Schechet v. Kesten

• Citation: 126 N.W.2d 718,372 Mich. 346
• Decision Date: 05 March 1964
• Docket Number: No. 71,71
• Parties: Isadore A. SCHECHET, Plaintiff and Appellee, v. Heinrich H. KESTEN, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 718

126 N.W.2d 718

372 Mich. 346

Isadore A. SCHECHET, Plaintiff and Appellee, v. Heinrich H. KESTEN, Defendant and Appellant.

No. 71.

Supreme Court of Michigan.

March 5, 1964.

Howard J. Bueche, Flint, for plaintiff and appellee.

Joseph & Joseph, Joseph R. Joseph, Flint, for defendant and appellant.

Before the Entire Bench.

BLACK, Justice.

The statute which precludes that which the circuit court ordered answered upon discovery-interrogatory has remained unchanged--certainly in presently applicable substance--since Storrs v. Scougale, 48 Mich. 387, 12 N.W. 502, was decided in 1882 (See. C.L.1871, § 5943; C.L.1897, § 10181; C.L.1915, § 12550; C.L.1929, § 14216; C.L.1948, § 617.62; R.J.A.1961, § 2157 [Pub.Acts 1961, No. 236]; Stat.Ann.Rev.1962, § 27A.2157).

In the Storrs Case, an action to set aside as fraudulent certain conveyances of real and personal property executed by plaintiff James R. Storrs (otherwise known as Riley Storrs), the defense sought to discredit Riley's case as indicated by ensuing quotation. The reader will perceive at once that the physician's testimony, to which Justice Cooley alluded, called forth the fact of consultation and treatment by the testifier fo 'a young German lady' who was not a party to the cause and whose privilege by law as well as the physician's Hippocratic oath was outrageously violated. Mr. Justice Cooley, writing for the unanimous Court, dealt with the situation in words which justify complete and devotional repetition thereof in this year 1964. Having made reference to the purpose of defense counsel, the Justice proceeded (48 Mich. pp. 395, 396, 12 N.W. pp. 505-506):

'For this purpose a physician was called to the stand, who testified that he 'treated a young German lady at Benham's hotel in the city of Corunna in December, 1879, and January, 1880,' for a bad case of gonorrhoea, and that he was informed she had been at work for Riley Storrs. This evidence ought not to be passed over without remark. It is surprising evidence for many reasons. One of these is that the physician had no business to give it. The statute--Comp.Laws, § 5943--provides that 'no person duly authorized to practice physic and 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 do any act for him as a surgeon.' Every reputable physician must know of the existence of this statute; and he must know from its very terms as well as from the obvious reasons underlying it, that it is not at his option to disclose professional secrets. A rule is prescribed which he is not to be 'allowed' to violate; a privilege is guarded which does not belong to him but to his patient, and which continues indefinitely, and can be waived by no one but the patient himself. Briggs v. Briggs, 20 Mich. 34; Johnson v. Johnson, 14 Wend. 637; Edington v. Mutual Life Ins. Co. [of New York] 67 N.Y. 185; Grattan v. Metropolitan Life Ins. Co., 80 N.Y. 281; Cahen v. Continental, etc., Ins. Co., 41 N.Y.Sup.Ct. 296. What was done in this case may have been thoughtlessly done; but if a physician is found disposed to violate both the law of the land and the precepts of professional ethics by making such a disclosure, and if counsel invite him to do so by their questions, the [circuit court] commissioner, in the case of so plain a disregard of the law to the prejudice of a third party, may well decline to be an instrument of the wrong; at least until he can take the opinion of the circuit judge on the subject. It is no doubt the duty of the commissioner in most cases to take all the testimony that is offered, and leave questions of competency to be passed upon afterwards; but there may be cases so outrageous as to constitute exceptions; and the case of making use of the opportunity in order to assail the reputation of a third party without right and in distinct violation of a statute ought to be considered such a case. It may be that the woman indicated by this evidence was a worthless character, and entitled to no respect; but she has the same rights under the law with others, and she is not to be condemned on illegal evidence, or convicted of misconduct through a violation of law on the part of those who assume to administer it.' ¹

The case before us was brought to recover damages resulting from an alleged slanderous and libelous report made by defendant, the then chairman of the department of surgery of Flint General Hospital, to the 'Credentials and Executive Committee' of the hospital. That report was, to say the least, critical of plaintiff's surgical competence. It concluded with recommendation that plaintiff 'should be permanently suspended from the Staff.'

Plaintiff alleges that he is a 'duly qualified osteopathic physician.' Defendant, answering, alleges that he is 'a duly licensed doctor and authorized to practice osteopathic medicine.' The pleaded issues do not now concern us. A question of discovery by interrogatory does. See sections 4 through 6 of former Court Rules 35 and present GCR 1963, 301, 302 and 307.

After the case had come to issue plaintiff submitted a series of interrogatories for answer by defendant, most of which demanded discovery of the sources of information defendant conveyed to the committee by such report....