Humphers v. First Interstate Bank of Oregon

• Decision Date: 06 March 1985
• Parties: , 48 A.L.R.4th 651, 53 USLW 2491 Ramona HUMPHERS, Respondent on Review, v. FIRST INTERSTATE BANK OF OREGON, Personal Representative for the estate of Harry E. Mackey, Petitioner on Review. A 82-09-05889; CA A28047; SC S30908.
• Court: Oregon Supreme Court

Page 527

696 P.2d 527

298 Or. 706, 48 A.L.R.4th 651, 53 USLW 2491

Ramona HUMPHERS, Respondent on Review, v. FIRST INTERSTATE BANK OF OREGON, Personal Representative for the estate of Harry E. Mackey, Petitioner on Review.

A 82-09-05889; CA A28047; SC S30908.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 7, 1984.

Decided March 6, 1985.

Cynthia S.C. Shanahan, Portland, argued the cause for petitioner on review. With her on the briefs were Ridgway K. Foley, Jr., and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

David J. Sweeney, Portland, argued the cause for respondent on review. With him on the briefs were Judith A. Scholz, Mark B. Weintraub and Gilbertson, Brownstein, Rask, Sweeney, Kerr & Grim, Portland.

LINDE, Justice.

We are called upon to decide whether plaintiff has stated a claim for damages in alleging that her former physician revealed her identity to a daughter whom she had given up for adoption.

In 1959, according to the complaint, plaintiff, then known as Ramona Elwess or by her maiden name, Ramona Jean Peek, gave birth to a daughter in St. Charles Medical Center in Bend, Oregon. She was unmarried at the time, and her physician, Dr. Harry E. Mackey, registered her in the hospital as "Mrs. Jean Smith." The next day, Ramona consented to the child's adoption by Leslie and Shirley Swarens of Bend, who named her Leslie Dawn. The hospital's medical records concerning the birth were sealed and marked to show that they were not public. Ramona subsequently remarried and raised a family. Only Ramona's mother and husband and Dr. Mackey knew about the daughter she had given up for adoption.

Twenty-one years later the daughter, now known as Dawn Kastning, wished to establish contact with her biological mother. Unable to gain access to the confidential court file of her adoption (though apparently able to locate the attending physician), Dawn sought out Dr. Mackey, and he agreed to assist in her quest. Dr. Mackey gave Dawn a letter which stated that he had registered Ramona Jean Peek at the hospital, that although he could not locate his medical records, he remembered administering diethylstilbestrol to her, and that the possible consequences of this medication made it important for Dawn to find her biological mother. The latter statements were untrue and made only to help Dawn to breach the confidentiality of the records concerning her birth and adoption. In 1982, hospital personnel, relying on Dr. Mackey's letter, allowed Dawn to make copies of plaintiff's medical records, which enabled her to locate plaintiff, now Ramona Humphers.

Ramona Humphers was not pleased. The unexpected development upset her and caused her emotional distress, worry, sleeplessness, humiliation, embarrassment, and inability to function normally. She sought damages from the estate of Dr. Mackey, who had died, by this action against defendant as the personal representative. After alleging the facts recounted above, her complaint pleads for relief on five different theories: First, that Dr. Mackey incurred liability for "outrageous conduct"; ¹ second, that his disclosure of a professional secret fell short of the care, skill and diligence employed by other physicians in the community and commanded by statute; third, that his disclosure wrongfully breached a confidential or privileged relationship; fourth, that his disclosure of confidential information was an "invasion of privacy" in the form of an "unauthorized intrusion upon plaintiff's seclusion, solitude, and private affairs;" and fifth, that his disclosures to Dawn Kastning breached a contractual obligation of secrecy. The circuit court granted defendant's motion to dismiss the complaint on the grounds that the facts fell short of each theory of relief and ordered entry of judgment for defendant. On appeal, the Court of Appeals affirmed the dismissal of the first, second, and fifth counts but reversed on the third, breach of a confidential relationship, and the fourth, invasion of privacy. Humphers v. First Interstate Bank of Oregon, 68 Or.App. 573, 684 P.2d 581 (1984). We allowed review. We hold that if plaintiff has a claim, it arose from a breach by Dr. Mackey of a professional duty to keep plaintiff's secret rather than from a violation of plaintiff's privacy.

A physician's liability for disclosing confidential information about a patient is not a new problem. In common law jurisdictions it has been more discussed than litigated throughout much of this century. ² There are precedents for damage actions for unauthorized disclosure of facts conveyed in confidence, although we know of none involving the disclosure of an adoption. Because such claims are made against a variety of defendants besides physicians or other professional counselors, for instance against banks, see, e.g., Peterson v. Idaho First National Bank, 83 Idaho 578, 367 P.2d 284 (1961), and because plaintiffs understandably plead alternative theories of recovery, the decisions do not always rest on a single theory.

Sometimes, defendant may have promised confidentiality expressly or by factual implication, in this case perhaps implied by registering a patient in the hospital under an assumed name. Plaintiffs were allowed to proceed on implied contract claims in Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973), in Hammonds v. Aetna Casualty & Surety Company, 243 F.Supp. 793 (N.D.Ohio 1965), and in Doe v. Roe, 93 Misc.2d 201, 400 N.Y.S.2d 668 (Sup.Ct.1977) (psychiatrist). That was the basis of an early Scottish decision against a doctor who revealed the apparent premarital conception of a child to a minister, causing the plaintiff's expulsion from the church. ³ A.B. v. C.D., (1851) 14 Dunlop 177. A contract claim may be adequate where the breach of confidence causes financial loss, and it may gain a longer period of limitations; ⁴ but contract law may deny damages for psychic or emotional injury not within the contemplation of the contracting parties, see Farris v. U.S. Fid. and Guar. Co., 284 Or. 453, 587 P.2d 1015 (1978), though perhaps this is no barrier when emotional security is the very object of the promised confidentiality. A contract claim is unavailable if the defendant physician was engaged by someone other than the plaintiff, see Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965) (denying claim by injured customer treated by store's doctor), and it would be an awkward fiction at best if age, mental condition, or other circumstances prevent the patient from contracting; yet such a claim might be available to someone less interested than the patient, for instance her husband, Clayman v. Bernstein, 38 Pa.D. & C. 543 (1940).

Malpractice claims, based on negligence or statute, in contrast, may offer a plaintiff professional standards of conduct independent of the defendant's assent. In Furniss v. Fitchett, [1958] N.Z.L.R. 396 (S.C.), a wife was convinced that her husband was insane and was doping her, and the couple's physician gave the distraught husband a document stating that the wife's suspicions were a paranoid delusion. The New Zealand Supreme Court held the physician liable for foreseeable harm to the wife (whom he had not told of the diagnosis) under the "general conception of relations giving rise to a duty of care" stated in Donoghue v. Stevenson, [1932] A.C. 562. But the court found this duty in the relation between doctor and patient; a claim of negligence is unavailable against a defendant not bound to confidentiality by such professional standards. Finally, actions for intentional infliction of severe emotional distress, see supra note 1, fail when the defendant had no such intention or, in a context of independent responsibility such as that of the physician in Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971), when a defendant was not reckless or did not behave in a manner that a factfinder could find to transcend "the farthest reaches of socially tolerable behavior." Hall v. The May Dept. Stores, 292 Or. 131, 137, 637 P.2d 126 (1981). Among these diverse precedents, we need only consider the counts of breach of confidential relationship and invasion of privacy on which the Court of Appeals allowed plaintiff to proceed. Plaintiff did not pursue her other theories in her response to the petition for review, ORAP 10.15(2), and we express no view whether the dismissal of those counts was correct.

PRIVACY

Although claims of a breach of privacy and of wrongful disclosure of confidential information may seem very similar in a case like the present, which involves the disclosure of an intimate personal secret, the two claims depend on different premises and cover different ground. Their common denominator is that both assert a right to control information, but they differ in important respects. Not every secret concerns personal or private information; commercial secrets are not personal, and governmental secrets are neither personal nor private. Secrecy involves intentional concealment. "But privacy need not hide; and secrecy hides far more than what is private." Bok, Secrets 11 (1983).

For our immediate purpose, the most important distinction is that only one who holds information in confidence can be charged with a breach of confidence. If an act qualifies as a tortious invasion of privacy, it theoretically could be committed by anyone. In the present case, Dr. Mackey's professional role is relevant to a claim that he breached a duty of confidentiality, but he could be charged with an invasion of plaintiff's privacy only if anyone else who told Dawn Kastning the facts of her birth without a special privilege to do so would be liable in tort for invading the privacy of her mother.

Whether "privacy" is a usable legal category has been much debated in other English-speaking jurisdictions as well as in this country, especially since its use in tort law, to claim the protection of government against intrusions by others, became entangled with...