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Dorris v. Detroit Osteopathic Hospital Corp.6/9/1999
nce.
MCR 2.302(B)(1) clearly prohibits discovery of privileged information. We agree with Judge MacKenzie's dissent in Porter, supra at 627, that " he concept of privilege thus supersedes even the liberal discovery principles of this state."
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.
Historically, confidentiality has been understood to be necessary to promote full disclosure of a patient's medical history and present medical concerns. See Briesenmeister v Knights of Pythias, 81 Mich 525, 531; 45 NW 977 (1890). As the dissent notes, "information falls within the purview of the physician-patient privilege only if it was `necessary' to enable a physician `to prescribe' for a patient." Slip op at 3. The dissent goes on to argue that we have disregarded this language and render the language of the statute surplusage. However, patients armed with the knowledge that their name may not be kept confidential may not be as willing to reveal their full medical history for fear that, ultimately, that information, too, may lose its confidential status. This chilling of the patient's desire to disclose would have a detrimental effect on the physician's ability to provide effective and complete medical treatment and is therefore "necessary" to enable a physician "to prescribe" for a patient.
A patient may intentionally and voluntarily waive the privilege. See Kelly v Allegan Circuit Judge, 382 Mich 425; 169 NW2d 916 (1969). A patient may also impliedly waive the privilege as specifically provided for with § 2157. However, the patients in the present cases have neither voluntarily nor impliedly waived their right to the privilege. Therefore, this Court's rationale in Schechet is equally applicable to the present cases. That Court found:
It need only be said that no question of waiver of privilege is before us; . . . that the third party information plaintiff would have disclosed could in no view of the cited rules of court be regarded as "matter not privileged which is admissible under the rules of evidence governing trials," and that the circuit court erred reversibly in failing to uphold the defendant physician's right-no duty-to refrain from disclosure . . . . [372 Mich 350-351.]
III.
In Gregory, the trial court ordered the defendant hospital to provide Gregory 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. Heritage argues that the incident report, as well as any other information maintained in furtherance of the hospital's quality assurance and peer review function is protected from discovery by statute.
Two Michigan statutes govern the confidentiality of records, reports, and other information collected or used by peer review committees in the furtherance of their duties. MCL 333.20175; MSA 14.15(20175) addresses a hospital's duty to keep and maintain records regarding all treatment given to patients at that facility. It also addresses the confidentiality of peer review records. Section 20175(8) provides:
The records, data, and knowledge collected for or by individuals or committees a
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