Breach of Contract Cases

MURAD v PROFESSIONAL AND ADMINISTRATIVE UNION LOCAL 1979 Docket No. 208368. Submitted November 10, 1999, at Detroit. Decided February 1, 2000, at 9:00 A.M. Munib and Madea Murad brought an action in the Wayne Circuit Court against Professional and Administrative Union Local 1979 and others after Munib Murad’s employment at Wayne State University was terminated. The plaintiffs alleged that, among other things, Local 1979, Munib Murad’s union, had breached its duty of fair representation by failing to adequately investigate and prosecute the grievance filed following termination. Local 1979 moved for summary disposition, arguing that the plaintiffs’ action was foreclosed because Munib Murad had failed to exhaust internal union remedies. The court, Edward M. Thomas, J., denied the motion. Local 1979 appealed by leave granted. The Court of Appeals held: An employee may not bring an action under the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., for a union’s alleged breach of its duty of fair representation in processing a grievance unless the employee has attempted to exhaust the internal union appeals procedures. A court, at its discretion, may properly excuse the employee’s failure to exhaust such internal remedies where the union officials are so hostile to the employee that the employee could not hope to obtain a fair hearing on the claim, where the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award the employee the full relief sought, or where exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of the employee’s claim. In this case, the trial court, in excusing Munib Murad’s failure to exhaust internal remedies, erred in concluding that such remedies would be futile and would result in unreasonable delay. The internal remedies provide adequate relief, and the plaintiffs presented no evidence demonstrating that the union appeals procedures consume an inordinate amount of time. Reversed and remanded for entry of judgment for Local 1979. Labor Relations — Public Employment Relations Act — Breach of Duty of Fair Representation — Court Actions — Exhaustion of Internal Union Remedies. An employee may not bring an action under the public employment relations act for a union’s alleged breach of its duty of fair representation in processing a grievance unless the employee has attempted to exhaust the internal union appeals procedures; a court, at its discretion, may properly excuse the employee’s failure to exhaust such internal remedies where the union officials are so hostile to the employee that the employee could not hope to obtain a fair hearing on the claim, where the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award the employee the full relief sought, or where exhaustion of internal procedures would -unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of the employee’s claim (MCL 423.201 et seq.; MSA 17.455[1] et seq.). David B. Grant, for Munib and Madea Murad. Klimist, McKnight, Sale, McClow & Canzano, P.C. (by Roger J. McClow) and Connye Y Harper, for Professional and Administrative Union Local 1979. Before: Gribbs, P.J., and Murphy and Griffin, JJ. Murphy, J. Defendant Professional and Administrative Union Local 1979 appeals by leave granted from the circuit court’s order denying its motion for summary disposition with regard to plaintiff Munib Murad’s claim that defendant breached its duty of fair representation. We reverse and remand. Plaintiff Munib Murad brought a six-count complaint against the various defendants. The present appeal concerns plaintiff’s allegation that defendant Professional and Administrative Union Local 1979 breached its duty of fair representation by failing to adequately investigate and prosecute the grievance resulting from plaintiff’s termination from his employment at Wayne State University (wsu).‘ On April 2, 1997, defendants Local 1979 and International Union, uaw (uaw) filed a motion for summary disposition pursuant to MCR 2.116(C)(10), seeking dismissal of the two counts alleged against them, conspiracy and breach of duty of fair representation. On July 8, 1997, the circuit court granted defendants’ motion with regard to the count alleging conspiracy, but denied the motion with regard to the count alleging breach of duty of fair representation. In denying summary disposition on that count, the circuit court excused plaintiff’s failure to exhaust internal union appeals processes on the basis of futility, finding that union remedies would not restore plaintiff’s position and might not provide adequate relief for two years of lost pay and benefits. The circuit court also found that there was a genuine issue of material fact regarding whether plaintiff’s grievance was properly investigated and whether plaintiff’s grievance had merit. On September 9, 1997, Local 1979 filed a second motion for summary disposition. Raising new grounds in this motion, Local 1979 attempted to separate itself from defendant uaw by arguing that any potential liability for improper handling of the grievance lay only with the uaw. Local 1979 also argued that there could be no breach of duty of fair representation because wsu did not breach the collective bargaining agreement. Finally, Local 1979 repeated the argument that plaintiff was foreclosed from pursuing this action because he failed to exhaust internal union remedies. On November 11, 1997, the circuit court entered an order denying defendant’s motion in its entirety. The court first indicated that defendant’s arguments should have been raised in a motion for rehearing pursuant to' MCR 2.119(F), but that defendant’s motion was untimely under MCR 2.119(F)(1). It then proceeded to liberally construe defendant’s second motion as an application for leave to file a delayed motion for rehearing. The court found that the issues presented were either the same as those originally raised, or were issues that should have been previously raised, and found that defendant demonstrated no palpable error such as would warrant revisiting the issues previously adjudicated. The court also found that defendant’s argument that wsu did not breach its collective bargaining agreement (a required element in a breach of duty of fair representation claim) was premature given that wsu’s motion for summary disposition on that ground was still pending. Defendant’s application for leave ensued. This Court reviews the grant or denial of a motion for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10) tests the factual support for the plaintiff’s claim. Id. This Court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of any material fact exists to warrant a trial. Ritchie-Gamester v Berkley, 461 Mich 73, 76-77; 597 NW2d 517 (1999). Defendant first contends that the trial court erred in finding that plaintiffs conceded failure to exhaust internal union remedies was excusable. We agree. Though not explicitly identified by the parties’ briefs, this labor and employment action involving a state university employee is clearly governed by the public employment relations act (pera), MCL 423.201 et seq.) MSA 17.455(1) et seq. The pera is patterned after the federal National Labor Relations Act (nlra), 29 USC 151 et seq. Demings v Ecorse, 423 Mich 49, 53, 56; 377 NW2d 275 (1985). Acknowledging this relationship, our Supreme Court has stated that “ ‘in construing our state labor statutes we look for guidance to “the construction placed on the analogous provisions of the nlra by the [National Labor Relations Board] and the Federal courts.” ’ ” Id. at 56, quoting Goolsby v Detroit, 419 Mich 660-661, n 5; 358 NW2d 856 (1984), quoting Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 636; 227 NW2d 736 (1975). While we accordingly search for guidance in federal labor cases, we note that “[fjederal precedent is relevant and persuasive only to the extent it is based on similar facts and circumstances and best effectuates the policy of the pera.” Southfield Police Officers Ass’n v Southfield, 433 Mich 168, 184; 445 NW2d 98 (1989). The Supreme Court’s decision in Clayton v Int’l Union, UAW, 451 US 679; 101 S Ct 2088; 68 L Ed 2d 538 (1981), a case arising pursuant to § 301(a) of the Labor Management Relations Act, 29 USC 185(a), provides the appropriate test for resolving the precise question with which we are now faced. As set forth in Clayton, the question is whether, and in what circumstances, an employee alleging that his union breached its duty of fair representation in processing his grievance, and that his employer breached the collective-bargaining agreement, must also attempt to exhaust the internal union appeals procedures established by his union’s constitution before he may maintain his suit under § 301. [Id. at 682.] The Court described the test as follows: As we stated in NLRB v Marine Workers, [391 US 418, 426, and n 8; 88 S Ct 1717; 20 L Ed 2d 706 (1968)], courts have discretion to decide whether to require exhaustion of internal union procedures. In exercising this discretion, at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks under § 301; and third, whether exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee’s failure to exhaust. [Id. at 689.] The test outlined in Clayton has frequently been utilized by the Court of Appeals for the Sixth Circuit in analyzing so-called “hybrid § 301/fair representation” claims. See Wagner v General Dynamics, 905 F2d 126 (CA 6, 1990); Monroe v Int’l Union, UAW, 723 F2d 22 (CA 6, 1983). That court has also applied Clayton to a PERA claim arising as part of a diversity action. See Rogers v Buena Vista Schools Bd of Ed, 2 F3d 163 (CA 6, 1993). Until today, however, Clayton has never been explicitly adopted by Michigan courts in the context of a PERA action. The Court of Appeals for the Sixth Circuit has concisely detailed the internal appeals process at issue in this case: The UAW Constitution requires its members in the case of a complaint or grievance against it to exhaust internal remedies. Under the constitution, an aggrieved member is first bound to seek relief from the membership of his Local, and in the event of failure there to petition the uaw Executive Board. The final source of internal relief is either the Constitutional Convention Appeals Committee or the Public Review Board. [Monroe, supra at 24.] The current UAW constitution, art 33, § 5, provides: It shall be the duty of any individual or body, if aggrieved by any action, decision, or penalty imposed, to exhaust fully the individual or body’s remedy and all appeals under this Constitution and the rules of this Union before going to a civil court or governmental agency for redress. With regard to the Clayton exhaustion test, plaintiff has never asserted that union officials are hostile. Plaintiff did, however, argue below that pursuit of these internal remedies would be futile and would result in unreasonable delay. In this appeal, defendant contends that the circuit court erred in concluding, in agreement with plaintiffs arguments, that the constitutionally required internal appeals would be futile and would result in unreasonable delay. We agree on both counts. With respect to futility, plaintiff contends that the circuit court appropriately found that internal union remedies do not offer full relief because the union cannot return him to the position he occupied before his termination. This argument, however, fails to consider that under Clayton, supra, the adequacy of the remedy is measured by either of two options: reactivation of the grievance or the award of full relief sought. Id. at 689; see also Wagner, supra at 128. The majority in Clayton noted that if a union and an employer have “agreed to allow the reinstatement of withdrawn grievances where a union tribunal reverses the union’s initial decision, . . . the relief available through the union’s internal appeal procedures would presumably be adequate.” Clayton, supra at 691, n 18. Despite the lack of a grievance reinstatement provision in the relevant collective bargaining agreement, in Monroe, supra at 25, the court found that the plaintiff failed to establish futility where a separate “letter agreement” between the union and the employer did include such a provision. The court explicitly noted that this finding was not affected by the plaintiff’s asserted ignorance with regard to the availability of “full relief as defined in Clayton.” Id. at 26. This case presents stronger support than Monroe for a finding that the internal appeal procedures were adequate. In this case, article 8(A) of the collective bargaining agreement between wsu and Local 1979 provides for reinstatement of a grievance by the International Union at the third step of the grievance procedure where, as here, the grievance has previously been withdrawn without prejudice. Furthermore, although article 8(A) provides that wsu’s financial liability in the event of reinstatement dates only from the date of reinstatement, uncontroverted affidavits introduced by defendant indicate that internal union procedure can also result in an award of monetary relief from the union to compensate for such a limitation on recovery from the employer. We find that in combination, these potential remedies satisfactorily present adequate relief as defined in Clayton. Plaintiff also contends that the circuit court properly acknowledged his assertion that resort to internal remedies might prove unseasonable in terms of according him adequate relief, an assertion based on the fact that at the time of the decision below plaintiff had been without pay and benefits for over two years. This argument fails to consider what we find an elementary principle underlying this third factor of the Clayton test: to support a claim of delay, a plaintiff must at least initiate internal union procedures. Having chosen to pursue this litigation instead of appealing through the union, plaintiff himself is the cause of the present delay in resolution of his employment situation. Moreover, plaintiff presents no evidence demonstrating that the internal union procedure consumes an inordinate amount of time. The Court of Appeals for the Sixth Circuit dismissed a similar argument on much the same reasoning, see Wagner, supra at 129, and like that court, we summarily reject this portion of plaintiff’s argument. Plaintiff has failed to show the existence of either inadequate relief or unreasonable delay, and we accordingly find that the circuit court erred in excusing plaintiff’s failure to exhaust internal union remedies. The circuit court’s denial of summary disposition was therefore erroneous. Because this threshold issue is determinative, we need not reach defendant’s additional claims concerning the circuit court’s findings of material issues of fact related to the alleged breach of duty of fair representation. Reversed and remanded for entry of judgment in accord with this opinion. We do not retain jurisdiction. We note that notwithstanding the trial court’s unusual treatment of defendant’s September 9, 1997, motion, because this second motion was based at least in part on different grounds, specifically the reliance on wsu’s contemporaneously asserted lack of breach, the motion was appropriately presented as one for summary disposition. See Markis v Grosse Pointe Park, 180 Mich App 545, 550-551; 448 NW2d 352 (1989). Consequently, we review the issues presented under the standards applicable to motions brought pursuant to MCR 2.116(C)(10), and we disregard plaintiff’s repeated references to procedural irregularity. In AFSCME v Highland Park Bd of Ed, 214 Mich App 182, 187; 542 NW2d 333 (1995), Clayton was cited for the general proposition that courts require the exhaustion of union remedies. This citation was made, however, in reference to the issue of the plaintiff union’s exhaustion of remedies under a collective bargaining agreement, and in the context of a question whether to toll the statute of limitations with respect to a claim that the defendant school board breached the collective bargaining agreement. Our Supreme Court, in a 4-1 decision with four separate opinions, recently affirmed the Court of Appeals decision that the plaintiff’s suit was timely filed. AFSCME v Highland Park Bd of Ed, 457 Mich 74; 577 NW2d 79 (1998). The various justices, however, specifically noted that the application of the exhaustion requirement invokes different considerations when applied to contractual grievance and arbitration procedures rather than to internal union procedures. Id. at 86, n 7 (opinion by Cavanagh, J.), 93, n 1 (opinion by Brickley, J., concurring). The questionable application of Clayton to the claim therein asserted was further indicated by Justice Boyle in her concurring opinion, as she noted first that the action did not involve a breach of the duty of fair representation, and then that the parties had not only failed to distinguish this claim, brought by the union against the employer, from those cases involving an employee’s claim against both employer and union, but that they had also failed to address the implication of the pera. Id. at 98.

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