Triplett v. Board of Social Protection

• Decision Date: 18 November 1974
• Citation: 19 Or.App. 408,99 Adv.Sh. 2446,528 P.2d 563
• Parties: Mary Ann TRIPLETT, Petitioner, v. BOARD OF SOCIAL PROTECTION, State of Oregon, Respondent.
• Court: Oregon Court of Appeals

Page 563

528 P.2d 563

19 Or.App. 408

Mary Ann TRIPLETT, Petitioner, v. BOARD OF SOCIAL PROTECTION, State of Oregon, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 1974.

Decided Nov. 18, 1974.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and FORT and TANZER, JJ.

TANZER, Judge.

On February 1, 1974, the Board of Social Protection for the State of Oregon ordered the sterilization of petitioner. The case is here upon her petition for judicial review of that order.

Petitioner was referred by the Children's Services Division (CSD) of the Department of Human Resources to the University of Oregon Medical School for evaluation by the Child Rehabilitation Center. As part of the workup for that evaluation she underwent a series of examinations at the Crippled Children's Division of the Medical School. These examinations were conducted by a team of health professionals, headed by Dr. L. Paul Rasmussen, M.D.

Dr. Rasmussen, who had conducted the physical examination of petitioner and prepared a written history, was the first witness to testify at the hearing before the Board of Social Protection. He testified as to the examinations performed and the conferences held by the term. He also testified as to his own observations, opinions and conclusions. Dr. Rasmussen's testimony was not objected to by petitioner.

Next to testify was Dr. Leif Terdal, a psychologist at the Crippled Children's Division and a member of the examining team. Dr. Terdal testified as to his own examination of petitioner and his conclusions and opinions based on that examination. In addition copies of all the reports made by the examining team, which were contained in CSD's files, ¹ were admitted into evidence. These included a pediatric report, a physical examination report, a speech and hearing report, an occupational therapy report, a social work report, an orthopedic report, a dental report, a physical therapy report, an opthamology report, a neurology report, a psychological report and a clinic summary. Petitioner objected to the introduction of both Dr. Terdal's testimony and the examination reports on the basis of the physician-patient privilege provided by ORS 44.040(1)(d).

Finally, petitioner's caseworker, Elizabeth Hull, was allowed to testify as to her observations and opinions acquired during interviews and home visits, concerning petitioner's mental condition and abilities prior to the clinic examinations. Petitioner objected to this testimony, as well as to the examination reports, on the ground that they were both protected by ORS 411.320, which provides:

'For the protection of applicants for and recipients of public assistance, the Public Welfare Division and the county public welfare boards shall not disclose or use the contents of any records, files, papers or communications for purposes other than those directly connected with the administration of the public assistance laws of Oregon, and these records, files, papers and communications are considered confidential subject to the rules and regulations of the Public Welfare Division, except as otherwise provided in ORS 411.325 to 411.335. In any judicial proceedings, except proceedings directly connected with the administration of public assistance laws, their contents are considered privileged communications.' ²

We first consider whether Dr. Terdal's testimony and the examination reports were protected by the physician-patient privilege. ³ If we assume for argument that the testimony and reports of non-physicians working as members of a team of health professionals under the direction of a medical doctor come within the protection of the physician-patient privilege, ⁴ that privilege, nevertheless, is inapplicable here for other reasons.

Because the assertion of a statutory privilege is usually an inhibiting limitation upon the discovery of truth, such privileges are in derogation of the common law and should be strictly construed. See 8 Wigmore, Evidence, §§ 2380, 2380a; Cf., Nielson v. Bryson, 257 Or. 179, 182, 477 P.2d 714 (1970); Groff v. S.I.A.C., 246 Or. 557, 565, 426 P.2d 738 (1967); Hurley, PrivilegedCommunications in Oregon, 36 Or.L.Rev. 132, 160--161 (1957).

The physician-patient privilege created by ORS 44.040(1)(d) applies only as to 'information acquired in attending the patient, which was necessary to enable * * * (the doctor) to prescribe or act for the patient.' This language reflects the statutory policy of the physician-patient privilege that confidentiality should be protected only where vital to the attainment of the purposes for which the physician-patient relationship exists, i.e., treatment of medical problems. See Wigmore, supra at 829. Accordingly, the general rule has long been that where the doctor is consulted for the purpose of examination only, and not for treatment, no privilege exists. State ex rel. Juv. Dept. v. Wade, Or.App., 99 Adv.Sh. 2247, 527 P.2d 753 (1974); State v. Betts, 235 Or. 127, 140, 384 P.2d 198 (1963); State ex rel. Juv. Dept. v. Martin, Or.App. 99 Adv.Sh. 1694, 526 P.2d 647 (1974); See Anno. (Physician-Privilege-Examination), 107 A.L.R. 1495.

Here, the record establishes that petitioner was referred to the Medical School for evaluation to determine the degree of her mental retardation, her mental capabilities and possible ways in which she could be helped. CSD, in requesting the examinations, no doubt contemplated a wide range of possibly appropriate responses, including rehabilitative and other non-medical services.

There is nothing to indicate that Dr. Terdal and the other members of the examining team were then engaged in or preparing for treatment of petitioner. We conclude that the testimony and reports objected to did not concern information acquired in attending the petitioner which was necessary to enable the doctors to prescribe or act for her and, therefore, that the physician-patient privilege afforded by ORS 44.040(1)(d) is inapplicable.

Even if we assume, again for argument, that there existed a physician-patient privilege, it was, in our opinion, waived by petitioner. 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. 8 Wigmore, Evidence 862--864, § 2390; Capron v. Douglass, 193 N.Y. 11, 85 N.E. 827 (1908).

Here, Dr. Rasmussen, who headed the examining team, was allowed to testify without objection regarding the entire inter-disciplinary workup and his conclusions based thereon. Any physician-patient privilege which may have existed, therefore, was waived as to further testimony and evidence regarding the examinations.

We next consider whether, as petitioner contends, the testimony of petitioner's caseworker, Ms. Hull, as well as the examination reports, should have been excluded from evidence pursuant to ORS 411.320.

Again, because 'the proper assertion of a privileged communication may be expected * * * to be an inhibiting limitation upon the discovery * * * of the truth,' Groff v. S.I.A.C., supra, and because 'withholding of public records is the exception, not authorized unless a statute so provides,' Stivahtis v. Juras, 13 Or.App. 519, 511 P.2d 421 (1973), the privilege created by ORS 411.320 should be narrowly interpreted. Because petitioner's family receives benefits under the state's Aid to Dependent Children (ADC) program, however, the state statute must also be interpreted in a manner consistent with 42 U.S.C. § 602(a) and the regulations promulgated by the Department of Health, Education and Welfare (HEW). Drago v. Public Welfare Division, Or.App., 99 Adv.Sh. 1313, 525 P.2d 1065 (1974); Bunting v. Juras, 11 Or.App. 297, 502 P.2d 607 (1972).

42 U.S.C. § 602(a) provides:

'A State Plan for aid and services to needy families with children must * * * (9) provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of aid to families with dependent children * * *.'

It is clear, first of all, that both the examination reports and the testimony of Ms. Hull related information concerning an ADC recipient. The reports are covered by 45 CFR § 205.50(a)(2)(i), which, interpreting the federal statute, provides:

'Types of information to be safeguarded include but are not limited to:

'* * *

'(d) medical data, including diagnosis and past history of disease or disability, concerning a particular individual.' ⁵

As to the testimony of Ms. Hull, the same principles of confidentiality would apply to information acquired by her in the course of her work as would apply to any other type of safeguarded information.

Because the examination reports and Ms. Hull's testimony related information within the scope of protection provided by the federal statute ORS 411.320 forbids their use as evidence before the Board of Social Protection unless the proceeding was for a purpose directly connected with the administration of aid to families with dependent children. We proceed, therefore, to consider whether or not the involuntary sterilization proceeding was for such a purpose.

HEW regulations specify that purposes directly connected with the administration of aid to families with dependent children include 'establishing eligibility, determining the amount of assistance, and providing services for applicants and recipients.' 45 CFR § 205.50(a)(1)(i)....