ORS 40.235¹
Rule 504-1. Physician-patient privilege

(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 or dentistry 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 and dentists.

(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 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 (Initiation), 426.074 (Investigation), 426.075 (Notice and records of treatment prior to hearing), 426.095 (Commitment hearing), 426.120 (Examination report) or 426.307 (Court hearing). 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. [1981 c.892 §33a; 1987 c.903 §2; 2005 c.353 §1]

Note: Section 2, chapter 353, Oregon Laws 2005, provides:

Sec. 2. The amendments to ORS 40.235 (Rule 504-1. Physician-patient privilege) by section 1 of this 2005 Act apply only to confidential communications made on or after the effective date of this 2005 Act [January 1, 2006]. [2005 c.353 §2]

(Rule 504-1)

See also annota­tions under ORS 44.040 in permanent edi­tion.

Notes of Decisions

Under Former Similar Statute (ORS 44.040)

When a party fails to object to the privileged testimony of one physician, she waives her physician-patient privilege as to all other testimony and evidence on the same subject. Triplett v. Bd. of Social Protec­tion, 19 Or App 408, 528 P2d 563 (1974)

Where patient calls his physician as a witness to prove a matter which the physician would only have learned in the course of his employ­ment, this constitutes a waiver as to related privileged communica­tions. State ex rel Juv. Dept. v. Brown, 19 Or App 427, 528 P2d 569 (1974), Sup Ct review denied

In an ac­tion for wrongful death, defendant may not ask for deposi­tions of decedent's physician if the physician has submitted a written report of medical findings. Woosley v. Dunning, 268 Or 233, 520 P2d 340 (1974)

Once the patient has inten­tionally offered or taken testimony of one doctor, either on trial or by deposi­tion, the privilege is terminated for all purposes relating to the injury or illness which was the subject of that doctor's testimony, including hospital records. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

The privilege is waived when a patient or his per­sonal representative takes the deposi­tion of a treating doctor. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

The beneficiary of decedent's life insurance policy had authority to waive the privilege for purposes of an ac­tion to enforce pay­ment under the policy. State ex rel Calley v. Olsen, 271 Or 369, 532 P2d 230 (1975)

Privilege applies to psychiatric records of parent in juvenile court pro­ceed­ing to terminate parental rights. State ex rel Juvenile Dept., Clatsop County v. Martin, 271 Or 603, 533 P2d 780 (1975)

Under Evidence Code

Plaintiff's voluntary act of deposing defendant-treating physician whom he was suing in malpractice ac­tion constituted waiver of plaintiff's physician-patient privilege with respect to other treating physicians concerning same condi­tion. State ex rel Grimm v. Ashmanskas, 298 Or 206, 690 P2d 1063 (1984)

Where per­son consults psychotherapist for professional assistance and reasonably believes psychotherapist is willing to es­tab­lish professional rela­tionship, fact that psychotherapist has ulterior purpose for interview will not prevent per­son from claiming privilege. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475 US 1141

Secretary-recep­tionist responsible for screening telephone calls to psychiatrist on duty at state hospital is included in this privilege. State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert. denied, 475 US 1141

Physician-patient privilege does not apply in workers' compensa­tion contested case claim hearing. Booth v. Tektronix, 312 Or 463, 823 P2d 402 (1991)

Where psychotherapy treat­ment requires defendant to prepare numerous written assign­ments, psychotherapist-patient privilege applies to assign­ments. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsidera­tion 318 Or 28, 861 P2d 1012 (1993)

Defendant waived psychotherapist-patient privilege when defendant voluntarily disclosed significant part of psychotherapist-patient communica­tions by submitting docu­ments in earlier trial. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsidera­tion 318 Or 28, 861 P2d 1012 (1993)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.

Chapter 40


Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors40.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­040ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information