Barrier v. Beaman

Under OEC 504-1(2), “[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.”

The issue on appeal was whether, under OEC 511, the plaintiff waived his physician-patient privilege by answering questions about the treatment of his physical condition by health care providers during a discovery deposition. After Plaintiff’s deposition, Defendants sought to depose the health care providers who had treated Plaintiff. Plaintiff refused to waive the physician-patient privilege with respect to those depositions. Defendant argued that Plaintiff waived the physician patient privilege when he answered the deposition questions, without objection. Under OEC 504-1(2), “[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.” Under OEC 511, however, no waiver can occur until the holder of the privilege “offers” a witness who testifies as to privileged matters. Additionally, OEC 511 requires that, whether at a deposition or a trial, only a proponent "offers" a person as a witness for the purposes of voluntary disclosure of communications or other matters that are subject to the physician-patient privilege. The Supreme Court stated, that “a plaintiff in a medical negligence action, by answering questions in a deposition regarding his medical treatment, does not waive the physician-patient privilege with regard to that medical treatment.” The Supreme Court concluded that, by answering questions about his treatment at his discovery deposition, Plaintiff did not “offer”—and as a result, did not voluntarily disclose—his testimony. Therefore, he did not waive his privilege. The Court held 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.