Ransom v. Radiology Specialists of the Nw.

• Decision Date: 23 August 2018
• Docket Number: CC 15CV08484 (SC S064309)
• Citation: 363 Or. 552,425 P.3d 412
• Parties: Kimberli RANSOM, Plaintiff-Relator, v. RADIOLOGY SPECIALISTS OF the NORTHWEST, a professional corporation, Defendant-Adverse Party, and Legacy Health, an Oregon corporation, Defendant.
• Court: Oregon Supreme Court

363 Or. 552

425 P.3d 412

Kimberli RANSOM, Plaintiff-Relator,

v. RADIOLOGY SPECIALISTS OF the NORTHWEST, a professional corporation, Defendant-Adverse Party,andLegacy Health, an Oregon corporation, Defendant.

CC 15CV08484 (SC S064309)

Supreme Court of Oregon.

Argued and submitted June 23, 2017.

August 23, 2018

Rhett G. Fraser, Huegli Fraser P.C., Portland, argued the cause and filed the brief for relator. Also on the brief was James D. Huegli.

Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and filed the brief for adverse party.

Lindsey H. Hughes, Keating Jones Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

Kathryn H, Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, and Duncan, Justices, and Landau, Senior Justice, Justice pro tempore.^**

WALTERS, C.J.

Plaintiff, the relator and petitioner in this original mandamus proceeding, filed a medical negligence action alleging that two radiologists employed by Radiology Specialists of the Northwest (defendant) were negligent in reading her imaging studies when they examined them in 2013. In 2016, during discovery in that underlying action, plaintiff took the depositions of the radiologists. The radiologists testified to the findings that they had made after examining plaintiff's imaging studies, but, when plaintiff showed the radiologists the studies, they testified that they had no independent memory of reviewing them. When plaintiff then asked the radiologists to tell her what they could now see in those studies, defense counsel instructed the radiologists not to answer. Defense counsel took the position that those questions called for "expert testimony" that is not discoverable under ORCP 36 B. Defense counsel also argued that those questions impermissibly invaded the attorney client privilege set out in OEC 503. Plaintiff filed a motion to compel discovery and sought an order allowing her to ask the radiologists about their current "knowledge and ability to read and interpret" the imaging studies. The trial court denied plaintiff's motion, and she petitioned this court for a writ of mandamus requiring the trial court to grant her motion, or, in the alternative, show cause why it had not done so. This court issued the writ; the trial court declined to change its ruling.

For the reasons that follow, we conclude that the questions that plaintiff asked the radiologists about what they saw in plaintiff's imaging studies in 2016 were relevant under ORCP 36 B; they were reasonably calculated to lead to admissible evidence about the radiologists' treatment of plaintiff in 2013 and what they perceived and knew at that time. We also conclude that those questions do not call for impermissible "expert testimony" and do not invade the attorney client privilege. Consequently, a peremptory writ of mandamus shall issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts necessary to our analysis are uncontested. In April 2015, plaintiff filed a complaint against defendant¹ and alleged that, in 2013, it employed two radiologists—Dr. Bageac and Dr. Divine—who read her computerized tomography scan (CT scan ), bone scans, and plain x-ray films. Plaintiff alleged that the radiologists misread those imaging studies, that their misreading led to an error in staging petitioner's cancer as Stage II rather than Stage IV, and that defendant is liable for the negligence of the radiologists.

In discovery, plaintiff obtained the reports that the radiologists had dictated in 2013 as they read plaintiff's imaging studies, as well as the studies themselves. Subsequently, in 2016, plaintiff deposed the two radiologists. Plaintiff asked each of them about their educational backgrounds and experience, showed them the reports that they had dictated in 2013, and asked them questions about the procedures that they had used and the findings that they had made. Defense counsel permitted the radiologists to answer those questions. For instance, counsel did not object when plaintiff asked Bageac about his finding that "[t]wo focal areas of increased tracer uptake are seen in the right humerus." Bageac answered that that finding means that "within the right humerus there are two areas of concentrated tracer, more than the big round, to the bone." Defense counsel did not, however, permit the radiologists to answer plaintiff's questions about the imaging studies themselves. For instance, when plaintiff's counsel showed Bageac the bone scan that was the subject of his findings and asked what the two white dots on the scan represent, defense counsel instructed Bageac not to answer the question unless he had an independent memory of interpreting the bone scan in 2013. Bageac did not answer plaintiff's question. Plaintiff then asked Bageac whether he knows what a focal area of increased tracer uptake in the right humerus looks like. When Bageac acknowledged that he does, plaintiff asked whether her 2013 bone scan reflects two focal areas of increased tracer uptake in the right humerus. Defense counsel again instructed Bageac not to answer unless he had a specific memory of reviewing the bone scan in 2013, and, again, Bageac did not answer the question.

The deposition of Bageac and the other radiologist whom plaintiff deposed—Divine—continued in the same way.

Defense counsel permitted the radiologists to testify to what they had reported about the imaging studies in 2013 but not to what they saw in those studies at the time of their depositions in 2016. For instance, plaintiff's counsel questioned Bageac about a bright spot in one of the scans as follows:

"[Plaintiff's counsel]: Okay. Do you recognize in No. 1 the bright spot in the middle of this picture?

"[Defense counsel]: Do you have an independent memory of reviewing this study as you sit here today?

"The witness: No.

"[Defense counsel]: Would answering [plaintiff's] question require you to use your expertise, your education and your training and background, as you sit here today, to interpret this study?

"[Plaintiff's counsel]: I'll stipulate that it would.

"[Defense counsel]: Okay. Then object and instruct not to answer, unless you have a memory."

Counsel explained that the basis for her instructions not to answer those questions and questions along the same lines² was that, in counsel's view, the questions impermissibly sought expert testimony not discoverable pursuant to ORCP 36 B or called for information protected by the attorney-client privilege.

Plaintiff disagreed, and, after she completed the depositions of the two radiologists, she moved the trial court for an order "allowing her to ask [the radiologists] about their knowledge and ability to read and interpret" plaintiff's 2013 scans and films. Defendant opposed the motion and attached declarations from the radiologists. Bageac stated that he had interpreted plaintiff's nuclear medicine bone study in 2013, and Divine stated that he had interpreted a CT scan of plaintiff's chest, abdomen, and pelvis in 2013. Both radiologists stated that they had "no present recollection" of their interpretations or the images they had interpreted. Further, both stated:

"Since I have no memory of my *** review and interpretation [of the images,] *** my answers would necessarily be based on a fresh examination of the images, and, as such, upon newly formed or created opinions.

"If I am required to answer questions about the images, my answers would necessarily be informed, and affected by, each of the following factors which were not present at the time of my original review:

"a) The knowledge that the plaintiff's breast cancer was initially staged as Stage II and later staged as Stage IV;

"b) The knowledge that a lawsuit has been filed against my former group based in part on my interpretation of the[the studies at issue]; and

"c) Information obtained from my attorneys in defense of this case."

After oral argument, the trial court entered an order denying plaintiff's motion. Plaintiff filed a petition for an alternative writ of mandamus, which this court allowed. The trial court declined to change its ruling, and the parties filed briefs in this court presenting the following arguments.

II. THE PARTIES' ARGUMENTS

Plaintiff argues that ORCP 36 B grants her authority to ask the radiologists about their present knowledge and ability to read and interpret her 2013 imaging studies. She begins her argument with the text of ORCP 36 B(1), which provides:

"For all forms of discovery, parties may inquire regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

Plaintiff contends that ORCP 36 B entitles her to inquire into all relevant matters that are not privileged and that her questions to the radiologists are permitted by that rule and not barred by OEC 503, which governs the attorney-client privilege. Plaintiff contends that she must be allowed a reasonable opportunity to learn about and test the radiologists' expertise as it affected her treatment, and she asserts that she does not seek to discover communications between the radiologists and their counsel.

Defendant acknowledges that the text of ORCP 36 B permits broad discovery. Nevertheless, defendant submits, there are three reasons that the radiologists may refuse to answer plaintiff's questions. First, defendant argues, because the radiologists have no present recollection of reading plaintiff's imaging studies, plaintiff's...