Blocking the Defense When They Seek to Use Your Oregon Wrongful Death Lawsuit as a Means to Invade Your Privacy

When you pursue a wrongful death lawsuit, you’re seeking to hold accountable those responsible for your loved one’s premature demise. The other side seeks to avoid or minimize liability to the greatest extent possible. That defense position often entails making the litigation process as burdensome on you as possible within the confines of the law. These harsh realities serve as reminders of the importance of a skillful Oregon wrongful death lawyer, both in shouldering that burden and applying the brakes when the other side has stepped outside the confines of what the law allows.

One area where this can be particularly true is the pretrial discovery process. Defense attorneys might demand a wide array of things, including many personal medical records. Is it frustrating? Yes. Is it intrusive? Yes. Is it legal? As one recent wrongful death case that originated here in Portland demonstrates, not necessarily.

The lawsuit originated after the passing of H.D., a boy born prematurely who died of cardiac arrest at the age of five months. The boy’s mother, acting in her capacity as the personal representative of the estate, sued for wrongful death, alleging medical negligence.

In a wrongful death lawsuit under ORS Section 30.020, you can seek various types of compensation. One form is economic damages. Generally, this form includes things like lost wages, lost benefits (like 401k and pension benefits,) burial/funeral expenses, and medical expenses. Another form is noneconomic damages. This generally included things like loss of companionship, as well as pain and suffering.

In the Portland case, the boy’s estate sought both types of damages. One of the doctors the estate sued, during pretrial discovery, asked for the disclosure of a substantial array of medical records. The doctor sought all the “existing medical records and reports of all health care practitioners or experts who have examined [the decedent’s] beneficiaries,” all the “psychological, psychiatric and/or counseling records for [the decedent’s] beneficiaries,” and “all prescription records for beneficiaries reflecting medications to treat symptoms and conditions relevant” to the estate’s claims.

The records the doctor sought were potentially incredibly invasive, including information related to treatment for alcohol/drug use, addictions, and mental health care, as well as marital/couples counseling. And he sought disclosure of those records from everyone who qualified as a statutory beneficiary of the boy’s estate, arguing that the information was discoverable under Rule 44 C of the Oregon Rules of Civil Procedure.

The Rule Has Only Narrow Coverage

The Oregon Supreme Court ultimately ruled against the doctor’s discovery request. Contrary to the doctor’s assertions, the deceased boy’s beneficiaries were not, for purposes of discovery, parties to the lawsuit. Only a “litigant who has authority to control the proceedings” qualifies as a “party,” according to the court. Because the personal representative of the deceased’s estate was the only person who held the “authority to control the proceedings,” the beneficiaries fell outside the rule’s coverage.

Additionally, the mother also was not required to turn over her records. Although she was a statutory beneficiary and the person who had the authority to control the litigation of the wrongful death case, her capacity as personal representative was “legally distinct for the purposes of litigation” from her capacity as a beneficiary. As a result, none of the boy’s beneficiaries were required to turn over their privileged records.

Litigating a wrongful death case is inevitably painful as it represents a reminder of a loved one who’s gone and shouldn’t be. The thoughtful and knowledgeable Oregon wrongful death attorneys at Kaplan Law LLC pride ourselves on providing to the families of those victims legal representation that is both personalized and empathetic as well as determined and zealous. Call us today at (503) 226-3844 or contact us online to set up your free consultation.

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email:
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