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A physician's duty to keep medical and related information about a patient in confidence is beyond question. It is imposed by statute. Or. Rev. Stat. § 677.190(5) provides for disqualifying or otherwise disciplining a physician for willfully or negligently divulging a professional secret.
In 1959, 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, and consented to the child’s adoption by Leslie and Shirley Swarens. Only Ramona's mother and husband and plaintiff’s physician, dr. Harry E. Mackey, knew about the plaintiff’s 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, and sought out Dr. Mackey’s assistance in doing so. Dr. Mackey provided a letter to Dawn, which the latter has shown to the hospital. The 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. Plaintiff, contending that the unexpected development caused her emotional distress, worry, sleeplessness, humiliation, and embarrassment, sought damages from the estate of Dr. Mackey. According to the plaintiff, Dr. Mackey incurred liability for outrageous conduct, and 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. The plaintiff further argued that the disclosure wrongfully breached a confidential or privileged relationship; that it was an "invasion of privacy" in the form of an "unauthorized intrusion upon plaintiff's seclusion, solitude, and private affairs;" and that his disclosures to Dawn Kastning breached a contractual obligation of secrecy. The circuit court granted defendant’s motion to dismiss on the grounds that the facts fell short of each theory of relief and ordered entry of judgment for defendant. The Court of Appeals reversed the circuit court's dismissal of some of plaintiff's claims and concluded that plaintiff could sue for breach of a confidential relationship and invasion of privacy. Defendant, personal representative of doctor's estate, sought review of the judgment of the Court of Appeals.
Under the circumstances, could the plaintiff sue for breach of a confidential relationship and invasion of privacy?
Yes, with respect to the claim of breach of a confidential relationship. No with respect to the claim of invasion of privacy.
The Court affirmed in part and held that the doctor had no privilege to disregard his professional duty of secrecy under Or. Rev. Stat. § 677.190(5) in light of the constraints imposed by Or. Rev. Stat. § 7.211, which provided that court records in adoption proceedings could not be inspected or disclosed except upon court order. Or. Rev. Stat. § 432.420 required a court order before sealed adoption records could be opened. Plaintiff had authority to proceed with respect to the claim of breach of confidentiality. The Court reversed in part and held that plaintiff could not proceed under her claim for invasion of privacy because the doctor did not pry into a confidence but failed to keep one.