Protecting the Right to Talk to Your Doctor

The law recognizes several categories of people with whom you can speak without fear that you, or the person you speak with, can be questioned about the conversation in court. The most common categories are your spouse, your lawyer, a member of the clergy, and your doctor and other health care providers. This privilege to have private conversations lasts as long as you do not disclose the contents of the conversation (unless the disclosure is itself privileged). A recent case from Oregon, Barrier v. Beaman, 361 Or 223 (2017), <http://www.publications.ojd.state.or.us/docs/S063974.pdf> addresses when a conversation is disclosed and waives the privilege.

Mr. Barrier sued Dr. Beaman for malpractice, claiming that the doctor had botched a foot surgery. The doctor’s lawyers requested Mr. Barrier’s medical records relating to treatment of his foot, a routine request in personal injury cases, and Mr. Barrier provided copies of records from 17 other medical providers. Dr. Beaman’s lawyers then took Mr. Barrier’s deposition, and asked him about his medical care. He testified to the treatment he received. That was, again, an ordinary part of the defense’s investigation.

What happened next caused the dispute. Dr. Beaman’s lawyers asked to take the depositions of all 17 heath care providers that Mr. Barrier had seen. At this point, Mr. Barrier and his lawyers asserted that those depositions would infringe on his privileged conversations with the doctors and declined to schedule the depositions. Dr. Beaman asked the court for an order to require the depositions, which the judge granted.

Normally, appellate courts don’t get involved in the middle of cases. Where, however, a lower court ruling creates an irreversible problem (such as privileged information being disclosed), there is a special procedure to have it reviewed. In Oregon, that procedure involves a special request to the Supreme Court to direct the lower judge to rule in a specific way. Mr. Barrier made this request, asking that the order to hold the depositions be withdrawn.

The Oregon Supreme Court agreed that the depositions should be canceled. Unlike the rules of evidence in many states and in federal courts, the Oregon rules include a detailed description of the privileges recognized by the law and when they are waived. For the various health care privileges, the rule says that filing a suit does not, in itself, waive a privilege. When, however, a doctor is offered as a witness, that does waive the privilege. The rules do not, however, define the word “offer.”

In two previous cases, the court had identified situations where a witness was offered. First, if a witness is called to testify at trial, that is clearly an offer. Second, when a witness is deposed for discovery (not to preserve their testimony for trial), they are offered by the side calling the deposition. But, the court essentially concluded, when the patient is deposed by the other side, that information is not voluntarily provided, so it’s not an offer of the information. It’s an extraction. After that, the patient can still refuse to allow the doctors to be deposed.

Whether a federal court or a court in another state would rule the same way is uncertain. The federal courts try to follow the general trends of state courts in answering privilege questions. Many states, such as Washington, do not have clear statements in their rules when a privilege is waived, so it is possible that some states will allow depositions under a situation such as Mr. Barrier’s. If you have a case in which your medical condition is important, you should probably talk to a layer about how much you can say before the doctors can be called to testify despite your objections.

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