Lawrence v. Bay Osteopathic Hospital, Inc

Bay HOSPITAL, BAY LAWRENCEv OSTEOPATHIC INC 20, 1988, Lansing. Docket 103178. No. Submitted October Decided 21, 1989. February during Karl Harold Lawrence suffered a cardiac arrest his admis- Bay Osteopathic Hospital sion to in October of 1983. Mr. damage hospital Lawrence also suffered brain when the staff allegedly adequately respond and others failed to to the cardiac Lawrence, Evelyn individually guardian arrest. and as of Karl Lawrence, incompetent person, an their nine children filed malpractice against Bay Osteopathic Hospital, a medical action Inc., Bay and others in Circuit Court. Mr. Lawrence died and his estate was substituted as a in his stead. During pretrial proceedings, attorneys two for the defendants Woolliscroft, met with Dr. one of Mr. Lawrence’s physicians University Michigan Hospital at the where Mr. discharge Lawrence had been transferred after his Osteopathic Hospital. Plaintiffs intended to call Dr. Woolliscroft expert witness, meeting as an and the between the defense attorneys permission and Dr. Woolliscroft was without the plaintiffs’ meeting, counsel. At the time of that the defense attorneys had not been informed that Dr. Woolliscroft was to expert plaintiffs. subsequent deposition, be an witness for At a Dr. Woolliscroft testified that the conference with the defense attorneys thoughts opinions made no difference in his about attorneys improperly the case and that had not tried to any way. influence him in Plaintiffs filed a motion for default judgment, sanctions, invocation of and for extension of time to expert meeting name witnesses on the basis that the attorneys Dr. Woolliscroft and the defense constituted a willful attorney-client relationship and intentional breach doctor-patient relationship, plaintiffs’ was an invasion of attorney’s product, court, work and was unethical. The William J., Caprathe, attorneys question found that had physician-patient privilege attorney-client and the _violated References 2d, Physicians, Surgeons, Am Jur and Other Healers 169. § Attorney See the Index to Annotations under or Assistance of Attorney; Physician-Patient Privilege. 175 sought product improperly work to obtain the had upon imposed sanctions The court also counsel. time to additional name and allowed counsel M.D., Shrestha, expert and Dhana Dhana witness. Defendants P.C., Shrestha, M.D., appealed. Appeals The Court of held: plaintiff’s parte by of a 1. Ex interviews defense counsel pres- treating plaintiff’s and physician consent without meeting plaintiffs any at face-to-face ence of counsel treating physician prohib- plaintiffs are counsel and defense concluding that not defense The trial court did err ited. conducting parte improperly in an ex interview counsel acted plaintiffs consent. Dr. Woolliscroft without of against by imposition trial defendants 2. The of sanctions was was not warranted because state law court changing Dr. the time defendants contacted Woolliscroft. part. part Affirmed in and reversed J., agreed that Mackenzie, not been sanctions should have portion imposed case dissented from that of in this but parte by

majority’s opinion finds that ex interviews which plaintiffs physician prohib- defense counsel plaintiffs consent to the ited the absence of interview physician-patient privilege find that the was counsel. She would attorney- case. would also hold that waived this She by the could not be violated interview between client attorneys Dr. Woolliscroft and that the record defendants’ and product plaintiffs’ finding support work does attorney disclosed. — Ex Physicians Surgeons Physician-Patient Privilege — Parte Interviews. plaintiffs treating parte of a Ex interviews defense counsel presence plaintiffs without the consent and meeting counsel at face-to-face between defense plaintiffs treating prohibited. physician are counsel (by Kennedy Patterson, Gruber, M. & Gill Brian Kennedy), plaintiffs. (by Brooker,

Smith & P.C. Richard G. Smith and Martin), C. Jonathan for defendants. Opinion of the Court Kelly, P.J., J. and Mackenzie

Before: Michael B. JJ. and S. Miller,* Shrestha, Dhana B. J. Defendants S. Miller, appeal Shrestha, M.D., P.C., Dhana as of

M.D. and right portion judg- an order of a by Bay Judge ment issued Circuit William upon Caprathe imposing sanctions defendants Bay Osteopathic Hospital. Shrestha and appeal the trial court The issue on is whether determining erred in that defense counsel acted conducting parte improperly in an ex interview of treating physician Woolliscroft, Dr. sequent decedent’s sub- alleged malpractice, to defendants’ with- permission out of consent and without the plaintiffs’ attorney. Hospital recent case of v Sinai Jordan Inc,

Detroit, 328; 429 NW2d 891 parte examined the issue interviews treating physicians by opposing of counsel. The parties presented arguments in Jordan the same by parties present the in advanced the case. We reasoning agree concur with the in Jordan and holding parte its that ex de- with interviews plaintiff’s treating physician fense counsel of a plaintiff’s presence without the of consent and plaintiff’s meeting counsel at face-to-face be- plaintiff’s treating phy- tween defense counsel and prohibited. sician are

We hold that the trial court in instant case concluding did not err in that defense counsel conducting improperly parte acted in an ex inter- Dr. view of Woolliscroft without consent. imposition However, that we believe of sanc- against by the trial court tions warranted in this case. defendants was At Dr. the time defendants contacted Woollis- assignment. judge, sitting Appeals by * Circuit on the Court of App 61 175 Mich by Mackenzie, J. Dissent Partial law changing. Case law was croft, of the the state interview parte ex counsel’s that defense suggested not necessar- treating physician plaintiffs of a Clay, e.g., Melynchenko See, inappropriate. ily (1986), lv den 193; 393 NW2d App 152 Mich in Jordan noted This Court Mich 875 since impression of first was one that issue Rules. Court Michigan the new of enactment court’s order as Therefore, the trial we reverse defendants against sanctions of imposition Osteopathic Hospital. Shrestha in part. in and reversed part Affirmed Kelly, P.J., concurred. J. Michael (dissenting part). agree I Mackenzie, and case procedures discovery that majority changing recently have relating thereto been law of the regardless Michigan. Accordingly, uncertain sub- presently ultimate outcome issue, I to the concur with relating law stantive sanctions the majority conclusion in this imposed not be defendants should against case. dissent, however, agree- the majority’s

I v Sinai Jordan holding panel’s ment with the Detroit, Inc, 328; 429 Hospital interviews parte defense counsel with in the absence consent prohibited counsel. by plaintiffs

interview Michigan adoption to the prior The law permitting Rules of 1985 was consistent Court interviews with parte to have ex defense counsel In Gailitis v physicians. the plaintiffs (1966), Bassett, 146 708 382; NW2d App Mich authorizing defen- found "no error this Court plaintiffs physician.” dant’s counsel to interview 1989] supra Jordan, 384. indicates that

Mich to allow the defen Court relied on Gailitis this treating physicians to interview the dants unpublished Rubenfire, order of the Court Lusko v (Docket Appeals, 31, 1983 Nos. of 71222, released October 71223). peremptory order Lusko involved a the trial court a case where to direct plaintiff physician-patient had not asserted panel privilege. The noted: privilege, party valid a "Absent assertion of a right any witness, has the interview Socha v Passino, [275 may albeit the witness choosenot consent to an Responsibil- interview,but see of Professional Code DR7-109(B), ity, to the in which event resort must be had Chapter compulsoryprocedures 30 of the General Court Rules.” practical parte

Moreover, matter, inter- as a procedure views were routine under the former general practice court rules. The basis for this right prepare for trial inter- viewing any of a witness absent the assertion valid privilege. supra. Socha, panel ultimately

The Jordan concluded that parte Gailitis did not sanction ex interviews and that, did, if it even it has been overruled Accepting new court rules. Jordan view adoption the issue treated therein a case of first court makes the new rules

impression, analysis reasoning by examining of its must start the court rules.

Initially nothing it should be observed that suggests they the new court rules were in- discovery formerly tended to restrict allowed. entire thrust of the new court rules is to further Michigan’s discovery pro- already open liberalize specifically discovery of cess. MCR 2.314 authorizes J. Dissent Partial re- tangible evidence records and other medical of a the or condition physical mental garding of either question it the does not address party; Under depositions. for preparation or depositions Rules, the cause good Court Michigan the new has discovery been aban- requirement pretrial for to doned, things, relevant privileged, and all not the action pending involved in subject the matter Davis v upon request. freely discoverable O’Brien, App 495; 393 NW2d 914 also 2.302 426 Mich 869 See MCR lv den relating scope to of discovery. is nar- physician-patient privilege

The statutory MCR language provides row.1 The broader 2.314 part: in relevant

(B) Assertion; Waiver; Privilege; Effects.

(1) privilege may A who has a valid assert party privilege prevent discovery of medical relating physi- information to or her mental or his privilege The must be asserted cal condition. statute, 27A.2157, privilege 600.2157; MCL MSA states: person practice surgery duly No authorized to medicine or any may shall be to disclose information which he have allowed character, acquired attending any patient professional in his necessary pre- which to enable him to and scribe information physician, patient any for such as a or to do act for him Provided, surgeon: however, patient That in case as shall personal injuries, such bring against any any to for an action defendant recover any malpractice, if such or for shall behalf, produce any physician as a in his own who has witness condition, injury, any treated him or disease for such for or alleged, malpractice reference such shall be to which he for, provided deemed have waived hereinbefore physicians, may him for as to such or all other who have treated further, injuries, or Provided That after disease condition: patient, upon question the decease of such a contest admitting patient probate, such at law will of heirs will, patient, proponents such of his of shall whether contestants personal representatives be of such deceased deemed be waiving patient created. purpose hereinbefore Mackenzie, Partial Dissent A response under MCR 2.310. party’s written is waived privilege action, timely asserted purposes for the is not waived but action. other (2) otherwise, party if a the court orders Unless subject to a the medical information is asserts that pre- effect of privilege and the assertion has the venting information discovery of medical otherwise 2.302(B), may MCR discoverable under not thereafter any physical, present or introduce relating to documentary, or testimonial evidence physical or party’s history medical or mental the condition. mal- and Jordan involve Both the instant case physical practice condition actions which plaintiffs was crucial. In or decedent treating physicians’ Jordan, the records of the diagnosis treatment had been made available and parties defense counsel filed a motion to all for when treating parte meetings with informal plaintiffs response physicians. plaintiff stated that the The asserting privilege as to medi- was not testimony physi- or the cal records present interrogatories case, had been In the cians. treating physicians plaintiffs, served had been furnished a written authorization2 2The authorization states: TO PHOTOCOPY RECORDS

HOSPITAL OR DOCTORS AUTHORIZATION Arbor, Hospital, Hospital/Doctor: University Ann Name of Michigan

Name of Patient: Karl Harold Lawrence Road, Michigan Bay City, Address: 3421 Lauria I, undersigned, hereby any authorize or nurse me, hospital con- at which I have been who attended fined, _ Service, Disposition to furnish or Records Detroit, Michigan Building, 1248 Free Press past may requested regarding my and all information which or be present physical therefor. condition and treatment rendered App 61 Dissent Partial records medical to defendants providing physi- one of interview with the informal when had cases, defendants In both place. cians took information of medical requested production cases, medi- 2.310. In under MCR both documents furnished. had been cal records been asserted privilege case had the In neither the re- but rather request, to such response clear The produced. had been records quested 2.314(B)(1) provides MCR language of "[t]he in the written party’s asserted must be privilege timely A MCR 2.310. under response in that actionWhile is waived this asserted 2.314(B)(1) it pivotal, to be appears MCR portion Jordan panel or the by the was not considered I find that under in this case. would majority 2.314(B)(1), rule, MCR new in Jordan in this case. waived both United in Schuler v support view finds My 1986). States, (WD Mich, plain- 113 FRD in Schuler died airplane tiffs’ decedents prove pilot, sought The defendants crash. decedents, from medi- suffered one of the result- judgment affected his cal conditions which The defendants in the crash. ing causing and copies of the plaintiffs provided, and the requested, physi- records from his pilot’s medical sought Subsequently, one of the defendants cians. the ob- physicians these depose to privilege. asserting physician-patient the jected, that, Schuler Michigan under The Court concluded Lawrence, Signature: Patient’s Karl Harold Person, Incompetent Mentally a Lawrence, Evelyn Guardian Franklin, Petrulis, Bigler, Berry & Johnston Requesting Firm Bigler. By: E. Bruce v 1989] privilege and, once

law, waived, waived had been in the action. The not reasserted could be Court stated: case, statute and court rules In this the state necessary preserve to procedures to the

conflict as the privilege. plain lan- The physician/patient privilege indicates that the is guage of the statute personal injury case when the waived a at trial to produces any physician as a witness testify as to treatment present injury. for such The 2.314(B)(1) Rule, provides Michigan MCR Court privilege must be asserted a written that response request produce, to or it is waived to a Although Michigan purposes of the action. statute, held, pursuant to the that courts have involuntarily waived failure privilege cannot be trial, prior it to the decisions were ren- to assert prior inception of the new court rules. dered to Stores, Inc, See, Food 30 Mich Eberle v Savon (1971). [186 Michigan Supreme It clear that Court is procedures 2.314 intended that MCR control physi- of and waiver of the involved assertion cian/patient privilege. promulgated The rule was provi- conflicting statutory in full awareness of the App 175 privi- the procedures for assertion of the control instance, privilege the lege and this voluntarily Wilson has timely asserted. Plaintiff occasions produced documents several medical writing privilege in as re- asserting the without therefore quired by the rule. Court court privilege of physician/patient concludes decedent Richard Wilson the has been waived permits depose further defendant Court Doctors Brubaker and Aardema and/or Cessna

call them at FRD as witnesses trial. [113 520-521.] makes court rules Jordan much new opportunity giving the to assert disregards privilege time, at but privilege unless it can be asserted time has previously Moreover, been Jordan and the waived. privilege instant seem envision one respect to records and another with respect personal is, however, interviews. There privilege. plaintiffs, by but one medical When permitted authorization, of medical release asserting privilege, privi- records instead of regard subsequent lege was waived with to all proceedings in the action. waived,

Once a valid has been as in case, Jordan and instant there is no sound deny attorneys opportunity reason to to inter- preparation view witnesses in for trial. Jordan by ascribing circumvented this conclusion to the "fiduciary.” physician the role of Such a character- unsound, ization is however. As Court deter- this Melynchenko Clay, App 193, mined in 152 Mich 197-198; lv den (1986), any concept relationship "fiduciary” physician-patient privilege: is subsumed The relation confidence, faith, trust, patient, requiring good 71 v by Mackenzie, J. Dissent Partial treatment diagnosis and proper on the founded is of medical Permitting physi- a problems. traditionally regard to matters testify with cian to effect no deleterious have privileged should no should have patient and of a treatment his during the disclosures patient’s chilling effect on a manner, relationship. In this of their course policies relationship be- fiduciary underlying patient, which tween here, testimony Fleischman’s bar claims should physician-patient underlying the policies and privilege treating physician’s a only bar to statute, traditionally the parallel. closely are testimony, interests, supports the same advances Each protects adequately the statute the conclusion relationship. [Emphasis physician-patient added.] physi- waived, the has been

Once duty any to witness. His like other cian is patient any greater other wit- than that no is Lilly duty Eli & truth. Doe v tell the is to ness: his (D 1983), leading case, DC, a Inc, Co, 99 FRD policies: carefully examines however, party to no proposition, general aAs proprietary resembling a litigation anything has evidence. Absent right to witness’s opponent’s access an entitled to restrict party no him, important witness, partial or to a by however allegiance. See notion of insisting upon some Edelstein, Corp v Machines Business International United (2d Cir, 1975); Gregory v 37, 41-44 526 F2d (DC Cir, 1966); Ed- States, 187-88 369 F2d (DC, 543, 551 LaVay, Co v 431 A2d Flynn mund J (McNaughton 1981); Wigmore, Evidence 8 J § 1961). knowledge has expert an whose ed Even rev by silenced purchased cannot be been ground Unless alone. him on that paying who is inquire, adversary may impeded by privilege trial, to learn any lawful manner advance of appropriate con- if other knows what witness satisfied, impose may alone ditions the witness expertise e.g., compensation for his time and payment of reasonable involved, expenses of Civil Procedure have while the Federal Rules acquir- provided ing sion, specific formal methods of certain compul- sources evidence from recalcitrant thought preclude the they have never been venerable, informal, discovery if tech- use of such niques parte interview of a witness who as 495; willing speak. Taylor, 329 US is 67 Hickman 385; (1947); 91 L Ed 451 see International S Ct Edelstein, Corp v 526 F2d at Business Machines States, 43-44; Gregory cf. v United 369 F2d at 187- 88; Drobny, 554 Trans-World Investments v P2d 1976). 1148, (Alaska, 1151-52 influencing potential testimony

The for trial is every prospective in contact between a inherent interlocutor, informal, or witness and an formal litigant may justifiably fear is an and what a attempt by improper adversary at influence for enough if it which there are sanctions occurs. See States, Gregory v United 369 F2d at 188. And entirely respectable there are reasons for conduct- ing deposition; it discovery interview vice is less logistical costly ing problems; likely and less to entail or schedul- it is spontaneity conducive to and way depositions be; candor in a can it never eliminating a cost-efficient means non-essential completely. witnesses from the list Those are the reasons offered defendant it what would do physicians’ here but cannot for the inhibitions deriving from the of which are unwilling except deposition. to relieve them at privilege in The medical the District of Colum- Code, 14-307, bia has been codified at D.C. § provides, pertinent part, in both federal Columbia, and local courts in the District of surgeon "... . may or . . not be permitted, person without the consent of af- flicted, legal representative, or of his to disclose information, nature, any has confidential in its that he acquired attending professional a client in a capacity necessary and that him was enable by Mackenzie, the information capacity, whether in that act family or from his the client or from obtained charge him.” person persons or statutory The 14-307 Ann. D.C. Code § given for the com- to those purposes similar promote greater freedom of privileges mon law communication —to patient by physician and of confi- relationship with a "cloak covering the information prevent disclosure dence” and concerning in his might result patient which embarrassment, humiliation, disgrace. Wilson v or 1980). (DC, privi- Thornton, 416 A2d intended, however, to used as a be lege was never it party entitled to invoke by which a trial tactic timing advantage the and cir- to his may control he must of information of the release cumstances time. Cf. Edmund revealed at some inevitably see LaVay, 431 A2d at 551. Flynn Co v J refusing quali- implicit in or threat The inchoate speak posses- permission to to a witness fying operates to intimi- privileged information sion of date the posi- witness, placed in the then who is withholding divulging what he knows tion of his influ- species improper peril, is itself a wielding the so ence. It also enables progress in adversary’s privilege to monitor his presence each occa- by his preparing his case his own is revealed while sion such information scrutiny. The Court under no such preparation is privi- it an abuse of concludes that would be it in such a manner which lege to allow to be used purpose it exists. to the for which has no relation Doe analysis extensive adopted, has been after country from around the all the cases nearly Appelquist, 694 v in State ex rel Stufflebam point, v and Green (Mo 1985), 882, App, 886-888 SW2d Bloodsworth, (Del 1257, Super, 1258-1259 501 A2d 1985). rea- cogent that the more suggest respectfully

I the side of Doe courts and those soning lies on interviews. No parte prohibit do not which App 61 175 Mich Dissent Partial to consent to an obligation has Stanley, v 276; See Klabunde 384 Mich interview. (1970). expressed The concern 181 NW2d 918 Jordan, relationship the physician-patient that will fear that the physician chilled out of might be mental highly personal irrelevant but reveal information, predi- to be seems health physical assumption that defense counsel cated on the dual (pre- such irrelevant information likely is seek preparation, not of trial purpose, for the sumably and moreover embarrassing adversary) his but fishing in such cooperate would physicians that conduct assumption of unethical expeditions. This long recognized has Michigan to what contrary govern which human elementary principles as behavior, pre- will be namely, professionals that expected the ethical standards uphold sumed is on those who peers; them their burden by of their validity otherwise establish believe of the evidence. preponderance suspicions by Wagar supra Peak, Gailitis, citing (1871). held, claim, trial Plaintiffs further and the court interview violated parte the ex privilege. attorney-client privi- attorney-client disclosing confiden- lege prohibits attorney and his attorney tial communications is to purpose privilege client. The allow in the attorney client to confide his secure knowledge the communication will not be Hurr, disclosed. Kubiak v 465; The attorney-client the interview between by could be violated Only and the doctor. attorneys defendants’ attorney-client can violate the attorney to third communicating client’s secrets parties privi- Third are not bound parties. lege. 75 v by Mackenzie, J. Partial Dissent the of cases for a number

Plaintiffs have cited plain- communications proposition fall attorney expert plaintiffs’ tiffs’ medical However, privilege. attorney-client the within of case. to the facts this apply do not these cases Lipson, 367 1; Mich 116 v Lindsay in example, For by physi- a information obtained during of plaintiff the an examination cian from of her attor- request the performed the plaintiff because, effect, in privileged ney was deemed was infor- conveyed to physician information her plaintiff attorney. conveyed by mation as to communi- ruling made a similar This Court to the medical plaintiffs plaintiffs’ by cations Belcher, 344; Mich App expert McCarthy 340 NW2d McCarthy no Lindsay have

The of cases in those here since the application physicians whom went physicians cases were not litigation purposes for examinations case, contrast, In the instant for treatment. physician decedent’s doctor was discharge Bay Osteopathic Hospital. after his plain- The was retained to examine litigation. conjunction tiffs’ decedent and the trial court found allege Plaintiffs also the physician that defense counsel’s interview with attorney’s work constituted an invasion their of the court rules discov- product and a violation finding that support The record does not ery. disclosed. product plaintiffs’ attorney work personal product attorney of an work him. If he and can be waived attorney trial impressions to disclose his mental wishes third he the risk the third to a runs strategy it, or under inadvertently reveal either party may the record an adverse Here party. examination disclose evidence that interview does not 175 prejudiced any way. with the doctor deposition testified on the inter- doctor absolutely view with defense counsel made no opinions. deposition in his At the doctor difference was asked: "Did it make difference—did that thoughts your conference difference in make opinions you going bring or day?” here to- physician answered,

and the I "No.” would product attorney’s find violation of the work privilege under these facts. notes that sions and the committee intent of the rule is to indicate "require[s] party decide whether or assert 2.314, stage.” advisory note. discovery MCR The that "if a does committee further comments not assert the produce, intent where a court rule and statute conflict response request to a judicial it is waived.” Id. In addition to regard, general in this rule is proce- Schaeffer, dure, the court rule controls. Schaeffer (1981). App 452 More- 106 Mich NW2d 226] [308 over, Michigan held that rules of courts have involving judicial practice evidence are matters precedent procedure they take therefore Sheets, conflicting over statutes. Dahn v App 584 NW2d 547] [305 opinion Court the court rules

Case Details

Case Name: Lawrence v. Bay Osteopathic Hospital, Inc

Court Name: Michigan Court of Appeals

Date Published: Feb 21, 1989

Citation: 437 N.W.2d 296

Docket Number: Docket 103178

Court Abbreviation: Mich. Ct. App.