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STATE OF MICHIGAN
COURT OF APPEALS


SHERYL KNIGHT and STEVE KNIGHT, Plaintiffs-Appellants, v KARL OTTO MUELLER, Defendant, and WILLIAM C. BUCKNAM, M.D., Defendant-Appellee.

UNPUBLISHED April 28, 2000

No. 212478 Washtenaw Circuit Court LC No. 96-002725-NI

Before: Hood, P.J., and Smolenski and Talbot, JJ. PER CURIAM. Plaintiffs appeal as of right the trial court's order granting of summary disposition in favor of defendant William C. Bucknam, M.D. pursuant to MCR 2.116(C)(10). We affirm. This appeal arises out of an automobile accident that occurred in Ypsilanti on October 3, 1995. Karl Mueller was traveling on Dixboro Road when his vehicle crossed the center lane and collided with a vehicle driven by plaintiff Sheryl Knight, which was traveling in the opposite direction. When the police arrived at the scene ten to fifteen minutes later, Mueller told them that "he could not explain why he was on the wrong side of the road" and that he was "having a manic episode."1 Defendant Bucknam had treated Mueller for his psychiatric disorder for over eight years and, on the day of the accident, the two had met at Bucknam's office. Bucknam then drove to the hospital, with Mueller following in his own car. When Bucknam arrived at the hospital, he noticed that Mueller had not followed him into the parking lot, so he retraced the route and eventually arrived at the accident scene. After speaking with Mueller at the scene, Bucknam told a police officer that Mueller was "having a manic episode." About a month after the accident, Bucknam completed a psychiatric

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evaluation at Mueller's request and submitted it to the Secretary of State for the purpose of restoring his driving privileges. Plaintiffs initially sued only Mueller, alleging that he was negligent in failing to yield the right of way to southbound traffic. During discovery, Mueller did not assert his psychiatric condition as a defense to the accident and admitted negligence. Both Mueller and Bucknam were subsequently deposed for the purpose of establishing plaintiffs' damages. At the depositions, Mueller's counsel objected to questions concerning his medical condition or treatment based on the physician-patient privilege either at the outset or in response to specific inquires, and confirmed that Mueller would not waive the privilege. Plaintiffs then amended the complaint to add Bucknam as a defendant, alleging that his special relationship with Mueller gave rise to a duty to protect third persons who might be foreseeably injured by Mueller's unsafe driving and that he breached that duty.2 In response to the allegations against Bucknam, Mueller asserted the physician-patient privilege as a bar to any inquiry concerning his psychiatric condition or treatment. Plaintiffs subsequently filed a motion to deem the physician-patient privilege waived on grounds that Mueller had voluntarily disclosed information concerning his condition and treatment during discovery. The trial court denied the motion, ruling that any information regarding Bucknam's treatment of Mueller that Mueller had already disclosed (i.e., answers to interrogatories and deposition questions, and documents submitted to the Secretary of State) remained unprivileged, but that plaintiffs could not "compel the disclosure of further information." Bucknam moved for summary disposition, arguing that the trial court's decision to uphold the privilege, although proper, would result in a denial of due process because it would prevent him from introducing evidence necessary to defend against plaintiffs' claims, and alternatively, that plaintiffs could not establish a prima facie case of negligence without such evidence. Plaintiffs filed a response and moved for partial summary disposition under MCR 2.116(I)(2), contending that Bucknam's admissions in his deposition and other evidence established his liability as a matter of law. The trial court granted summary disposition for Bucknam based on the due process theory, and expressly declined to review plaintiff's motion for summary disposition.3 On appeal, plaintiffs argue that the trial court abused its discretion in concluding that Mueller did not waive the physician-patient privilege with respect to medical information not disclosed during discovery. We disagree. This Court reviews a trial court's decision to grant or deny discovery for an abuse of discretion. Dorris v Detroit Osteopathic Hospital Corp, 220 Mich App 248, 250; 559 NW2d 76 (1996). The physician-patient privilege prohibits a physician from disclosing information acquired when attending a patient in a professional character if the information was necessary to enable the physician to prescribe for the patient as a physician. MCL 600.2157; MSA 27A.2157; Dorris v Detroit Osteopathic Hospital Corp, 460 Mich 26, 33; 594 NW2d 455 (1999). The purpose of the privilege is to protect the confidential nature of the physician-patient relationship and to encourage a patient to make a full disclosure of symptoms and conditions. Id. In addition to the statutory privilege, the court rules contain several provisions regarding the discovery of medical information. MCR 2.314(A)(1)(b) provides in part that, "[w]hen a mental or physical condition of a party is in controversy, medical information is subject to discovery under these rules to the extent that . . . the party does not assert that -2

the information is subject to a valid privilege." (Emphasis added). See also Domako v Rowe, 438 Mich 347, 354; 475 NW2d 30 (1991). The privilege belongs to the patient and, once asserted, can be waived only by the patient. Herald Co, Inc v Ann Arbor Public Schools, 224 Mich App 266, 276; 568 NW2d 411 (1997). A true waiver is an intentional, voluntary act, which has been defined as the "voluntary relinquishment of a known right." Kelly v Allegan Circuit Judge, 382 Mich 425, 427; 169 NW2d 916 (1969); Dorris, supra at 39. MCR 2.314(B)(1) also permits an implied waiver when the patient fails to timely assert the privilege in the party's written response to a request for production of documents, in answers to interrogatories, before or during the taking of a deposition, or by moving for a protective order. See also Landelius v Sackellares, 453 Mich 470, 475; 566 NW2d 472 (1996); Domako, supra at 354 355. Plaintiffs' contention that Mueller waived the privilege when he voluntarily disclosed information regarding his medical condition and treatment on three occasions during discovery lacks merit. Plaintiffs first refer to medical information contained in the psychological evaluation Bucknam submitted to the State for the purpose of restoring Mueller's driving privileges. However, we find no waiver where, as here, the disclosure was made before the suit against Mueller had been filed, Mueller only authorized the release of the information to the State for a specific purpose, and plaintiffs subpoenaed the report from the State. See also Kelly, supra (a physician's letter to the defendant insurance company describing the medical condition of the insured did not effect a waiver of the physician-patient privilege). Nor can we conclude that Mueller's responses to interrogatories constituted an intentional relinquishment of the privilege. The answers merely provided basic information regarding his present condition, treating physician's name, and medication; they did not include specific details regarding either his treatment or his condition on the day of the accident. Further, because Mueller's condition was not "in controversy" at the time he responded to the interrogatories, the implied waiver provisions contained within MCR 2.314(B)(1) did not apply. Cf. Domako, supra; see also LeGendre v Monroe County, 234 Mich App 708; 600 NW2d 78 (1999). Plaintiffs also assert that Mueller waived the privilege by discussing the psychological condition and treatment during his deposition. In the portion of the deposition to which plaintiffs refer, Mueller testified that he had Bucknam complete the evaluation for the State and confirmed that the statements therein were accurate; that on the day of the accident he questioned whether he was entering into a manic episode and saw Bucknam to allow him to make the determination; and, that he thought the accident occurred just before or at the beginning of a manic episode. Again, we cannot conclude that this testimony expressly or impliedly waived the privilege where Mueller did not provide specific information regarding his treatment on the day of the accident, his counsel announced at the outset that Mueller would not waive the privilege, and his counsel objected to inquiry regarding medical information which had not been previously disclosed.4 Accordingly, the trial court correctly determined that the privilege had not been waived. Next, plaintiffs argue that the trial court erred in granting Bucknam's motion for summary disposition. We disagree. This Court reviews a motion for summary disposition de novo. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In reviewing a motion brought -3

pursuant to MCR 2.116(C)(10), the court considers the documentary evidence in the light most favorable to the nonmoving party. Id., quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Summary disposition is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 454-455, quoting Quinto, supra at 362. Even if we were to assume that the trial court erred in granting summary disposition based on Bucknam's due process claim as plaintiffs contend, we conclude that summary disposition was proper under Bucknam's alternative theory

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