Humphers v. First Interstate Bank of Oregon

• Decision Date: 06 June 1984
• Docket Number: No. A8209-05889,A8209-05889
• Citation: 68 Or.App. 573,684 P.2d 581
• Parties: Ramona HUMPHERS, Appellant, v. FIRST INTERSTATE BANK OF OREGON, Personal Representative of the Estate of Harry E. Mackey, Respondent. ; CA A28047.
• Court: Oregon Court of Appeals

Page 581

684 P.2d 581

68 Or.App. 573

Ramona HUMPHERS, Appellant, v. FIRST INTERSTATE BANK OF OREGON, Personal Representative of the Estate of Harry E. Mackey, Respondent.

No. A8209-05889; CA A28047.

Court of Appeals of Oregon.

Argued and Submitted Dec. 8, 1983.

Decided June 6, 1984.

David J. Sweeney, Portland, argued the cause for appellant. With him on the briefs were Judith A. Scholz, and Mark B. Weintraub, Certified Law Student, Portland.

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

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Plaintiff appeals the dismissal of her first amended complaint for outrageous conduct, medical malpractice, breach of confidential relationship, invasion of privacy and breach of contract. We affirm in part and reverse in part.

Plaintiff's factual allegations are, in pertinent part:

"III

"On February 2, 1959, there was born to the plaintiff, then known as Ramona Elwess, a child in St. Charles Medical Center, Bend, Deschutes County, Oregon. Plaintiff was also known by her maiden name, Ramona Jean Peek. Plaintiff had been previously married, but was unmarried at the time of the birth. Harry E. Mackey registered plaintiff in St. Charles Medical Center as 'Mrs. Jean Smith' and delivered her baby. Plaintiff made her real name known only to Dr. Mackey.

"IV

"On February 3, 1959, plaintiff consented to the adoption of her child by Leslie Arnold Swarens and Shirley Lee Swarens of Bend, Deschutes County, Oregon. The daughter was named Leslie Dawn Swarens. She is now known as Dawn Kastning.

"V

"Plaintiff's medical records at St. Charles Medical Center were thereafter sealed and stated on their face that they were not public.

"VI

"Plaintiff subsequently married, had children, and raised a family. Plaintiff's mother and husband were the only people other than Dr. Mackey to know of the existence of her adopted daughter. Dawn Kastning did not know the identity of her biological mother.

"VII

"On or about September 29, 1980, Ms. Kastning contacted Dr. Mackey and expressed an interest in contacting her biological mother. Ms. Kastning had been unable to gain access to her confidential adoption file in the District Court of the State of Oregon of the County of Deschutes. Dr. Mackey agreed to assist Ms. Kastning in ascertaining the identity and whereabouts of plaintiff.

"VIII

"Dr. Mackey provided Ms. Kastning with a letter, dated September 29, 1980, in which he stated that he had registered plaintiff at the hospital and delivered Ms. Kastning; that plaintiff's name was Ramona Jean Peck [sic ]; that he was unable to locate his medical records, but he distinctly remembered having administered to her a medication known as diethystilbestrol; that because of side effects of that drug, it was important for Ms. Kastning to contact plaintiff.

"IX

"The above letter was intended to cause any reader who was charged with maintaining the confidentiality of Ms. Kastning's adoption records and birth certificate to breach the confidentiality of those records and allow Ms. Kastning to view them.

"X

"On or about June 1, 1982, personnel at St. Charles Medical Center, in reliance upon Dr. Mackey's letter, allowed Ms. Kastning to view and make copies of plaintiff's medical records.

"XI

"Said personnel would not have permitted such viewing, but for the false statements in Dr. Mackey's letter.

"XII

"As a result of Dr. Mackey's false statements and Ms. Kastning's consequent ability to view plaintiff's confidential records, Ms. Kastning was able to discover the identity and whereabouts of plaintiff, in spite of plaintiff's efforts to keep her identity unknown to Ms. Kastning."

The complaint alleged five torts in separate counts. Because the trial court's judgment constitutes a dismissal of each of plaintiff's five claims, we must necessarily decide the validity of each claim.

I. OUTRAGEOUS CONDUCT

Plaintiff's first claim is for outrageous conduct causing severe emotional distress. Outrageous conduct is an intentional tort which requires inflicting actual mental suffering on the plaintiff to be the deliberate purpose of the defendant's conduct. Brewer v. Erwin, 287 Or. 435, 457, 600 P.2d 398 (1979). However, the tortious purpose can be found in the breach of some obligation that attaches to a defendant's responsibility toward the plaintiff. 287 Or. at 457, 600 P.2d 398. In this case, Dr. Mackey had been plaintiff's treating physician. The physician-patient relationship is sufficient to create the duty; and defendant may therefore be liable, even if Mackey did not have as his deliberate purpose inflicting actual mental suffering on plaintiff. Rockhill v. Pollard, 259 Or. 54, 63, 485 P.2d 28 (1971).

However, plaintiff still must allege and prove, however, that the means of inflicting the injury were "extraordinary." Brewer v. Erwin, supra, 287 Or. at 457, 600 P.2d 398. "Lack of foresight, indifference to possible distress, even gross negligence, is not enough to support this theory of recovery." Hall v. The May Dept. Stores, 292 Or. 131, 135, 637 P.2d 126 (1981). In order for plaintiff to recover, she must allege and prove that the offensiveness of Mackey's conduct "exceeds any reasonable limit of social toleration." 292 Or. at 137, 637 P.2d 126. We hold, as a matter of law, that reasonable persons could not differ that the conduct alleged in plaintiff's complaint was not so extreme and outrageous that it exceeded any reasonable limit of social toleration and justified plaintiff's recovery against defendant for outrageous conduct. Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 682 (1969). Therefore, the trial court was correct in granting defendant's motion to dismiss plaintiff's claim for outrageous conduct.

II. MEDICAL MALPRACTICE

Plaintiff's second claim is for medical malpractice. Under the allegations in the complaint, it is possible that plaintiff could prove that Mackey's conduct in providing her name and giving the letter to Dawn Kastning (Dawn), fell below "the standard of reasonable conduct deemed to have been set by the community." Simpson v. Sisters of Charity of Providence, 284 Or. 547, 588 P.2d 4 (1978). However, it is axiomatic that a physician, merely because of his trade, does not have a greater responsibility in nonmedical matters than that of the general public. An action for medical malpractice will only lie for activities in which the defendant was involved in the practice of medicine. The issue, therefore, is whether Mackey's action in revealing plaintiff's name and giving the letter to Dawn over 20 years after he had terminated his treatment constitutes the practice of medicine. We hold that it does not.

Nothing that Mackey did in 1980 had or could have had any medical effect on plaintiff's condition. In fact, the condition for which Mackey had treated plaintiff (pregnancy) had not been in existence for 20 years. The mere fact that Mackey utilized his medical records to enable him to take the action in 1980 does not make the action the practice of medicine. Certainly, no reasonable person would conclude that a retired doctor would violate a prohibition against practicing medicine if he looked at his former records and revealed to a patient something that was contained therein. Mackey's actions in 1980 do not constitute the practice of medicine and cannot render his estate liable for an action for medical malpractice. The trial court properly granted defendant's motion to dismiss the count for medical malpractice.

III. BREACH OF CONFIDENTIAL RELATIONSHIP

Plaintiff's third count is for breach of a confidential relationship. The availability of a civil remedy for breach of a confidential relationship between a physician and a patient is an issue which has never been decided in this state. At common law, there was no physician-patient privilege of any kind. A physician could be required to testify in court the same as any other witness, and the patient had no right to limit the physician's disclosure of any information obtained during treatment. Forrest v. Portland Ry. L. & P. Co., 64 Or. 240, 243, 129 P. 1048 (1913); State v. Wright, 31 Or.App. 1351, 1354, 572 P.2d 669 (1977).

Two statutes in Oregon have arguable relevance to a physician-patient privilege. The most obvious is OEC 504-1(2), which provides:

"A patient has the 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." (Emphasis supplied.)

This statute and its predecessors have strictly been construed on the theory that "a statutory privilege is usually an inhibiting limitation upon the discovery of truth." Triplett v. Bd. of Social Protection, 19 Or.App. 408, 413, 528 P.2d 563 (1974). "The privilege was created and is limited by the statute." State v. Wright, supra, 31 Or.App. at 1354, 572 P.2d 669. We have held that the statute and its predecessor do not cover testimony in a criminal proceeding or testimony of a doctor who is consulted for an examination only and provided no treatment. State v. Wright, supra; Triplett v. Bd. of Social Protection, supra. OEC 504-1(2) cannot reasonably be expanded to justify a civil remedy for violation of the physician-patient confidential relationship.

The other Oregon statute which relates to the physician-patient relationship is contained in the rules governing licensing of physicians. ORS 677.190(5) provides as a ground for suspending, revoking or refusing to grant a license, registration or certification "wilfully or negligently divulging a professional...