Injured Party Has Waived Doctor-Patient Privilege Once He Asserts Medical Defense and Releases Preliminary Medical Records

            Plaintiff was injured when he was struck by a vehicle driven by the defendant.  In response to a complaint filed by the plaintiff, the defendant raised the defense of “sudden medical emergency.”   In his answers to a first set of requests for discovery, the defendant admitted that he had recently been prescribed Xanax, and that he took a pill about four hours before the accident.  Medical records that the defendant produced from his emergency room visit showed that he told the doctors that he had taken Xanax and fallen asleep.   He also told the doctors that he has other medical conditions and takes several medications every day.

             Plaintiff served a second set of interrogatories on the defendant some months later, inquiring further into defendant’s medical condition.  Then, defendant’s counsel sent plaintiff a letter stating that he was voluntarily withdrawing his “sudden medical emergency” affirmative defense and would be asserting the physician-patient privilege, MCR 2.314(B)(1), and would not be providing the requested medical information.  The physician-patient privilege is a rule of law which provides that a party may refuse to testify or otherwise produce evidence regarding confidential information between the party and his or her doctor.  Plaintiff filed a motion to compel production of the requested medical information, taking the position that under MCR 2.314(B)(1) which states that a party must assert the privilege in answers to interrogatories or in answers to a request for production for documents and that a privilege not “timely asserted” is waived, the defendant waived the privilege.  The trial court sided with the defendant, finding that the fact that the defendant provided some basic medical information early on did not waive the privilege when the plaintiff later asked for more detailed medical information.

             The Michigan Court of Appeals reversed.  The Court of Appeals noted that MCR 2.314(B) specifically states, in addition to the requirement that the privilege be raised in answers to discovery requests, that a privilege “not timely asserted is waived in that action.”   The Court of Appeals noted that in response to the first interrogatories, requests to produce, and requests to admit, the defendant did not assert that the information sought was privileged.  Further, he provided medical records and other medical information during discovery.  The Court noted that the defendant only asserted the waiver when he believed that the plaintiff’s requests had become intrusive.  That kind of change in strategy is precisely the type of situation that the Supreme Court has declared impermissible.   The Court of Appeals thus ruled that the defendant could not assert the privilege at the later date.

 What This Means For Injured Persons:  

This case is a warning to injured persons, especially defendants, that if you put your medical condition into issue early on, you will not be able to later change your mind and raise the physician-patient privilege in trying to keep out your medical records.  Although the Court of  Appeals in a 1999 opinion held that if a party gratuitously mentions in answers to a first set of interrogatories that they have a certain illness or disease they can still assert the privilege at a later date if they are later asked for medical records, the Court of Appeals in this case was taking a stricter stance  and holding that the mention of a disease/illness and the act of producing emergency room records early on is a waiver of asserting the physician-patient privilege later on.

You can read the entire Michigan Court of Appeals opinion here.

Authored by Barbara A. Assendelft