physician-patient privilege in Michigan

1994In Gaertner v Michigan, 385 Mich 49, 53 ; 187 NW2d 429 (1971), we held that because the physician-patient privilege belongs to the patient, the hospital could not invoke the privilege in order to avoid releasing records to the patient.

1994In Gaertner v Michigan, 385 Mich 49, 53 ; 187 NW2d 429 (1971), we held that because the physician-patient privilege belongs to the patient, the hospital could not invoke the privilege in order to avoid releasing records to the patient.

2024In Perlos, our Supreme Court determined that, while a defendant may have a subjective expectation that his or her results would remain confidential, “Any expectation of privacy defendants may have had in the test results was unjustified, given societal concerns with regard to drunken driving, the Legislature’s implied amendment of the physician-patient privilege, and the resulting minimal intrusion on defendants.” Perlos, 436 Mich at 330 .

1994The admission of such evidence at trial in accordance with this subsection violates neither the Fourth Amendment’s prohibition of unreasonable searches and seizures nor the physician-patient privilege. 13 In People v Perlos, 436 Mich 305, 328 ; 462 NW2d 310 (1990), we examined the constitutionality of subsection 9 of the implied consent statute, and concluded: We find subsection 9 to be a carefully tailored statute which only allows chemical test results to be turned over to the state under narrowly defined circumstances, if the state requests them.

2018Although the restriction on use of peer-review materials is termed a “privilege,” the language of MCL 333.20175(5) does not create a personal privilege, such as a physician-patient privilege that may be waived by a patient. -2- See Meier v Awaad, 299 Mich App 655, 666 ; 832 NW2d 251 (2013) (discussing the scope of the physician-patient privilege).

2018Although the restriction on use of peer-review materials is termed a “privilege,” the language of MCL 333.20175(5) does not create a personal privilege, such as a physician-patient privilege that may be waived by a patient. -2- See Meier v Awaad, 299 Mich App 655, 666 ; 832 NW2d 251 (2013) (discussing the scope of the physician-patient privilege).

2011An accident is often unexpected and undesired by at least one of the parties involved, but not necessarily all.); People v Johnson, 111 Mich App 383, 390-391 ; 314 NW2d 631 (1981) (Communications between a physician and a patient, however confidential they may be, are held not to be privileged if they have been made in the furtherance of an unlawful or criminal purpose.); Osborn v Fabatz, 105 Mich App 450, 455-456 ; 306 NW2d 319 (1981) (Communication between a person and a physician that is for the purpose of a lawsuit, and not for treatment or advice regarding treatment, is not protected by t

2011An accident is often unexpected and undesired by at least one of the parties involved, but not necessarily all.); People v Johnson, 111 Mich App 383, 390-391 ; 314 NW2d 631 (1981) (Communications between a physician and a patient, however confidential they may be, are held not to be privileged if they have been made in the furtherance of an unlawful or criminal purpose.); Osborn v Fabatz, 105 Mich App 450, 455-456 ; 306 NW2d 319 (1981) (Communication between a person and a physician that is for the purpose of a lawsuit, and not for treatment or advice regarding treatment, is not protected by t

1999Unlike Schechet , in Swickard v Wayne Co Medical Examiner, 438 Mich 536, 561 ; 475 NW2d 304 (1991), this Court emphasized that the physician-patient privilege “provides that information is protected which is ‘necessary to enable the person to prescribe for the patient as a physician . . . .’’’In Swickard , this Court concluded that information acquired in the performance of an autopsy fell outside the scope of the privilege because it was not obtained to prescribe treatment. 170 Mich App 619, 623 ; 428 NW2d 719 (1988).

1999Unlike Schechet , in Swickard v Wayne Co Medical Examiner, 438 Mich 536, 561 ; 475 NW2d 304 (1991), this Court emphasized that the physician-patient privilege “provides that information is protected which is ‘necessary to enable the person to prescribe for the patient as a physician . . . .’’’In Swickard , this Court concluded that information acquired in the performance of an autopsy fell outside the scope of the privilege because it was not obtained to prescribe treatment. 170 Mich App 619, 623 ; 428 NW2d 719 (1988).

2018That provision of the statute states: If the patient brings an action against any defendant to recover for any personal injuries, or for any malpractice, and the patient produces a physician as a witness in the patient’s own behalf who has treated the patient for the injury or for any disease or condition for which the malpractice is alleged, the patient shall be considered to have waived the privilege provided in this section as to another physician who has treated the patient for the injuries, disease, or condition. [MCL 600.2157.] “Under this provision, a waiver of the physician-patient pri

2018That provision of the statute states: If the patient brings an action against any defendant to recover for any personal injuries, or for any malpractice, and the patient produces a physician as a witness in the patient’s own behalf who has treated the patient for the injury or for any disease or condition for which the malpractice is alleged, the patient shall be considered to have waived the privilege provided in this section as to another physician who has treated the patient for the injuries, disease, or condition. [MCL 600.2157.] “Under this provision, a waiver of the physician-patient pri

2013However, in [Massachusetts Mut Life, 178 Mich at 204 ], quoting Smart v Kansas City, 208 Mo 162, 198; 105 SW 709 ; 14 LRA Ann Cas 565 (1907), this Court stated: “[I]t seems that it must follow as a natural sequence that when the physician subsequently copies that privileged communication upon the record of the hospital, it still remains privileged.

1999However, in Massachusetts Mut Life Ins Co v Michigan Asylum for the Insane Bd of Trustees, 178 Mich 193, 204 ; 144 NW 538 (1913), quoting Smart v Kansas City, 208 Mo 162, 198; 105 SW 709 ; 14 LRA Ann Cas 565 (1907), this Court stated: “[I]t seems that it must follow as a natural sequence that when the physician subsequently copies that privileged communication upon the record of the hospital, it still remains privileged.

1990In People v Traylor, 145 Mich App 148, 151 ; 377 NW2d 371 (1985), the Court found , that the physician-patient privilege had been impliedly amended by MCL 750.411; MSA 28.643, which requires that wounds inflicted by deadly weapons be reported to local police authorities.

1990In People v Traylor, 145 Mich App 148, 151 ; 377 NW2d 371 (1985), the Court found , that the physician-patient privilege had been impliedly amended by MCL 750.411; MSA 28.643, which requires that wounds inflicted by deadly weapons be reported to local police authorities.

1990In Jenkins and Pollard , finding no Fourth Amendment interest, the courts acknowledged that state statutes exempted the physician-patient privilege in those circumstances. [22] Also, as part of its analysis, the United States Supreme Court in United States v Miller, supra , noted that Congress did not consider reasonable an expectation of privacy in bank records because of their usefulness in criminal, tax, and regulatory investigations.

1990In Jenkins and Pollard , finding no Fourth Amendment interest, the courts acknowledged that state statutes exempted the physician-patient privilege in those circumstances. 22 Also, as part of its analysis, the United States Supreme Court in United States v Miller, supra, noted that Congress did not consider reasonable an expectation of privacy in bank records because of their usefulness in criminal, tax, and regulatory investigations.

1993La Count v Von Platen-Fox Co, 243 Mich 250 ; 220 NW 697 (1928); Yount v Nat’l Bank of Jackson, 327 Mich 342, 347 ; 42 NW2d 110 (1950).

1993La Count v Von Platen-Fox Co, 243 Mich 250 ; 220 NW 697 (1928); Yount v Nat’l Bank of Jackson, 327 Mich 342, 347 ; 42 NW2d 110 (1950).

1993In re Atkins, 112 Mich App 528, 543 ; 316 NW2d 477 (1982).

1993In re Atkins, 112 Mich App 528, 543 ; 316 NW2d 477 (1982).

1993La Count v Von Platen-Fox Co, 243 Mich 250 ; 220 NW 697 (1928); Yount v Nat’l Bank of Jackson, 327 Mich 342, 347 ; 42 NW2d 110 (1950).

1993La Count v Von Platen-Fox Co, 243 Mich 250 ; 220 NW 697 (1928); Yount v Nat’l Bank of Jackson, 327 Mich 342, 347 ; 42 NW2d 110 (1950).

1991In Schechet v Kesten, 372 Mich 346, 351, n 3 ; 126 NW2d 718 (1964), the Court stated that "`[t]he statute is one passed for the sole purpose of enabling persons to secure medical aid without betrayal of confidence.'" In Gaertner v Michigan, 385 Mich 49, 53 ; 187 NW2d 429 (1971), this Court stated that the purpose of the act "is to protect the confidential nature of the physician-patient relationship." And in Drouillard v Metropolitan Life Ins Co, 107 Mich App 608, 617 ; 310 NW2d 15 (1981), the Court of Appeals wrote that the purpose of the privilege "is to encourage free discussion between doc

1991In Schechet v Kesten, 372 Mich 346, 351, n 3 ; 126 NW2d 718 (1964), the Court stated that "`[t]he statute is one passed for the sole purpose of enabling persons to secure medical aid without betrayal of confidence.'" In Gaertner v Michigan, 385 Mich 49, 53 ; 187 NW2d 429 (1971), this Court stated that the purpose of the act "is to protect the confidential nature of the physician-patient relationship." And in Drouillard v Metropolitan Life Ins Co, 107 Mich App 608, 617 ; 310 NW2d 15 (1981), the Court of Appeals wrote that the purpose of the privilege "is to encourage free discussion between doc

1987See also Beasley v Grand Trunk WR Co, 90 Mich App 576, 597 ; 282 NW2d 401 (1979), in which this Court held that a decedent’s request that a physician transmit his physical examination results to a university waived the right of confidentiality at least as to the university, but decedent did not relinquish the right to control the introduction of those results into evidence at trial, and Seaton v State Farm Life Ins Co, 99 Mich App 587, 590-591 ; 299 NW2d 6 (1980), holding that a party who waives the physician-patient privilege during the first trial can reassert the privilege as to the same is

1987See also Beasley v Grand Trunk WR Co, 90 Mich App 576, 597 ; 282 NW2d 401 (1979), in which this Court held that a decedent’s request that a physician transmit his physical examination results to a university waived the right of confidentiality at least as to the university, but decedent did not relinquish the right to control the introduction of those results into evidence at trial, and Seaton v State Farm Life Ins Co, 99 Mich App 587, 590-591 ; 299 NW2d 6 (1980), holding that a party who waives the physician-patient privilege during the first trial can reassert the privilege as to the same is

1981Lindsay v Lipson, 367 Mich 1, 4-5 ; 116 NW2d 60 (1962).

1970He cited Lindsay v. Lipson (1962), 367 Mich 1 , where the Michigan Supreme Court held that the findings of a physician upon a physical examination of a litigant were not protected by the physician-patient privilege, because the physician was not a “treating” physician, 2 but were protected by the attorney-client privilege. 3 *45 In the Lindsay case, however, the physician was not called as a witness by the patient-client, but, rather, by his adversary.

1980See also Polish Roman Catholic Union of America v Palen, 302 Mich 557 ; 5 NW2d 463 (1942), repudiating the *591 theory that once confidential information has been published, the privilege has been waived, and Cartwright v Maccabees Mutual Life Ins Co, 65 Mich App 670, 680 ; 238 NW2d 368 (1975), rev’d on other grounds 398 Mich 238 ; 247 NW2d 298 (1976), holding that the signing of a waiver of the physician-patient privilege when applying for a life insurance policy does not waive the privilege at a subsequent trial.

1980See also Polish Roman Catholic Union of America v Palen, 302 Mich 557 ; 5 NW2d 463 (1942), repudiating the *591 theory that once confidential information has been published, the privilege has been waived, and Cartwright v Maccabees Mutual Life Ins Co, 65 Mich App 670, 680 ; 238 NW2d 368 (1975), rev’d on other grounds 398 Mich 238 ; 247 NW2d 298 (1976), holding that the signing of a waiver of the physician-patient privilege when applying for a life insurance policy does not waive the privilege at a subsequent trial.

2019We recognize that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case,” Augustine v Allstate Ins Co, 292 Mich App 408, 419 ; 807 NW2d 77 (2011) (quotation marks and citation omitted), and that, generally, “nothing precludes defense counsel from seeking an ex parte interview with a plaintiff’s treating physician once the plaintiff has waived the physician-patient privilege.” Holman, 486 Mich at 449 .

2019We recognize that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case,” Augustine v Allstate Ins Co, 292 Mich App 408, 419 ; 807 NW2d 77 (2011) (quotation marks and citation omitted), and that, generally, “nothing precludes defense counsel from seeking an ex parte interview with a plaintiff’s treating physician once the plaintiff has waived the physician-patient privilege.” Holman, 486 Mich at 449 .

2019Holman, 486 Mich at 436-437 , citing MCL 600.2157 and Domako, 438 Mich at 361 (holding that while “confidentiality is adequately preserved by the physician- patient privilege[, o]nce that privilege is waived, there are no sound legal or policy grounds for restricting access to the witness”).

2019We recognize that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case,” Augustine v Allstate Ins Co, 292 Mich App 408, 419 ; 807 NW2d 77 (2011) (quotation marks and citation omitted), and that, generally, “nothing precludes defense counsel from seeking an ex parte interview with a plaintiff’s treating physician once the plaintiff has waived the physician-patient privilege.” Holman, 486 Mich at 449 .

2013With respect to evidentiary matters, the United States Supreme Court in Mohawk Industries, Inc v Carpenter, 558 US 100, 109 ; 130 S Ct 599 ; 175 L Ed 2d 458 (2009), noted that “[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” See also Franzel v Kerr Mfg Co, 234 Mich App 600, 617-618 ; 600 NW2d 66 (1999) (judgment on a breach of contract claim had to be reve

2013With respect to evidentiary matters, the United States Supreme Court in Mohawk Industries, Inc v Carpenter, 558 US 100, 109 ; 130 S Ct 599 ; 175 L Ed 2d 458 (2009), noted that “[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” See also Franzel v Kerr Mfg Co, 234 Mich App 600, 617-618 ; 600 NW2d 66 (1999) (judgment on a breach of contract claim had to be reve