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Dorris v. Detroit Osteopathic Hospital Corp.6/9/1999
e ordinary layman does not know the type of supervision or monitoring that is required for psychiatric patients in a psychiatric ward. Thus, the trial court erred in not requiring that plaintiff provide a notice of intent to sue and an affidavit of merit as required by §§ 2912b and 2912d.
We note that the appropriate sanction for the failure to provide a notice of intent to sue is dismissal without prejudice. See Neal v Oakwood Hosp, 226 Mich App 701, 715; 575 NW2d 68 (1997).
As to the appropriate sanction for failure to file an affidavit of merit, we find in the present case that dismissal without prejudice is also appropriate. In VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998), the Court of Appeals found that the purpose of the statute was to prevent frivolous medical malpractice claims. In that case, plaintiff did not file an affidavit of merit at the time of filing the complaint; however, the defendants did receive an affidavit of merit at the same time they were served with the summons and the complaint. The Court of Appeals found that defendants did not suffer any prejudice because "they had access to the affidavit of merit from the moment they received the complaint." Id. at 503. In the present case, plaintiff's complaint was unaccompanied by an affidavit of merit at the time of filing and service upon the defendant, and at no time has plaintiff ever supplemented her complaint with an affidavit of merit. Under these circumstances, we hold that dismissal without prejudice would be the appropriate sanction for plaintiff's failure to comply with § 2912d.
Conclusion
We hold that the names of unknown patients are protected by the physician-patient privilege, MCL 600.2157; MSA 27A.2157, and that the defendant hospitals have a duty to refrain from disclosure. The language of MCL 600.2157; MSA 27A.2157 is clear in its prohibition of disclosure of privileged information. Where a patient has neither voluntarily waived the privilege nor impliedly done so as specifically provided within § 2157, there are strong public policy reasons for applying the physician-patient privilege to disclosure of an unknown patient's name. A patient who fears disclosure may be chilled from seeking medical assistance.
We also hold that the Gregory trial court erred in ordering the defendant hospital to provide plaintiff with any investigative reports relative to the incident report; any statements made by any person with respect to the incident; and any notes, memoranda, records, and reports related to the incident. Defendant argues that this information was collected by the defendant hospital for the purpose of retrospective review by a peer committee and should be protected from discovery pursuant to MCL 333.20175; MSA 14.15(20175) and MCL 333.21515; MSA 14.15(21515). However, because plaintiff was not afforded the opportunity to challenge whether information sought was actually collected for the purpose of retrospective review by a peer committee, we remand to the trial court to allow plaintiff to test the veracity of defendant hospital's procedures.
We also hold that the Gregory trial court erred in denying defendant hospital's motions for summary disposition for plaintiff's failure to file a notice of intent and for plaintiff's failure to file an affidavit of merit. The supervision and monitoring of psychiatric patients in a psychiatric ward involves questions of professional medical management and, therefore, cannot be judged by the common knowledge and experience of a jury. Thus, plaintiff Gregory's claim was one of medical malpractice and subject to MCL 600.2912b; MSA 27A.2912(2) and MCL 600.2912d; MSA 27A.2912(4). Given that plaintiff Greg
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