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Dorris v. Detroit Osteopathic Hospital Corp.6/9/1999
t with Porter v Michigan Osteopathic Hosp Ass'n, Inc, information falls within the scope of the physician-patient privilege only if it is acquired by a physician in his professional character, and is "'necessary to enable him to prescribe . . . as a physician.'" In Porter, the Court of Appeals properly held that disclosure of names of unknown patients suspected of assaulting the plaintiff did not require disclosure of information "'necessary to enable [a physician] to prescribe . . . as a physician.'" Id. at 623.
The majority astutely notes that Porter also involved the psychiatrist-patient privilege, which "prevents the discovery of 'a communication made to a psychiatrist or psychologist in connection with the examination, diagnosis, or treatment of a patient . . . .'" Id. However, in Porter, the Court of Appeals properly held that disclosure of names of unknown patients suspected of assaulting the plaintiff did not require disclosure of information "necessary for purposes of examination, diagnosis and treatment." Id. As a result, the Court of Appeals concluded that the patient names were not protected by either privilege.
In this case, the majority disregards the plain language of the statute. Instead, it emphasizes that the purpose of the statute is to protect the confidential nature of the physician-patient relationship and to encourage a full disclosure of symptoms and conditions. Domako v Rowe, 438 Mich 347, 354; 475 NW2d 30 (1991).
However, in Domako, this Court explained:
An attempt to use the privilege to control the timing of the release of information exceeds the purpose of the privilege and begins to erode the purpose of waiver by repressing evidence. Both consequences are anathema to the open discovery policy of our state. The statute and the court rule both allow waiver, thus striking an appropriate balance between encouraging confident disclosure to one's physician and providing full access to relevant evidence should a charge of malpractice follow treatment. [Id. at 355.]
Like the waiver provision, the limitation on information provided by the physician-patient privilege strikes a balance "between encouraging confident disclosure" and "providing full access to relevant evidence." See Domako, supra at 355. I believe that the majority has upset this balance by unduly broadening the physician-patient privilege.
I would reverse the judgment of the Court of Appeals and conclude that the unknown patient names are not protected by the physician patient privilege.
Cavanagh, J., concurred with Kelly, J.
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