We granted leave in this medical malpractice case to consider the trial court’s denial of plaintiffs’ motion to compel the production of certain documents. Interlocutory review is warranted because of the damage to plaintiffs’ case if discovery is denied.
Decedent had been treating with Dr. O’Brien since 1972. Around August 28, 1981, decedent went to O’Brien’s office with various physical complaints. O’Brien scheduled him for a complete gastrointestinal (gi) study. For four days in the following two weeks, decedent went to defendant Bi-County Community Hospital on an outpatient basis for radiologic testing. O’Brien obtained the x-rays from Bi-County and, apparently relying on the radiologist’s interpretation, concluded that decedent was not suffering from a malignancy. After reviewing the x-rays himself, O’Brien completely ruled out a gastrointestinal malignancy. Decedent continued treating with O’Brien until November 20, 1981. By that time, O’Brien believed that decedent did, in fact, have a malignancy.
After conferring with a gastroenterology specialist, O’Brien concluded that, although it was not an emergency, decedent should be hospitalized. The specialist agreed to take care of decedent’s admission to Bi-County. However, the hospital was unable to admit him for a week or more. Decedent’s wife consulted with another physician and decedent was immediately admitted to Beaumont Hospital on November 23, 1981.
In their complaint, plaintiffs allege negligence on behalf of Bi-County and its employees by failing to diagnose decedent’s cancer, failing to order additional testing, failing to admit decedent as a patient as requested by O’Brien, failing to report decedent’s condition to O’Brien, failing to properly prepare or instruct decedent prior to preparing the gi examination, and failing to prohibit O’Brien from attempting to admit patients such as decedent, or attempting to surreptitiously admit patients through other physicians when O’Brien did not have full admitting privileges at Bi-County.
On February 11, 1984, plaintiffs 1 filed a notice to produce certain documents and items. The request to produce was not honored and, on September 12, 1984, plaintiffs filed a motion to compel production or, in the alternative, for an in camera inspection of the documents. The motion was brought pursuant to GCR 1963, 310, now MCR 2.310. Defendants subsequently produced some of the documents, but filed written objections to a number of the requests.
On May 10, 1985, plaintiffs renewed their motion, but brought the motion under the recently adopted court rules, specifically MCR 2.302(B), 2.305(B), 2.306(B), 2.310, 2.313, and 2.314(D). Plaintiffs sought production of the documents not yet voluntarily produced by defendants.
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Plaintiffs ac
For reasons that will become apparent, we must first determine whether the 1963 court rules or
These rules take effect on March 1, 1985. They govern all proceedings in actions brought on or after that date, and all further proceedings in actions then pending. A court may permit a pending action to proceed under the former rules if it finds that the application of these rules to that action would not be feasible or would work injustice.
Thus, the norm is to apply the newly adopted court rules to pending actions unless there is reason to continue applying the old rules. In this, defendants argue that the old rule pertaining to discovery, namely GCR 1963, 310, should be applied to this case since it was the controlling rule at the time of plaintiffs’ initial request and that injustice would result if the new rules were applied.
Defendants’ first argument, that GCR 1963, 310 should control since that was the rule in place at the time plaintiffs first brought the motion to produce, is unpersuasive. We are not faced with a situation in which a case or an issue was disposed of under the prior court rules and a party seeks to reopen the question under the new rules where the new rules would effect a different result. See
Genesee Merchants Bank & Trust Co v Bourrie,
Defendants also argue that application of the new rules would work an injustice as to defendants. Defendants do not explain what this "injustice” is, but presumably it is that the new rules may be more favorable to plaintiffs than the old rules.
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However, an injustice is not present merely because a different result would be reached under the new rules. Rather, we believe the type of injustice that MCR 1.102 concerns itself with is that which is caused by a party’s reliance on the prior rules. That is, an injustice is committed where a party acts, or fails to act, in reliance on the prior rules and his action or inaction has consequences under the new rules which were not present under the old rules. See
Solosth v Pere Marquette R Co,
Since it is feasible to apply the new court rules and no injustice will result by applying them, we shall proceed by applying the 1985 court rules.
Although our resolution of this issue will be based on the 1985 court rules, we must nevertheless consider the 1963 rules. GCR 1963, 310.1(1) provided for the trial court to order the production of documents upon motion of any party. Although
Plaintiff contends that the new court rule governing discovery of documents and things, MCR 2.310, has eliminated the good cause requirement. Plaintiff concludes that it need not demonstrate good cause for the production of the requested documents.
The staff note to MCR 2.310 states that it is based on rule 34 of the Federal Rules of Civil Procedure. As originally adopted in 1938, FR Civ P 34 required a showing of good cause by the moving party for the production of documents and things. The federal requirement of good cause subsequently became considered as an undesirable limitation for three reasons: (1) no one knew what it meant; (2) it led to confusion between trial preparation materials and other classes of documents and things; and (3) except for trial preparation materials it had little effect in actual practice. See 8 Wright & Miller, Federal Practice & Procedure, § 2205, p 594.
The federal rule was amended in 1970 eliminating the good cause requirement. Under the present rule, any document or thing which is not privileged and which is relevant to the subject matter involved in the pending action is freely discoverable upon request. FR Civ P 26(b), 34. Rule 26(b) protects privileged documents, documents assembled in preparation for litigation, and documents
Under the Michigan rules, as under the federal rules, protection is provided to the parties from whom production is sought by the more specific provisions of MCR 2.302(B) relating to materials assembled in preparation for trial and to experts retained or consulted by the parties. Many Michigan cases in which a showing of good cause was required for production involved documents prepared in preparation for litigation. See e.g.,
J A Utley Co, supra; Peters v Gaggos,
With respect to nonprivileged documents and things, and documents not assembled in preparation for trial, the Advisory Committee on the 1970 amendment to FR Civ P 26 aptly noted, "[ajpart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege.” Advisory Committee Note to the 1970 amendment of Rule 26(b)(3), 48 FRD 500. Without more, discovery should not be less available where relevant, nonprivileged information is contained in a document than when such information is lodged in the memory of a witness. Crowe v Chesapeake & O R Co, 29 FRD 148, 150 (ED Mich, 1961). These findings are no less applicable to nonprivileged documentary materials sought to be discovered in Michigan.
Finally, as noted above, MCR 2.310 is based on FR Civ P 34. The rule adopts the federal formula
We now turn to consideration of the discoverability of the documents in question. Plaintiffs originally sought production of eighteen categories of documents. Defendants agreed to produce hospital rules and regulations in effect during August and September, 1981, relating to various aspects of the administration of a gi examination. Defendants objected to the remainder of the requests on the basis of relevancy, materiality and privilege. Plaintiffs then filed a renewed motion to compel the production of documents or, in the alternative, for an in camera inspection of the documents to which defendants objected.
Documents and things which are not privileged and which are relevant to the subject matter involved in the pending action are freely discoverable upon request. MCR 2.301(B); MCR 2.310(A). The party submitting the request may move for an order compelling discovery with respect to an
First, we consider defendants’ claim of privilege. Defendants object to the production of a number of the documents because those documents are subject to a statutory privilege.
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Because of the procedural posture of this case, it is impossible for us to determine what privilege, if any, may attach to these documents. This issue must first be resolved by the trial court after holding an in camera evidentiary hearing. See
Monty v Warren Hospital Corp,
Next, we consider the issue of relevancy. To be discoverable, documents must be relevant. MCR 2.302(B). The allegations in plaintiffs’ complaint are directed to the care and treatment rendered patients, whether they are inpatients or outpatients, who are treated at the hospital. Hence those requests for documents relating to rules, regulations and guidelines on the selection of hospital medical staff, the nature and quality of patient care rendered, the operation of the department of radiology, the method of review of the department of radiology staff, and procedure followed by any entity assuring quality care is rendered in the department of radiology are all relevant with regard to the quality of care rendered by the hospital.
Similarly, documents relating to the hiring,
Documents listing the pattern of staff organization or management, and listing the people associated with the department of radiology are relevant as they will lead to evidence concerning all personnel who rendered treatment to plaintiff.
The bylaws of the hospital are, for the most part, irrelevant on the issue of the quality of care rendered plaintiffs’ decedent in defendant hospital. However, the bylaws are relevant insofar as they set forth the purpose of the review of members of the hospital staff. If the bylaws provide that the purpose of the review function is to mete out discipline to physicians providing inadequate health care, then that part of the review conducted by the reviewing entity is not protected by the statutory privilege found in § 21215. 6 Hence the bylaws are relevant and discoverable as they are reasonably calculated to lead to the discovery of documents requested by plaintiffs.
Contracts, leases or agreements between the hospital and O’Brien, or the hospital and another individual or entity providing radiology services are relevant for providing information concerning the responsibility for purchasing and maintenance of x-ray equipment and the staffing of the department of radiology.
Written rules and regulations concerning the chain of command for reporting incidents or medically imprudent care are irrelevant for the purpose of determining the quality of care rendered in
Policies of insurance covering the hospital, the board of directors, O’Brien and the department of radiology are discoverable under MCR 2.302(B)(2).
The names of the members of the board of trustees are irrelevant on the issue of the quality of care rendered in the hospital. Thus, they are not discoverable.
Finally, defendants have agreed to provide plaintiffs with the complete medical record of the care of decedent. The medical record index is relevant to determining if the complete record was produced and, therefore, is discoverable.
To summarize, documents related to the chain of command and the names of the hospital’s board of directors are irrelevant and the trial court’s order is affirmed with respect to these documents. 7 In all other respects, the order of the trial court is reversed. As for those documents which defendants claimed are privileged, the trial court shall conduct an in camera hearing to examine the documents and determine the existence, if any, of a privilege. The trial court shall order the production of those documents it determines to be relevant and nonprivileged. With respect to all other documents, the trial court shall enter an order compelling their production.
Reversed in part and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to plaintiffs.
Notes
Although only the personal representative takes an appeal, all plaintiffs brought the discovery request and subsequent motions.
Among the documents still sought by plaintiffs were
(1) The complete medical record of decedent,
(3) The hospital medical record index or other index evidencing the medical record system,
(4) By-laws of the hospital in effect in August and September, 1981,
(5) Hospital rules, regulations and guidelines,
(6) Hospital directives relating to the selection of the medical staff and granting of medical staff privileges, the nature and quality of patient care rendered at the hospital, the administration and operation of the department of radiology, the proper performance of gi examinations, the review of staff physicians, and the review of the radiologic care provided,
(7) Any documents relating to reports made to the state licensing or health department with regard to disciplinary action taken against any staff member relevant to the care of decedent,
(8) Documents relating to O’Brien’s admission to the hospital medical staff, and review of O’Brien’s qualifications,
(9) Documents relating to peer review and incident reports,
(10) Information with regard to the chain of command followed by personnel in reporting incidents of medically imprudent care,
(11) Names of hospital trustees in 1981,
(12) Documents evidencing the pattern of staff organization or internal management,
(13) Insurance information,
(14) Contracts, leases or agreements in existence in August and September, 1981, between the hospital and any other party providing radiology services or ancillary radiology services,
(15) Any documents relating to the approval, admission, credentials and review of any party providing radiology or ancillary radiology services,
(16) Documents relating to the hiring, training, supervising, and reviewing of the radiology department technicians,
(17) Documents or material routinely handed or provided to patients admitted,
(18) Documents relating to the names of all persons associated with the radiology department, and
(19) Accreditation information.
See discussion of this issue, infra.
See MCL 333.21513; MSA 14.15(21513), MCL 333.21515; MSA 14.15(21515), and MCL 333.20175; MSA 14.15(20175).
We do note that, with two exceptions, defendants’ claim of privilege, at first blush, appears strong. However, we are skeptical that privilege applies to the hospital’s rules and regulations or to documents related to the hospital’s accreditation.
MCL 333.21215; MSA 14.15(21215).
More specifically, the items in paragraphs 8 and 9 of plaintiffs’ February 7, 1984, document request.