                          STATE OF MICHIGAN

                            COURT OF APPEALS


DAVID SUTTON,                                                        UNPUBLISHED
                                                                     March 13, 2018
               Plaintiff-Appellant,

v                                                                    No. 336526
                                                                     Oakland Circuit Court
ADVANCE PHARMACEUTICAL,                                              LC No. 2014-144679-CZ

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

PER CURIAM.

       In this product liability action, plaintiff appeals as of right the trial court’s order
dismissing his case without prejudice. We reverse.

        Plaintiff sued defendant on various theories of product liability, claiming that he suffered
injury when he mistakenly ingested prescription acetaminophen tablets believing they were low-
dose aspirin tablets.1 Defendant moved in the trial court to compel plaintiff to sign authorization
forms for release of his medical records. Over plaintiff’s physician-patient privilege objections,
the trial court granted defendant’s motion, yet plaintiff refused to sign. The following day, the
trial court entered an order dismissing plaintiff’s case without prejudice. This appeal followed.

        On appeal, plaintiff argues that the trial court committed error requiring reversal by
granting defendant’s motion to compel him to sign the authorization forms. Plaintiff contends
that the medical records sought by defendant were protected by physician-patient privilege, and
we agree.

      “This Court reviews rulings on motions to compel discovery for an abuse of discretion.”
Cabrera v Ekema, 265 Mich App 402, 406; 695 NW2d 78 (2005). “[A]n abuse of discretion


1
  This is the second appeal in this case. In Docket No. 328038, plaintiff appealed the court’s
dismissal of his case for failure to pay a $500 sanction. We reversed and remanded the case
because the $500 sanction was improper and dismissal was an inappropriate remedy for failure to
pay. See Sutton v Advance Pharmaceutical, unpublished per curiam opinion of the Court of
Appeals, issued October 25, 2016 (Docket No. 328038).


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occurs only when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).

        Here, defendant sought medical records from plaintiff’s treating physicians to determine
whether plaintiff was taking any other medications at the time of the alleged injury that may have
caused side effects similar to the ones identified in his complaint. MCR 2.314(C)(1) clearly
contemplates requiring a party to sign authorizations as a method of enforcing compliance with
the discovery of non-privileged information. That rule provides:

                (1) A party who is served with a request for production of medical
         information under MCR 2.310 must either:

                (a) make the information available for inspection and copying as
         requested;

                (b) assert that the information is privileged;

                (c) object to the request as permitted by MCR 2.310(C)(2); or

                (d) furnish the requesting party with signed authorizations in the form
         approved by the state court administrator sufficient in number to enable the
         requesting party to obtain the information requested from persons, institutions,
         hospitals, and other custodians in actual possession of the information requested.

Further, MCR 2.314(A) provides, in pertinent part:

                 (1) When a mental or physical condition of a party is in controversy,
         medical information about the condition is subject to discovery under these rules
         to the extent that

                (a) the information is otherwise discoverable under MCR 2.302(B), and

                 (b) the party does not assert that the information is subject to a valid
         privilege.

                (2) Medical information subject to discovery includes, but is not limited
         to, medical records in the possession or control of a physician, hospital, or other
         custodian, and medical knowledge discoverable by deposition or interrogatories.

       Here, plaintiff asserted that the medical records sought by defendant were privileged, and
therefore not discoverable. MCR 2.314(C)(1)(b); MCR 2.314(A)(1)(b).2 Specifically, plaintiff



2
    But see MCR 2.314(B)(2), which states:




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asserted the physician-patient privilege, which has its roots in MCL 600.2157. MCL 600.2157
states in relevant part:

               Except as otherwise provided by law, a person duly authorized to practice
       medicine or surgery shall not disclose any information that the person has
       acquired in attending a patient in a professional character, if the information was
       necessary to enable the person to prescribe for the patient as a physician, or to do
       any act for the patient as a surgeon.

“The purpose underlying the privilege is to protect the confidential nature of the physician-
patient relationship, and to encourage patients to make full disclosure of their symptoms and
conditions.” Landelius v Sackellares, 453 Mich 470, 474; 556 NW2d 472 (1996). However,
“[t]he statute [also] contains what is commonly referred to as a patient-litigator exception.” Id.
That provision of the statute states:

       If the patient brings an action against any defendant to recover for any personal
       injuries, or for any malpractice, and the patient produces a physician as a witness
       in the patient’s own behalf who has treated the patient for the injury or for any
       disease or condition for which the malpractice is alleged, the patient shall be
       considered to have waived the privilege provided in this section as to another
       physician who has treated the patient for the injuries, disease, or condition. [MCL
       600.2157.]

“Under this provision, a waiver of the physician-patient privilege is presumed with respect to
treating doctors, if the patient brings an action for personal injury or other malpractice and
produces another treating physician as a witness.” Landelius, 453 Mich at 474.

        In this case, plaintiff is the patient and has brought an action for personal injury against
defendant. However, nothing in the record indicates that plaintiff has produced his own treating
physician or “produced another treating physician as a witness” which would trigger the
application of the patient-litigator exception. In fact, the only witness plaintiff has identified at
this point in the litigation is Regan D. Carney, who states in her affidavit that she lived with
plaintiff and observed him ingest the pills. Although defendant argues that plaintiff intends to
rely on his treating physician, plaintiff’s discovery responses do not support that assertion.
Accordingly, because plaintiff has asserted a valid privilege to his medical records, the trial court



              Unless the court orders otherwise, if a party asserts that the medical
       information is subject to a privilege and the assertion has the effect of preventing
       discovery of medical information otherwise discoverable under MCR 2.302(B),
       the party may not thereafter present or introduce any physical, documentary, or
       testimonial evidence relating to the party’s medical history or mental or physical
       condition.




                                                -3-
abused its discretion by ordering plaintiff to sign authorization forms so that defendant could
obtain those records.

       Reversed.


                                                          /s/ Michael J. Kelly
                                                          /s/ Kathleen Jansen
                                                          /s/ Patrick M. Meter




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