298 Or. 706, 696 P.2d 527 (1985)
In 1959, plaintiff Ramona Elwess, also known by her maiden name Ramona Jean Peek, gave birth to a daughter at St. Charles Medical Center in Bend, Oregon.1 She was unmarried at the time.2 Her physician, Dr. Harry E. Mackey, registered her in the hospital as “Mrs. Jean Smith.”3 The next day, she consented to the child’s adoption by Leslie and Shirley Swarens of Bend, who named her Leslie Dawn.4 The hospital’s medical records concerning the birth were sealed and marked to show that they were not public.5 Only Ramona’s mother and husband and Dr. Mackey knew about the daughter she had given up for adoption.6
Twenty-one years later, the daughter, now known as Dawn Kastning, wished to establish contact with her biological mother.7 Unable to gain access to the confidential court file of her adoption, Dawn sought out Dr. Mackey, who agreed to assist her.8 Dr. Mackey gave Dawn a letter which stated that he had registered Ramona Jean Peek at the hospital, that although he could not locate his medical records, he remembered administering diethylstilbestrol to her, and that the possible consequences of this medication made it important for Dawn to find her biological mother.9 The latter statements were untrue and made only to help Dawn to breach the confidentiality of the records concerning her birth and adoption.10 In 1982, hospital personnel, relying on Dr. Mackey’s letter, allowed Dawn to make copies of the plaintiff's medical records, which enabled her to locate the plaintiff, now Ramona Humphers.11
The unexpected development upset the plaintiff and caused her emotional distress, worry, sleeplessness, humiliation, embarrassment, and inability to function normally.12 She sought damages from the estate of Dr. Mackey, who had died, by this action against defendant First Interstate Bank of Oregon as the personal representative.13 Her complaint alleged five different theories of relief.14 The circuit court granted defendant’s motion to dismiss the complaint on the grounds that the facts fell short of each theory of relief and ordered entry of judgment for defendant.15 On appeal, the Court of Appeals affirmed the dismissal of the first, second, and fifth counts but reversed on the third and fourth counts.16 The Supreme Court granted review.17
Whether the facts alleged in the complaint state a claim for invasion of privacy by intrusion upon seclusion?18
Invasion of privacy by intrusion upon seclusion requires an offensive prying into personal matters that the plaintiff reasonably has sought to keep private.19 The theory does not fit when the defendant failed to keep a confidence rather than prying into facts he already knew from his professional role.20 Anyone without an obligation of secrecy could disclose the facts without liability.21
No. Dr. Mackey did not approach the plaintiff or pry into any personal facts that he did not already know from his role as attending physician at the birth.22 The claim centers on his failure to keep the secret of the adoption rather than any intrusive prying.23 The statutes closing adoption records establish the privacy interest, yet the theory of intrusion upon seclusion does not extend to disclosure by one who learned the facts through a confidential professional relationship.24 Anyone without an obligation of secrecy could have told Dawn Kastning the facts without committing the tort of invasion of privacy.25
The facts alleged in the complaint do not state a claim for invasion of privacy by intrusion upon seclusion.26
Whether the facts alleged in the complaint state a claim for breach of a confidential or privileged relationship?27
A physician owes a nonconsensual duty of confidentiality imposed by statute such as ORS 677.190(5), which provides for disciplining a physician for wilfully or negligently divulging a professional secret.28 Unauthorized disclosure of confidential information obtained in a confidential relationship gives rise to tort damages.29 Defenses of privilege are determined by external standards.30 Disclosure solely to satisfy the curiosity of the adoptee is not privileged given the statutes mandating secrecy of adoption records.31
Yes. Dr. Mackey attended the birth under circumstances creating a confidential professional relationship and later disclosed the information using a false pretextual letter about diethylstilbestrol to obtain access to the sealed hospital records.32 The statutes ORS 7.211 and ORS 432.420 mandate secrecy of adoption records except upon court order.33 No privilege exists to disregard the professional duty imposed by ORS 677.190(5) solely to satisfy the curiosity of the person given up for adoption.34
The breach of this externally imposed duty of confidentiality therefore supports a tort claim for damages.35
The facts alleged in the complaint state a claim for breach of a confidential or privileged relationship.36