71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 2356
 
                         House Bill 2932
 
Sponsored by Representative PATRIDGE (at the request of Oregon
  Association of Defense Counsel)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Provides that physician-patient privilege does not apply to
confidential communication relevant to physical, mental or
emotional condition of patient if patient relies on condition as
element of patient's claim or defense, or if other party relies
on condition as element of party's claim or defense after patient
dies.
 
                        A BILL FOR AN ACT
Relating to physician-patient privilege; amending ORS 40.235.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 40.235 is amended to read:
  40.235. (1) As used in this section, unless the context
requires otherwise:
  (a) 'Confidential communication' means a communication not
intended to be disclosed to third persons except:
  (A) Persons present to further the interest of the patient in
the consultation, examination or interview;
  (B) Persons reasonably necessary for the transmission of the
communication; or
  (C) Persons who are participating in the diagnosis and
treatment under the direction of the physician, including members
of the patient's family.
  (b) 'Patient' means a person who consults or is examined or
interviewed by a physician.
  (c) 'Physician' means a person authorized and licensed or
certified to practice medicine in any state or nation, or
reasonably believed by the patient so to be, while engaged in the
diagnosis or treatment of a physical condition. 'Physician '
includes licensed or certified naturopathic and chiropractic
physicians.
  (2) A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications in a civil action, suit or proceeding, made for
the purposes of diagnosis or treatment of the patient's physical
condition, among the patient, the patient's physician or persons
who are participating in the diagnosis or treatment under the
direction of the physician, including members of the patient's
family.
  (3) The privilege created by this section may be claimed by:
  (a) The patient;
  (b) A guardian or conservator of the patient;
  (c) The personal representative of a deceased patient; or
  (d) The person who was the physician, but only on behalf of the
patient. Such person's authority so to do is presumed in the
absence of evidence to the contrary.
  (4) The following is a nonexclusive list of limits on the
privilege granted by this section:
  (a) If the judge orders an examination of the physical
condition of the patient, communications made in the course
thereof are not privileged under this section with respect to the
particular purpose for which the examination is ordered unless
the judge orders otherwise.
  (b) Except as provided in ORCP 44, there is no privilege under
this section for communications made in the course of a physical
examination performed under ORCP 44.
  (c) There is no privilege under this section   { - with regard
to - }  { +  for + } any confidential communication { + , + } or
record of such confidential communication { + , + } that would
otherwise be privileged under this section when the use of the
communication or record is specifically allowed under ORS
426.070, 426.074, 426.075, 426.095, 426.120 or 426.307. This
paragraph only applies to the use of the communication or record
to the extent and for the purposes set forth in the described
statute sections.
   { +  (d) There is no privilege under this section for any
confidential communication, or record of such confidential
communication, that is relevant to the physical, mental or
emotional condition of the patient if the patient relies upon
that condition as an element of the patient's claim or defense,
or if any other party relies on that condition as an element of
the party's claim or defense after the death of the patient. + }
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