perma-
nent 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 includ-
ing a concussion and herniated discs which will also require
future care and cause additional disability.”
Defendants served plaintiff with a request for
production of plaintiff’s health care records, including
records from his current primary care physician; records
from “any podiatrist, orthopedist, orthopedic surgeon, neu-
rologist, 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
226 Barrier v. Beaman
by ORCP 44 C, plaintiff provided the records that defen-
dants requested.1
After 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.
Plaintiff has not taken the deposition of defendant
Beaman or any other health care provider. However, after
plaintiff’s 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 manda-
mus 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 alterna-
tive writ of mandamus. After the circuit court declined to
vacate its order, the matter returned to this court on plain-
tiff’s request for a peremptory writ.
Defendants 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
1
ORCP 44 C provides:
“In a civil action where a claim is made for damages for injuries to the
party or to a person in the custody or under the legal control of a party, upon
the request of the party against whom the claim is pending, the claimant
shall deliver to the requesting party a copy of all written reports and exist-
ing notations of any examinations relating to injuries for which recovery is
sought unless the claimant shows inability to comply.”
Cite as 361 Or 223 (2017) 227
privilege by voluntarily disclosing in his discovery depo-
sition communications and other matters relating to the
treatment of his physical condition as provided in OEC 511.2
They further argue that concerns of fairness require this
court to dismiss the writ. As explained below, we conclude
that defendants’ arguments are misplaced, and, we there-
fore issue a peremptory writ directing the circuit court to
vacate its order allowing the depositions of plaintiff’s health
care providers.
ANALYSIS
Although it is a “creature of statute,” Nielson v.
Bryson, 257 Or 179, 182, 477 P2d 714 (1970), Oregon’s
physician-patient privilege dates back to the time of state-
hood. See General Laws of Oregon, Civ Code, ch VIII, title
III, § 702(4), p 325 (Deady, 1845 - 1864). As noted, in its
current form, the privilege allows a patient in a civil case
“to refuse to disclose and to prevent any other person from
disclosing confidential communications * * * made for the
purposes of diagnosis or treatment of the patient’s physical
condition.” OEC 504-1(2).
Like other evidentiary privileges, the physician-
patient privilege may be waived. OEC 511 provides:
“A person upon whom ORS 40.225 to 40.295 confer a
privilege against disclosure of the confidential matter or
communication waives the privilege if the person * * * vol-
untarily discloses or consents to disclosure of any signif-
icant part of the matter or communication. This section
does not apply if the disclosure is itself a privileged commu-
nication. Voluntary disclosure does not occur with the mere
commencement of litigation or, in the case of a deposition
taken for the purpose of perpetuating testimony, until the
offering of the deposition as evidence. * * * Voluntary dis-
closure does occur, as to psychotherapists in the case of a
mental or emotional condition and physicians in the case of
a physical condition upon the holder’s offering of any person
as a witness who testifies as to the condition.”
Under that provision, the “voluntary disclosure” of a sig-
nificant part of a privileged communication or matter is
2
The text of that provision is set out below.
228 Barrier v. Beaman
necessary to effect a waiver of the privilege. State ex rel
OHSU v. Haas, 325 Or 492, 498, 942 P2d 261 (1997) (so stat-
ing). As the commentary to OEC 511 indicates, voluntary
disclosure “can occur in any situation, within or without the
context of a lawsuit.” See OEC 511 Commentary (1981).
Within the context of a lawsuit, however, the legis-
lature has provided guidance with respect to what consti-
tutes the voluntary disclosure of communications or matters
that are subject to a privilege. With respect to any privi-
leged communication or matter, “voluntary disclosure” does
not occur by the “mere commencement of litigation” or in
a “deposition taken for the purpose of perpetuating testi-
mony.” OEC 511. In particular, communications and other
matters that are subject to the physician-patient privilege
may be “voluntarily disclose[d]”—and the privilege thereby
waived—by specified conduct within the context of a lawsuit.
Specifically with respect to the physician-patient privilege,
“voluntary disclosure” of communications or other matters
that are subject to the privilege occurs “upon the holder’s
offering of any person as a witness who testifies as to the
condition.” Id. (emphasis added). Because the rule expressly
ties the voluntary disclosure of communications and other
matters that are subject to the physician-patient privilege to
the “offering” of a person as a witness, the meaning of that
term is central to our inquiry.
The legislature has not defined what it means to
“offer” a person as a witness. However, this court has held
that a litigant may “offer” a person as a witness in a variety
of contexts. As an example, where the plaintiff in a med-
ical negligence action takes the discovery deposition of a
defendant medical provider, this court has held that she
has “offered” that person as a witness within the meaning
of OEC 511. State ex rel Grimm v. Ashmanskas, 298 Or 206,
214, 690 P2d 1063 (1984); State ex rel Calley v. Olsen, 271
Or 369, 381, 532 P2d 230 (1975).3 By offering the person as
3
Calley was decided under former ORS 44.040 (1975), the predecessor stat-
ute to OEC 511. Former ORS 44.040(2) (1975) provided:
“If a party to the action, suit or proceeding offers himself as a witness,
it is deemed a consent to the examination also of a * * * physician or surgeon
* * * on the same subject.”
Cite as 361 Or 223 (2017) 229
a witness in a discovery deposition, the proponent waives
the physician-patient privilege under OEC 511 with respect
to “communications on the same subject with the same or
other persons when a significant part of the privileged com-
munication is voluntarily disclosed.” State v. Langley, 314 Or
247, 264, 839 P2d 692 (1992), adh’d to on recons, 318 Or 28,
861 P2d 1012 (1993) (internal quotation marks and citation
omitted); see also Grimm, 298 Or at 214; Calley, 271 Or at
381.
Of course, in addition to offering a person as a wit-
ness in a deposition, a litigant may offer a person as a witness
at trial. In the trial context, the Oregon Evidence Code—of
which OEC 511 is a part—includes numerous uses of that
term with respect to the offering of witness testimony. See
State v. Klein, 352 Or 302, 309, 283 P3d 350 (2012) (statu-
tory context includes other related statutes); see also State v.
Ofodrinwa, 353 Or 507, 512, 300 P3d 154 (2013) (“The con-
text for interpreting a statute’s text includes the preexisting
* * * statutory framework within which the law was enacted.”
(Internal quotation omitted.)). In a consistent practice, the
Evidence Code uses the term “offer” to refer to the presen-
tation of witness testimony by its proponent. See, e.g., OEC
103 (court “may direct the making of an offer in question
and answer form” (emphasis added)); OEC 404(2)(a), (b), (d)
(describing “offer[ ]” of character evidence by proponent).
As this court explained in State v. Langley, 314 Or 247, 264, 839 P2d 692
(1992), adh’d to on recons, 318 Or 28, 861 P2d 1012 (1993):
“Before 1981, any testimony offered by a holder of privilege waived any
communication that the holder had with any other person ‘on the same sub-
ject.’ Former ORS 44.040(2) repealed by Or Laws 1981, ch 892, § 98. There
was unresolved inconsistency in this court’s interpretation of the ‘on the same
subject’ language. See Stark Street Properties v. Teufel, 177 Or 649, 658 n 212,
562 P2d 531 (1977) (citing cases and commenting that interpretation of ‘same
subject’ depended on attitude of court toward policies behind privileges). In
the medical treatment arena, this court held that once a patient intentionally
offered testimony of one doctor, the privilege was terminated for all purposes
related to that injury or illness. [Calley, 271 Or at 381]. Adopted in 1981, OEC
511 substantially reduced the inconsistency. It limits the scope of waiver to
‘communications on the same subject with the same or other persons when
a significant part of the privileged communication is voluntarily disclosed.’
OEC 511 (emphasis added).”
Despite the noted differences between former ORS 44.020 (1975) and OEC 511,
Calley provides a relevant understanding of what it means to “offer” a witness for
purposes of effecting a waiver of the physician-patient privilege.
230 Barrier v. Beaman
Whether in the context of a deposition or at trial,
that understanding of what it means to “offer” a person as a
witness is consistent with the ordinary meaning of the term:
A proponent offers a person as a witness when she affirma-
tively “brings forward” or “presents” the person as a witness
for testimony. See Webster’s Third New Int’l Dictionary 1566
(unabridged ed 2002) (defining “offer” as “to present”; “to
bring or put forward for action or consideration”; and “<~ed
himself as a candidate for governor>”). In short, the text and
context of OEC 511 establish that—whether in a deposition
or at trial—only a proponent “offers” a person as a witness
for the purpose of voluntarily disclosing communications
or other matters that are subject to the physician-patient
privilege.
That meaning of “offer” illuminates the issue before
us. Under that meaning, when a plaintiff-patient partici-
pates in a discovery deposition and answers questions per-
taining to her medical treatment at the behest of an adverse
party, she has not offered herself as a witness within the
meaning of OEC 511. Because the plaintiff must appear at
a discovery deposition for which she receives proper notice,
see ORCP 46 D (setting out the consequences of failing to
appear at a discovery deposition after being served with
proper notice, including dismissal of the action and payment
of attorneys’ fees), she cannot be said to have offered herself
as a witness by answering questions in the deposition.4
As noted, this court’s previous decisions are also
consistent with that understanding. In Calley, this court
explained that the relevant question in determining
whether a waiver of the physician-patient privilege occurred
is whether the plaintiff “offer[ed herself or another person]
as a witness.” 271 Or at 375. Again, the court went on to
hold that a plaintiff “offers” her treating physician as a
4
That understanding of the meaning of “offer” also explains why the legis-
lature likely would have perceived the need to expressly exclude from the con-
cept of voluntary disclosure testimony about privileged communications that is
adduced through the offering of a person as a witness in a perpetuation depo-
sition, unless and until the offering of the deposition as evidence at trial. But
for that express exclusion, the proponent could be deemed to have offered the
deponent as a witness (and thereby to have voluntarily disclosed any privileged
communication or other matters elicited by the proponent in the deposition) by
taking the deposition.
Cite as 361 Or 223 (2017) 231
witness when she herself takes the deposition testimony of
that treating physician. Id. at 381. Later, in Grimm, which
was decided after the adoption of the Evidence Code, this
court reiterated that understanding of the waiver rule in
a medical negligence case. The question in that case was
whether the plaintiff’s voluntary act of deposing the defen-
dant treating physician in a medical negligence action con-
stituted a waiver of the plaintiff’s physician-patient privi-
lege with respect to other treating physicians concerning
the same condition. After answering that question in the
affirmative, the court went further and addressed the very
question before us now:
“We do not believe the legislature intended waiver to
occur when a plaintiff in a personal injury or malpractice
case is required by the opponent to submit to a pretrial dis-
covery deposition, because in that situation the holder of
the privilege is not voluntarily offering his or her confiden-
tial communications or personal condition to the public.”
Grimm, 298 Or at 213 n 3. Because it was not essential to
resolve the issue before the court in Grimm, that statement
was dictum. However, it is consistent with the text of the
statute in its context and therefore carries persuasive force.
See Halperin v. Pitts, 352 Or 482, 494, 287 P3d 1069 (2012)
(stating that “prior construction, even if dictum, could have
persuasive force because of the soundness of its reasoning”).
Defendants remonstrate that OEC 511 does not
expressly indicate that the voluntary disclosure of commu-
nications or other matters that are subject to the physician-
patient privilege can only occur when the holder of the priv-
ilege offers a witness who testifies concerning the privileged
matter or communication. Although that is true, the last
sentence of that section sets out a specific rule for when a
waiver of the physician-patient privilege does occur within
the context of litigation. The most reasonable reading of
it is that the legislature thereby intended—by negative
implication—to indicate that no waiver would occur until the
holder herself “offers” a witness who testifies as to privileged
matters. Cf. Moro v. State of Oregon, 354 Or 657, 671-72, 320
P3d 539 (2014) (holding that necessary negative implica-
tion of constitutional provision authorizing appointment of
232 Barrier v. Beaman
attorneys as judges pro tempore of courts inferior to Supreme
Court is that attorneys may not serve as judges pro tempore
of Supreme Court). If voluntary disclosure also would occur
when the holder appears and testifies as to privileged com-
munications and other matters at the behest of the adverse
party, there would have been no reason for the legislature to
expressly tie voluntary disclosure of such communications
and other matters to the offering of a person as a witness.
The legislative history of OEC 511 is consistent
with the foregoing analysis.5 In a subcommittee hearing
preceding the enactment of the rule, Judge Robert E. Jones,
a member of the Advisory Committee on Evidence Law
Revision and a circuit court judge (later a member of this
court), stated his understanding of then-current law that,
in a civil action, the physician-patient privilege existed until
the patient offered him or herself as a witness. Testimony,
Subcommittee on Evidence of the Joint Committee on the
Judiciary, HB 2030, Apr 8, 1980 (statement of Hon. Robert
E. Jones). Judge Jones’s statement stood uncontradicted.
In addition to the remarks of Judge Jones, considerable dis-
cussion in subsequent committee hearings was devoted to
whether the “voluntary disclosure” concept in the rule would
apply to the physician-patient privilege.6 However, nothing
that we have found or to which the parties have referred us
suggests that the legislature meant for voluntary disclosure
of matters subject to the physician-patient privilege to occur
through an opponent’s deposition of a holder of the privilege,
rather than when the holder of the privilege him or herself
offers a person as a witness in accordance with the last sen-
tence of the rule.
Defendants nevertheless argue that consideration
of the salutary benefits of providing pretrial discovery of
relevant evidence compels the conclusion that plaintiff
waived his physician-patient privilege by participating in
5
We have reviewed the official commentary to OEC 511 and found nothing
that sheds meaningful light on the issue before us.
6
Eventually, the essence of the last sentence of the rule was proposed, pro-
viding that voluntary disclosure would occur “at the holder’s offering of the holder
or other person as a witness.” Exhibit R, House Committee on Judiciary, HB
2030, Mar 5, 1981, 9 (memorandum on HB 2030 Article V Privileges by Oregon
District Attorneys Association).
Cite as 361 Or 223 (2017) 233
his deposition. Defendants note that plaintiff could have
refused to answer questions about his treatment by defen-
dants and other health care providers based on that priv-
ilege, but failed to do so. See ORCP 39 D(3)(c) (providing
that deponent may decline to answer question “to preserve
a privilege”). Although that is true, it does not mean that
plaintiff nevertheless voluntarily disclosed his testimony; as
discussed, plaintiff did not “offer” his testimony by answer-
ing questions about the treatment of his physical condition
in his discovery deposition.
Moreover, it is questionable whether defendants’
construction of OEC 511 would achieve the benefits that they
suggest. To the contrary, defendants’ construction arguably
would create a disincentive for plaintiffs in personal injury
and medical negligence cases to cooperate in their discovery
depositions. Instead, their counsel might well instruct them
pursuant to ORCP 39 D(3)(c) to decline to answer ques-
tions pertaining to their medical treatment. That practice,
in turn, could increase the likelihood of discovery disputes,
increase the burden on the courts and expense to the par-
ties, and create additional delays in litigation.7
It follows from our analysis that plaintiff did not
voluntarily disclose privileged communications or matters
or otherwise waive his physician-patient privilege under
OEC 511 by answering without objection questions in his
discovery deposition regarding the treatment of his physi-
cal condition.8 Accordingly, we hold that a peremptory writ
of mandamus directing the circuit court to vacate its order
allowing the depositions of plaintiff’s health care providers
should issue.
Peremptory writ to issue.
7
Of course, the legislature is free to enact a different framework for the
waiver of privileges should it so choose. However, our duty is to interpret OEC 511
as written and in its context, not to engage in a free-ranging policy deliberation.
8
Our holding in this case is limited to consideration of the physician-patient
privilege. We do not consider whether and to what extent a waiver by voluntary
disclosure of communications or matters subject to other privileges can occur in
the context of a discovery deposition.