Gaertner v. State
| Decision Date | 04 June 1971 |
| Docket Number | No. 39,39 |
| Citation | 385 Mich. 49,187 N.W.2d 429 |
| Parties | Vera GAERTNER, as guardian of Sharon Gaertner, a minor, Plaintiff-Appellee, v. STATE of Michigan, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Charles J. Barr, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, for plaintiff-appellee.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Maxine Boord Virtue, Arthur E. D'Hondt, Asst. Attys. Gen., Lansing, for defendant-appellant.
Before the Entire Bench.
This case involves the question whether a State hospital may lawfully bar the legal representative of a patient from access to that patient's hospital records on the basis of MCLA 600.2157 (MSA 27A.2157) making those records confidential. The Attorney General contends for non-access to such records as a protection to hospital physicians against loss of licensure, suit or prosecution for violation of the aforesaid statutory provisions.
Plaintiff, a guardian of a mentally incompetent minor, successfully sought to enjoin the State of Michigan and its agents from interfering with her general access to medical records reflecting treatment of her ward as an in-patient at the Lapeer State Home and Training School and the Fort Custer State Home and Training School for the period from 1959 to 1968. The plaintiff's attorney first requested access to the records in April, 1968, from the Fort Custer State Home and Training School in whose possession the records now are. He submitted with the request a waiver of the physician-patient privilege signed by the plaintiff. The request was referred to the Department of Mental Health which in turn referred it to the office of the Attorney General. Upon the advice of the Attorney General, the request was denied.
The trial court granted an injunction prohibiting the 'State of Michigan, its officers, agents and employees and those acting in concert therewith * * * from interfering with or denying plaintiff the right to examine, inspect and copy the hospital records of Sharon Gaertner' (the plaintiff's mentally incompetent ward). The Court of Appeals affirmed, 24 Mich.App. 503, 180 N.W.2d 308. From the decision of the Court of Appeals, the State of Michigan, represented by the Attorney General, appeals to this Court.
MCLA 600.2157 (MSA 27A.2157) reads as follows:
'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: Provided further, That after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege herein-before created.' 1
The purpose of this statute is to protect the confidential nature of the physician-patient relationship. In Schechet v. Kesten, 372 Mich. 346, 351, 126 N.W.2d 718, 721 (1964), this Court said of the statute:
'* * * It prohibits the physician from disclosing, in the course of any action wherein his patient or patients are not involved and do not consent, even the names of such noninvolved patients.'
The privilege of confidentiality belongs to the patient; it can be waived only by the patient. Schechet v. Kesten, Supra. In Storrs v. Scougale, 48 Mich. 387, 395, 12 N.W. 502, 505 (1882), this Court by Justice Cooley said of this privilege of confidentiality:
'* * * a privilege is guarded which does not belong to him (the physician) but to his patient, and which continues indefinitely, and can be waived by no one but the patient himself.'
The remaining question is whether the guardian for the mental incompetent in this case can act for his ward. The mentally incompetent ward cannot act for himself, and the law will not leave him helpless. For example, MCLA 704.2 (MSA 27.3178(252)) which governs the relationship of a fiduciary to those persons for whom he is empowered to act provides in pertinent part as follows:
'* * * no facts or knowledge pertaining to their property in his hands or to their affairs shall be disclosed by the fiduciary in any manner except with the consent of the cestui, heir, devisee, legatee beneficiary or ward: Provided, however, That such consent may be given by the fiduciary of a minor or incompetent, in behalf of such minor or incompetent * * *.'
This Court therefore holds that a State hospital may not lawfully deny the guardian of an incompetent minor access to the records of his ward on the basis of MCLA 600.2157 (MSA 27A.2157). The physician-patient privilege is the privilege of the patient. The guardian can legally act for his mentally incompetent ward who cannot act for himself.
In his brief (p. 13), the Attorney General has made a valid point that in the case of the mentally ill:
'* * * it is often the medical duty of a psychiatrist to withhold from patients the contents of medical records to the extent that such records contain family confidences, disclosures of past behavior or medical predictions of possible future recurrences of bizarre or disturbed behavior or other disclosures certain to upset the patient severely.'
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