Jordan v. Sinai Hosp. of Detroit, Inc., Docket No. 103093

• Decision Date: 12 October 1988
• Docket Number: Docket No. 103093
• Citation: 429 N.W.2d 891,171 Mich.App. 328
• Parties: Randolph G. JORDAN, personal representative of the Estate of Deborah Elaine Jordan, deceased, and Randolph G. Jordan, individually, Plaintiffs-Appellees, v. SINAI HOSPITAL OF DETROIT, INC., a Michigan corporation, Defendant-Appellant, and Donald R. Blitz, M.D., and Donald R. Blitz, M.D., P.C., a Michigan professional corporation, jointly and severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 891

429 N.W.2d 891

171 Mich.App. 328

Randolph G. JORDAN, personal representative of the Estate of Deborah Elaine Jordan, deceased, and Randolph G Jordan, individually, Plaintiffs-Appellees, v. SINAI HOSPITAL OF DETROIT, INC., a Michigan corporation Defendant-Appellant and Donald R. Blitz, M.D., and Donald R. Blitz, M.D., P.C., a Michigan professional corporation, jointly and severally, Defendants.

Docket No. 103093.

Court of Appeals of Michigan.

Submitted June 21, 1988.

Decided Sept. 7, 1988.

Released for Publication Oct. 12, 1988.

Sommers, Schwartz, Silver & Schwartz, P.C. by Richard L. Groffsky, Southfield, for plaintiffs-appellees.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, for defendant-appellant.

Before CYNAR, P.J., and SULLIVAN and J.R. ERNST, ^* JJ.

CYNAR, Presiding Judge.

Defendant Sinai Hospital of Detroit, Inc., appeals by leave granted from a September 1, 1987, order denying its motion to authorize an informal meeting between plaintiff's decedent's treating physicians and the hospital's attorneys.

Plaintiff, Randolph G. Jordan, commenced this wrongful death medical malpractice action seeking recovery for the loss of his wife allegedly due to the treatment and care rendered at Sinai Hospital. Specifically, plaintiff alleges that Sinai Hospital and Donald R. Blitz, M.D., were negligent and committed malpractice by failing to properly diagnose and treat preeclampsia which arose during the course of plaintiff's decedent's pregnancy. This allegedly caused a cerebral hemorrhage along with the labor and delivery of decedent's child on October 14, 1985, and allegedly resulted in decedent's death on October 21, 1985.

Two neurologists, Drs. Lawrence Eilender and John Gilroy, and a neurosurgeon, Dr. Philip Friedman (treating physicians), rendered care to decedent at Sinai following her lapse into a coma. The treating physicians have not been charged with any malpractice nor are they defendants in the case. The records of the treating physicians' diagnosis and treatment of plaintiff's decedent have been made available to all parties.

Defense counsel for Sinai contacted Dr. Eilender to schedule an ex parte meeting to discuss the doctor's care and treatment of plaintiff's decedent. Dr. Eilender, however, was reluctant to meet with defense counsel without a court order authorizing such a meeting. Defense counsel then asked plaintiff's counsel to stipulate to an order authorizing an ex parte interview. Plaintiff's counsel refused.

Subsequently, on July 10, 1987, the hospital filed a motion to authorize informal meetings with decedent's treating physicians. The hospital contended that it had a right to interview the medical personnel involved in the care and treatment of decedent, absent an assertion of the statutory physician-patient privilege.

Plaintiff's response to defendant's motion stated that plaintiff was not asserting a privilege as to the medical records or the testimony of the treating physicians. Plaintiff maintained that the hospital has the right to take depositions and subpoena the treating physicians to testify at trial. However, the "fiduciary relationship" between patient and physician precludes a physician from holding an ex parte meeting with defense counsel. Plaintiff further argued that, in a case such as the one at bar where decedent's treating physicians are staff doctors at defendant hospital, ex parte interviews are inherently inappropriate and contrary to the very nature of the physician-patient relationship.

Following the hearing on the motion, the trial judge denied the motion, stating:

"THE COURT: I think what we are talking about here is it's a very special kind of a relationship, the relationship of doctor to patient, and whether or not anybody is going to use this person in a trial is irrelevant here. What we are talking about is that in order to protect the relationship between patient and physician, the patient's attorney ought to be present at the interview. I think it, the material is relevant to the case whether this person is a witness or not, and is discoverable, and do it by deposition.

"MR. CIROCCO: [counsel of Sinai Hospital] So therefore the fiduciary relationship is protected when opposing Counsel is there to protect; is that your holding?

"THE COURT: I don't have to hold that. I am just saying that you're asking for the right to question a sacred relationship here without plaintiff's counsel being present. I don't think that's necessary and I haven't seen any law that says that it must be allowed. Therefore I am not going to allow it. It's, you know it's just as simple as that."

An order denying defendant's motion was entered on September 1, 1987. Leave to appeal was granted on September 9, 1987.

The sole issue before the Court is whether the trial court erred in denying defendant's motion to informally interview decedent's treating physicians. Before we begin our analysis, we note that this issue is also currently before this Court in two other consolidated cases: Loso v. St. Lawrence Hospital (Docket Nos. 92884 and 95260), and Hegwood v. Peoples Community Hospital Authority (Docket No. 93108). Leave has been held in abeyance in Gelispie v. St. Lawrence Hospital (Docket No. 96496) pending the decision in Loso and Hegwood.

On appeal, the hospital argues that informal ex parte interviews with nonparties are a long-standing, legitimate, and crucial part of the discovery process in civil litigation. Defendant hospital claims that ex parte discussions provide an inexpensive and timesaving method of discovery and promote early evaluation and settlement of cases. Plaintiff should not be permitted to assert the existence of a physician's fiduciary duty and the patient's right to confidentiality and nondisclosure to preclude defendant from speaking informally with the treating physicians while plaintiff is able to do so.

In addition, the hospital maintains that, by placing decedent's medical condition in issue, plaintiff has destroyed the fiduciary relationship between physician and patient and has transformed the treating physicians into ordinary fact witnesses. Plaintiff should not be permitted to waive and then reassert the physician-patient privilege. Courts in several other jurisdictions have recognized and sanctioned a defendant's right to ex parte interviews. Defendant hospital urges this Court to follow those jurisdictions which permit ex parte interviews.

Plaintiff, on the other hand, argues that Michigan case law does not clearly support ex parte meetings between treating physicians and defense attorneys. In fact, plaintiff alleges that the physician-patient privilege bars such ex parte discussions and permits discovery of a patient's medical condition only through formal methods of discovery.

The hospital claims that this Court has expressly sanctioned ex parte interviews of nonparty treating physicians in the personal injury case of Gailitis v. Bassett, 5 Mich.App. 382, 146 N.W.2d 708 (1966). The Gailitis Court held:

"With respect to the authorized interview of one of plaintiff's attending physicians, PA 1961, No 236, Sec. 2157 (CLS 1961, Sec. 600.2157, Stat Ann 1962 Rev Sec. 27A.2157) provides for waiver of physician-patient privilege in malpractice actions in case plaintiff produces any physician as a witness in his behalf, who has treated him for injury, disease or condition with reference to which malpractice is alleged. GCR 1963, 302.1 permits deposing the physician involved but GCR 1963, 302.4 restricts use of the deposition to testimony 'admissible under the rules of evidence.' Admissibility of any evidence obtained by defendant from the physician is governed by the terms of the statute, supra, and we are bound to presume the trial court will follow the law, until the contrary is shown. Wagar v Peak, (1871) 22 Mich 368. We find no error in authorizing defendant's counsel to interview plaintiff's physician." (Emphasis supplied.) 5 Mich.App. 383-384, 146 N.W.2d 708.

Citing Gailitis in a peremptory order, this Court directed the trial court, in a case where the plaintiff had not asserted the physician-patient privilege, to allow the defendants to interview the treating physicians. Lusko v. Rubenfire, order of the Court of Appeals, released October 31, 1983 (Docket Nos. 71222, 71223). In Lusko, the panel noted:

"Absent assertion of a valid privilege, a party has the right to interview any witness, Socha v Passina, 405 Mich 458 (1979), albeit the witness may choose not to consent to an interview, but see Code of Professional Responsibility, DR7-109(B), in which event resort must be had to the compulsory procedures of Chapter 30 of the General Court Rules."

DR7-109(B) states that it is unethical for an attorney to suborn a witness not to cooperate with opposing counsel in consenting to interviews or providing information. The reference to Chapter 30 of the General Court Rules was to the rules governing depositions, whether orally or on written interrogatories, for which the consent of the witness is not required, in contrast to an interview situation.

Initially, we note that Gailitis and the two peremptory orders preceded the new Michigan Court Rules, thereby leaving a question whether, even if ex parte interviews were once permissible, informal interviews are still viable under the new court rules. Secondly, and more importantly, the Gailitis holding is unclear as to what exactly the Court held even under the old court rules. The opinion refers to an "authorized interview" and then cites the court rules regarding deposing of a physician and the use of that deposition at trial. We are of the opinion that, due to the Court's reference to GCR 1963, 302.1 (when depositions may be taken) and GCR 1963, 302.4 (use of depositions), the Court upheld the trial court's decision to allow the defendants to "interview" the plaintiff's physician by way of deposition. We do not read the...