ROURK v. OAKWOOD HOSPITAL CORPORATION

BAKER v OAKWOOD HOSPITAL CORPORATION Docket No. 206407. Submitted March 9, 1999, at Detroit. Decided January 18, 2000, at 9:00 A.M. Veronica L. Baker brought a wrongful discharge action in the Wayne Circuit Court against Oakwood Hospital Corporation and Stephen M. Aronson, M.D., claiming breach of contract, retaliation in violation of public policy, and interference with contractual or advantageous relations in connection with her employment as research nurse coordinator for a study of the experimental drug Sabeluzole conducted by Dr. Aronson on patients with Alzheimer’s disease and for a proposed, but not undertaken, study by the same doctor of the experimental drug Milanimine on Alzheimer’s patients. The plaintiff moved for the compelled discovery of the histories and records of the patients in Dr. Aronson’s Sabeluzole study, of documents relating to sponsorship of the Sabeluzole study by the Janssen Research Foundation and to sponsorship of the Milanimine study by Parke-Davis, of documents relating to limitations on Dr. Aronson’s retention of lecture honoraria, of tax forms showing income earned by Dr. Aronson for speaking engagements and the Sabeluzole study, and of Dr. Aronson’s travel records. The plaintiff argued that the medical records and research project records would support her allegations that Dr. Aronson had violated Food and Drug Administration (fda) research rules and the research project protocol and that Dr. Aronson had required the plaintiff to practice medicine without a license and commit other improper acts. The plaintiff argued that the documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to the plaintiff and falsify records. Over the defendants’ objection that the medical records were privileged and that the other documents were not relevant, the court, Pamela R. Harwood, J., granted the plaintiff’s discovery motion. The defendants appealed by leave granted. The Court of Appeals held: 1. The physician-patient privilege statute, MCL 600.2157; MSA 27A2157, provides that a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character if the information was necessary to enable the person to prescribe for the patient as a physician or to do any act for the patient as a surgeon. The statute imposes an absolute bar in that it prohibits a physician from disclosing, in the course of any action wherein the physician’s patient or patients are not involved and do not consent, even the names of such noninvolved patients. In this case, the medical records of the patients in the Sabeluzole study are protected by the physician-patient privilege and are not subject to discovery. The trial court abused its discretion in compelling discovery of the medical records. 2. The personal records of Dr. Aronson, with the exception of the documents relating to the Parke-Davis project on which neither the plaintiff nor Dr. Aronson worked, are relevant to the plaintiff’s claims and are subject to discovery under MCR 2.302(B)(1). The trial court did not abuse its discretion in ordering discovery of those records. Affirmed in part and reversed in part. Physicians and Surgeons — Physician-Patient Privilege — Discovery. The physician-patient privilege bars a physician, in the course of any action wherein the physician’s patient is not involved and has not waived the privilege, from disclosing the medical records of the patient (MCL 600.2157; MSA 27A.2157). David D. Kohl, for the plaintiff. 'Dykema Gossett PLLC (by Rosemary G. Schikora), ■ for the defendants. Before: Sawyer, P.J., and Fitzgerald and Saad, JJ. Saad, J. Defendants Oakwood Hospital Corporation and Stephen M. Aronson appeal by leave granted the September 3, 1997, order by Wayne Co Circuit Judge Pamela R. Harwood granting plaintiff Veronica L. Baker’s motion to compel production of patient medical records and certain of defendant Aronson’s personal records in a wrongful discharge lawsuit. This Court granted defendants leave to file this interlocutory appeal. We reverse the order compelling production of the medical records, but affirm the order compelling production of Aronson’s personal records. I. NATURE OF THE CASE This appeal raises several discovery issues, one of which involves an issue of first impression in Michigan regarding the scope of the physician-patient privilege. Plaintiff alleges that the medical research records of Alzheimer’s patients contain necessary and material information relating to her wrongful discharge lawsuit. She contends that these records will bear out her claim that defendant Aronson, a doctor, required her to practice medicine without a license by performing research functions restricted to physicians. She argues that defendants are not entitled to assert the physician-patient and psychotherapist-patient privileges in order to shield relevant evidence. Defendants argue that the privileges constitute an absolute bar to disclosure. Without reaching the issue of privilege, the trial court ordered defendants to produce the records in redacted form. Defendants took an interlocutory appeal from that order. We conclude that under Michigan Supreme Court precedent and subsequent decisions by this Court, the physician-patient privilege is an absolute bar that prohibits the unauthorized disclosure of patient medical records, including when the patients are not parties to the action. We reverse the trial court’s order compelling discovery of those records. n. FACTS AND PROCEEDINGS This lawsuit arises from an employment dispute between plaintiff, a registered nurse who worked as a research nurse coordinator, and defendant Stephen M. Aronson, M.D. Dr. Aronson conducted a study of Sabeluzole, an experimental drug for the treatment of Alzheimer’s disease under the sponsorship of the Janssen Research Foundation (jkf). He began this research at Wayne State University and the Veterans’ Administration Hospital, and later brought the study to Oakwood Hospital. Plaintiff worked with Dr. Aron-son at Wayne State and the VA hospital, and joined him at Oakwood in January 1996 on a less than full-time basis. According to plaintiff, plaintiff’s and Dr. Aronson’s working relationship quickly deteriorated after the move to Oakwood. Plaintiff’s part-time status led to a conflict between her and Dr. Aronson over plaintiff’s hours, compensation, and benefits package. Plaintiff alleges that Dr. Aronson gave her false information on these matters before she made the move. The parties also disagreed over plaintiff’s responsibilities. Plaintiff has alleged the following version of events: After moving to Oakwood, Dr. Aronson was permitted to retain honoraria for lectures and speaking engagements that he had not been permitted to retain at Wayne State. Induced by this financial incentive, Dr. Aronson overbooked himself with speaking engagements that interfered with his participation in the research. Because he was often out of town, he was not available to perform patient medical exams and other research-related duties. Instead, he expected plaintiff to “practice medicine without a license” by assinning certain duties that Food and Drug Administration (fda) regulations and research protocols restricted to medical doctors. He also required plaintiff to falsify records to conceal his lack of involvement. The parties also clashed over a pending ParkeDavis study of the drug Milanimine. This study never materialized. Dr. Aronson contests plaintiffs version of events and has denied asking her to do anything improper. Dr. Aronson avers that plaintiffs dissatisfaction stems from defendants’ inability to accede to her demands regarding wages, benefits, and work schedule. In June 1996 plaintiff left Oakwood’s employ. Again, the parties dispute the circumstances of plaintiff’s departure. Plaintiff alleges that she confronted Dr. Aronson over his illegal and unethical conduct, which caused him to become angry and demand her resignation. When plaintiff refused to sign a resignation letter, he falsely informed Oakwood administration that she had resigned. In contrast, defendants contend that plaintiff voluntarily quit out of dissatisfaction with her compensation and because Dr. Aronson refused her demand to be paid a “finder’s fee” for each patient in the study. Plaintiff filed this three-count lawsuit against Oak-wood and Dr. Aronson. Plaintiff included counts for “wrongful discharge” (specifically, a breach of contract claim), “retaliation in violation of public policy,” and “interference with contractual or advantageous relations.” With respect to the second count, plaintiff alleged that defendants terminated her employment in retaliation for her objections to Dr. Aronson’s illegal and unethical conduct. DISCOVERY REQUESTS AND OBJECTIONS TO DISCOVERY In the course of discovery, plaintiff requested defendants to produce “a copy of the case histories and records of the patients in Dr. Aronson’s JRF Sabeluzole study.” Although the discovery request asked for patient names to be replaced by numbers to preserve confidentiality, plaintiff also requested a key showing the numbers associated with the names. Plaintiff also requested the following: documents relating to the JRF Sabeluzole research project and the abortive Parke-Davis research project on the drag Milanimine; documents relating to limitations on Dr. Aronson’s retention of lecture honoraria at both Oak-wood and Wayne State; Forms 1099 for the tax years 1994-96, showing amounts paid for speaking engagements; travel records for 1994-96; and Forms 1099 for 1994-96 showing amounts jrf paid for the Sabeluzole study. In their response to this request, defendants objected to the request for medical records because the information was not relevant and was not reasonably calculated to lead to the discovery of admissible evidence. Defendants also averred that the request was “overly broad and burdensome” because it involved thousands of pages of documents that filled two file cabinets. They objected to the requests for Forms 1099, research documents, honoraria records, and travel records on grounds of relevance. Plaintiff filed her motion to compel discovery of these documents. She argued that the medical records and research project records were relevant because they would support her allegation that Dr. Aronson violated FDA research rules and the research project protocols, and required plaintiff to practice medicine without a license and commit other improper acts. She argued that documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to plaintiff and falsify records. In response, defendants reiterated their objection that the medical records were not relevant to any issue and were too burdensome to produce. Additionally, defendants argued at the motion hearing that the records were privileged, although they had not raised this matter in their brief. With respect to the remaining discovery requests, defendants argued that the research documents were not relevant because plaintiff was not required to demonstrate that Dr. Aronson actually committed any violations to prove her retaliatory discharge claim (which defendants erroneously labeled a whistle-blowers’ claim). Similarly, they argued that information on Dr. Aronson’s travels and speaking engagements was irrelevant because plaintiff would not be required to prove that Dr. Aronson did, in fact, neglect his research responsibilities. The trial court heard the motion on August 22, 1997, concluded that the materials were sufficiently relevant to plaintiff’s causes of action for purposes of discovery, and granted the motion to compel. However, the court also issued a protective order to maintain confidentiality of the records and to replace patients’ names with initials. We granted defendants’ application for interlocutory appeal. HI. ANALYSIS A. THE PHYSICIAN-PATIENT PRIVILEGE AND DR. ARONSON’S RESEARCH RECORDS The applicability of the physician-patient privilege is a legal question that this Court reviews de novo. Once we determine whether the privilege is applicable to the facts of this case, we determine whether the trial court’s order was proper or an abuse of discretion. See Dorris v Detroit Osteopathic Hosp, 220 Mich App 248, 250; 559 NW2d 76 (1996), aff’d 460 Mich 26; 594 NW2d 455 (1999), see also Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618; 576 NW2d 709 (1998), for the standard for reviewing attorney-client privilege, which we consult for analogy. 1. THE STATUTORY PRIVILEGES The physician-patient privilege statute provides, in pertinent part: Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. [MCL 600.2157; MSA 27A.2157 (emphasis added).] The Mental Health Code, MCL 330.1001 et seq.-, MSA 14.800(1) et seq., includes additional protection for communication to a psychiatrist or psychologist. The Mental Health Code defines “privileged communication” as “a communication made to a psychiatrist or psychologist in connection with the examination, diagnosis, or treatment of a patient, or to another person while the other person is participating in the examination, diagnosis, or treatment or a communication made privileged under other applicable state or federal law.” MCL 330.1700(h); MSA 14.800(700)(h). The Mental Health Code provides that privileged communications “shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege,” except in six enumerated circumstances, none of which is applicable here. MCL 330.1750(1), (2); MSA 14.800(750)(1), (2). The psychiatrist-patient privilege prohibits disclosure of “the fact that the patient has been examined or treated or undergone a diagnosis” except where that information is relevant to a health care provider’s or insurer’s rights or liabilities. MCL 330.1750(3); MSA 14.800(750)(3). The physician privilege bars disclosure of “any information” acquired in the course of the professional relationship, whereas the psychiatrist privilege applies only to the patient’s communications. However, the record in this case is insufficient for determining if the distinction is important here. Although defendants suggest that the psychiatric privilege might preclude discovery even if the physician privilege does not, we conclude that for purposes of this appeal, there is no difference in the application of these two privileges as applied to the facts here. A threshold issue that neither party raised or addressed is whether the physician-patient privilege applies in this case, where Dr. Aronson and the Alzheimer’s patients were not involved in a traditional doctor-patient relationship. Plaintiff has not contended that the patient records from the Sabeluzole study fall outside the scope of privileged matters under either statute. Hence, we assume for purposes of our analysis that the subjects were patients entitled to the privilege. “The purpose of the [patient-physician] privilege is to protect the doctor-patient relationship and ensure that communications between the two are confidential.” Herald Co Inc v Ann Arbor Public Schools, 224 Mich App 266, 276; 568 NW2d 411 (1997). The privilege did not exist at common law; thus, “the statute controls the scope of the privilege in Michigan.” Id. “The privilege belongs to the patient and can be waived only by the patient.” Id. Plaintiff also has not contended that any of the patients expressly or impliedly waived their privilege, or that any of the six enumerated exceptions in MCL 330.1750(2); MSA 14.800(750)(2) is applicable. 2. DEFENDANTS’ ARGUMENTS FOR APPLICATION OF PRIVILEGE There is ample Michigan authority to support defendants’ argument that the physician-patient privilege is an absolute bar that protects the medical information of nonparty patients, although no case is on all fours. Defendants rely on Schechet v Kesten, 372 Mich 346; 126 NW2d 718 (1964). In Schechet, the plaintiff, a physician, sued the defendant, a hospital administrator, for defamation, alleging that the defendant attacked his professional competence. Id., 349. The plaintiff served interrogatories on the defendant that requested the defendant to identify the “cases” (presumably the names of patients and information about their treatments) that induced the defendant to make the censorious statements. Id., 350. The Michigan Supreme Court held that the physician-patient privilege barred disclosure: The statute imposes an absolute bar. It protects, “within the veil of privilege,” whatever in order to enable the physician to prescribe, “was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.” (Briggs v Briggs, 20 Mich 34, 41 [1870].) Such veil of privilege is the patient’s right. 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. [Id., 351 (emphasis added).] Relying on Schechet, this Court has held that the physician-patient privilege barred disclosure of medical information for patients who were not parties to the action. In Dorris, supra, the plaintiff in a medical malpractice action sought the name of the patient who shared her hospital room because she believed this person would corroborate plaintiff’s allegation that plaintiff refused a certain medication. 220 Mich App 249-250. This Court held that Schechet was binding precedent that barred disclosure of a patient’s name. Id., 251-252. Our Supreme Court agreed and affirmed this Court’s decision: The language of § 2157 is clear in its prohibition of disclosure of privileged information. In accordance with prior rulings of this Court, particularly Schechet, that the purpose of the privilege is to encourage patients’ complete disclosure of all symptoms and conditions by protecting the confidential relationship between physician and patient, we find requiring the defendant hospitals to disclose the identity of unknown patients would be in direct contradiction of the language and established purpose of the statute. [460 Mich 37.] Similarly, in Popp v Crittenton Hosp, 181 Mich App 662; 449 NW2d 678 (1989), a medical malpractice patient alleged that the defendants, a hospital and a physician, were negligent in failing to promptly conduct a computerized axial tomography (cat) scan when the plaintiff came to the emergency room. The physician testified that another patient was under the CAT scan when the plaintiff arrived. The plaintiff sought discovery of the other patient’s medical records to determine which patient deserved priority. The trial court denied the request. Id., 665. Citing Schechet, this Court upheld the trial court’s decision because the physician-patient privilege is an “absolute bar prohibiting the disclosure of even the names of patients who are not involved in the litigation.” Id. This Court stated that “the information sought was protected by a physician-patient privilege held by someone not a party to the lawsuit who did not waive his privilege.” Id. In Dierickx v Cottage Hosp Corp, 152 Mich App 162; 393 NW2d 564 (198

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children's welfare due to the condition of the family home, the parents' use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department's petition for dependency and neglect, the district court ultimately terminated the parents' rights. On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents' needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court's findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them (2) the parents were unfit and (3) the conduct or condition of the parents was unlikely to change within a reasonable time. Father also contended that the trial court's decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basi