Domako v. Rowe

• Decision Date: 17 October 1991
• Docket Number: No. 89257,89257
• Citation: 475 N.W.2d 30,438 Mich. 347
• Parties: Carol Joyce DOMAKO and Thomas Domako, Plaintiffs-Appellants, v. Joseph ROWE and Garden City Medical Center, P.C., Defendants-Appellees, and Anapolis Hospital, Defendant. 438 Mich. 347, 475 N.W.2d 30
• Court: Michigan Supreme Court

Page 30

475 N.W.2d 30

Carol Joyce DOMAKO and Thomas Domako Plaintiffs-Appellants, v. Joseph ROWE and Garden City Medical Center, P.C. Defendants-Appellees and Anapolis Hospital, Defendant.

No. 89257.

438 Mich. 347, 475 N.W.2d 30

Supreme Court of Michigan.

Argued April 2, 1991.

Decided Sept. 6, 1991.

Rehearing Denied Oct. 17, 1991.

[438 MICH 349] Fieger and Fieger, P.C., Geoffrey N. Fieger, Dennis M. Fuller, Southfield, for plaintiffs.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C., Susan Healy Zitterman, Linda M. Garbarino, Detroit, for amici curiae, Michigan Hosp. Ass'n, Michigan Soc. of Hosp. Attys. and Michigan Soc. of Hosp. Risk Management.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by David J. Cooper, Rosalind Rochkind, Detroit, for amicus curiae Ass'n of Defense Trial Counsel.

Schureman, Frakes, Glass & Wulfmeier, Joseph K. Carley, Detroit, for defendants Rowe and GCMC.

Plunkett & Cooney, P.C., by John P. Jacobs, Detroit, for amicus curiae Michigan Defense Trial Counsel, Inc.

Kerr, Russell and Weber by Richard D. Weber, Catherine B. Edwards, Patrick J. Haddad, Detroit, for amicus curiae.

Michelle A. Thomas, Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C., Southfield, for amici curia William Beaumont Hosp., Henry Ford Health System, Lansing Gen. Hosp., Bronson Hosp., Butterworth Hosp., Mid Michigan Regional Medical Center and Blodgett Hosp.

Charles Chomet, Morton E. Schneider, Detroit, for Michigan Trial Lawyers Ass'n.

OPINION

MICHAEL F. CAVANAGH, Chief Justice.

We granted leave in this medical malpractice case to determine whether the physician-patient privilege was violated when defense counsel conducted an ex parte interview with the injured plaintiff's treating physician. We have concluded that no violation occurred, and we affirm the judgment of the Court of Appeals.

I

Joseph Rowe, M.D., performed a total abdominal hysterectomy and a right salpingo-oophorectomy (removal of fallopian tube and ovary) on Carol Domako. There was a large fibroid tumor on the lower anterior of Domako's uterus. Domako was discharged from the hospital on January 14, 1985, and shortly thereafter began experiencing urinary incontinence. The cause was later determined to be a vesico-vaginal fistula, an abnormal passage between the bladder and the vagina resulting from a hole in the bladder. Dr. Rowe referred Domako to Dr. Abbassian, a urologist, for repair of the fistula. Dr. Abbassian successfully repaired the fistula during surgery performed on April 17, 1985. After the second postoperative visit, Domako did not see Dr. Abbassian again.

On February 21, 1986, Domako filed a suit, alleging negligence by Dr. Rowe; Domako's husband raised a loss of consortium claim. The liability issue concerned whether Dr. Rowe had perforated the bladder during the hysterectomy, thereby causing the fistula, or whether the fibroid tumor pressing against the surface of the bladder caused a depletion of blood and a subsequent weakening of the bladder wall. In the initial stage of discovery, defense counsel subpoenaed relevant medical records. The request for Dr. Abbassian's medical records was made under MCR 2.310. Domako signed the authorization forms, and the records were received. Plaintiff made no objection to therequest. Defense counsel then met ex parte with Dr. Abbassian on April 13, 1987. At that meeting Dr. Abbassian explained his treatment and that he believed the cause of the fistula was ischemic necrosis, meaning that it had not been caused by any negligent actions by Dr. Rowe during the hysterectomy. Dr. Abbassian agreed to testify to that opinion at trial.

Mediation of the matter occurred on August 4, 1987, and the defendants set forth in their mediation summary that Dr. Abbassian would be giving opinion testimony regarding the cause of the fistula. The plaintiffs accepted the mediation evaluation of $35,000, but Dr. Rowe rejected it. On November 19, 1987, the plaintiffs filed their witness list which included Dr. Abbassian. The defendants also included Dr. Abbassian on their witness list, declaring him an expert witness since they intended to elicit opinion testimony regarding the cause of the fistula. Again, no objection was received from the plaintiffs.

On April 6, 1988, five days before trial was set to begin, the defendants were scheduled to conduct a de bene esse deposition of Dr. Abbassian because the doctor had a heart condition and they sought to avoid the stress of testifying in person during trial. The plaintiff did not object in advance. At the deposition, however, the plaintiff's attorney stated that he had just become aware of the ex parte contact between Dr. Abbassian and the defendants, and he immediately asserted the physician-patient privilege. The plaintiff 's counsel accused Dr. Abbassian of betraying the physician-patient privilege and threatened a lawsuit for breach of privilege. Dr. Abbassian then refused to continue, and the deposition was adjourned.

Defense counsel filed an emergency motion to bar the plaintiff from introducing any evidence at trial of Domako's medical condition ¹ or, alternatively, for a determination that Domako had waived any physician-patient privilege. At the hearing on the motion, plaintiff 's counsel stated that he did not object to Dr. Abbassian's testimony except with regard to that testimony concerning the standard of care. The trial court held that the plaintiff had waived the physician-patient privilege and that Dr. Abbassian could testify about his repair and the cause of the fistula.

During trial, the plaintiffs called Dr. Abbassian as a witness, and he testified that the fistula had been caused, not by any negligence of Dr. Rowe, but by the large fibroid tumor pressing against the plaintiff's bladder causing decreased blood flow and deterioration of the tissue. The jury returned a verdict of no cause of action in favor of the defendants. The trial court denied with prejudice the plaintiffs' motion for judgment notwithstanding the verdict and, alternatively, for a new trial. The Court of Appeals affirmed, 184 Mich.App. 137, 457 N.W.2d 107 (1990). The Court of Appeals also issued an order, pursuant to Administrative Order No. 1984-2, which certified that the opinion was in conflict with Lawrence v. Bay Osteopathic Hosp., Inc., 175 Mich.App. 61, 437 N.W.2d 296 (1989), and Jordan v. Sinai Hosp. of Detroit, Inc., 171 Mich.App. 328, 429 N.W.2d 891 (1988).

This Court granted leave to appeal, limited to whether the physician-patient privilege was violated when defense counsel conducted the ex parte interview with the plaintiff's treating physician. A number of interested groups were permitted to appear as amici curiae in this matter.

II

The process of discovery is extensively addressed by the Michigan Court Rules of 1985. The scope of discovery is outlined in MCR 2.302(B)(1) which provides: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." Since any relevant, nonprivileged information is discoverable, and plaintiffs do not contest the relevance of the information sought from Dr. Abbassian, the information could only be shielded from discovery on the basis of privilege.

The applicable privilege is the physician-patient privilege created in this state by statute. At the time of the proceedings in this case, M.C.L. Sec. 600.2157; M.S.A. Sec. 27A.2157, provided:

"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition...." ²

The statute provides protection for information relayed by the patient to the physician, and it also provides for a waiver of the privilege when the plaintiff "produce- [s] any physician as a witness in his own behalf" in a malpractice action. Similarly, the Michigan Court Rules offer protection for medical information:

"When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery under MCR 2.310 to the extent that ... the party does not assert that the information is subject to a valid privilege." MCR 2.314(A)(1)(b).

Just as in the privilege statute, the court rules provide for the waiver of the physician-patient privilege. MCR 2.314(B)(1) clarifies the procedure by which the patient waives the privilege: "The privilege must be asserted in the party's written response under MCR 2.310. A privilege not timely asserted is waived in that action...." The Staff Comment declares that this section requires a party to decide at the discovery stage whether to assert the privilege. Unlike other forms of litigation, a case involving medical malpractice cannot proceed without evidence of the physical or mental condition of the plaintiff. Therefore, requiring the plaintiff to decide whether to assert the privilege at the discovery stage, rather than at trial, promotes efficient use of judicial resources by fostering an early resolution of this issue.

The purpose behind the physician-patient privilege is to protect the confidential nature of the physician-patient relationship and to encourage the patient to make a full disclosure of symptoms and conditions. Gaertner v. Michigan, 385 Mich. 49,...