Title 12 O.S.2001 § 3235, see note 1, supra, statutorily imposes a waiver of physician-patient privilege as to information concerning the health and medical history relevant to matters which the plaintiff has placed at issue. See also, Seaberg v. Lockard, 1990 OK 40, ¶ 3, 800 P.2d 230; Robinson v. Lane, 1971 OK 9, ¶¶ 5-7, 480 P.2d 620. ¶ 19
In Herbert v. Chicago, Rock Island and Pacific Railroad Company, 544 P.2d 898 (Okl. 1975), the court ruled that there was nothing in the statute granting the physician-patient privilege which prohibited a trial court from granting a continuance to allow a defendant the opportunity to depose plaintiff's physician after the plaintiff had waived the privilege during trial. In Robinson v. Lane, 480 P.2d 620 (Okl. 1971), the court ruled that a plaintiff seeking recovery for damages sustained in an automobile accident waived the privilege by testifying as to the nature and extent of his injuries, thus rendering evidence relating to the time and place of his treatment and the testimony of his attending physician admissible. Keen's testimony relating to her use of a sphygmomanometer to periodically check Robert Keen's blood pressure over a period of 10 to 15 years clearly "opened the door" for further cross-examination relating to the manner and degree her deceased husband was being treated for blood pressure related problems.
For its effectiveness neither requires nor depends on an antecedent judicial declaration.Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230, 231-232; Robinson v. Lane, 1971 OK 9, 480 P.2d 620, 621-22, see also Brandt v. Medical Defense Associates, 856 S.W.2d 667, 669-670 (Mo. 1993); Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292, 300 (1993) ("Courts have generally held that filing a personal injury claim waives the physician-patient privilege as to information concerning the health and medical history relevant to matters which plaintiff has placed at issue").Seaberg v. Lockard, supra note 1.
In Avery v. Nelson, supra, we recognized statutory waiver occurs only when plaintiff voluntarily offers himself as witness and held that neither filing of petition by plaintiff putting his physical condition in issue, nor defendant's taking of plaintiff's deposition before trial, constituted waiver of the privilege. However, defendant cites Robinson v. Lane, Okla., 480 P.2d 620, for proposition plaintiff waived privilege by testifying at trial concerning injury and treatment. In the cited case issue was whether plaintiff, by offering himself as witness at trial and testifying concerning injury and treatment, waived physician-patient privilege as to doctors who treated plaintiff for injuries received in the accident, but were not called by plaintiff as witnesses.
This court has never before considered how far a patient's testimony may extend before he may be deemed to have waived the patient-physician privilege. However, the issue was recently presented to the Supreme Court of Oklahoma in Robinson v. Lane, 1971, Okla., 480 P.2d 620. In Robinson, the plaintiff offered himself as a witness and testified as to the nature and extent of injuries he sustained in an accident.
Defendants recognize that Avery v. Nelson, Okla., 455 P.2d 75, is in point and adverse to their position. They believe, however, that the later case of Robinson v. Lane, Okla., 480 P.2d 620, has modified the Avery case to permit the relief requested. We are unable to agree.
The trial court did not err in finding that there was no waiver of the privilege and Browning was not entitled to the records. 12 O.S. 2001, § 2503[ 12-2503]; Robinson v. Lane, 1971 OK 9, 480 P.2d 620, 622. 12 O.S. 2001, § 2511[ 12-2511].