                          STATE OF MICHIGAN

                           COURT OF APPEALS



WILLIAM BRANDON,                                                   UNPUBLISHED
                                                                   February 23, 2016
              Plaintiff-Appellant,
V                                                                  No. 324712
                                                                   Livingston Circuit Court
DENISE L. HANDELSMAN, D.O.,                                        LC No. 13-027756-NO

              Defendant-Appellee.


Before: O’CONNELL, P.J., and OWENS and BECKERING, JJ.

O’CONNELL, P.J. (dissenting).

       I respectfully dissent. I agree with the majority’s able rendition of the facts and law in
the case, but I disagree with the application. I conclude that the claims in this case raise
questions of medical judgment beyond the realm of common knowledge and experience.
Accordingly, I would affirm the learned trial court’s determination that these claims sound in
medical malpractice.

       Regarding medical judgment, this Court must determine

       whether the claim raises questions of medical judgment requiring expert
       testimony or, on the other hand, whether it alleges facts within the realm of a
       jury’s common knowledge and experience. If the reasonableness of the health
       care professionals’ action can be evaluated by lay jurors, on the basis of their
       common knowledge and experience, it is ordinary negligence. If, on the other
       hand, the reasonableness of the action can be evaluated by a jury only after having
       been presented the standards of care pertaining to the medical issue before the
       jury explained by experts, a medical malpractice claim is involved. [Bryant v
       Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 419; 684 NW2d 864 (2004).]

Wrongful disclosure of privileged medical information may form the basis of a malpractice
action. See Saur v Probes, 190 Mich App 636, 637; 476 NW2d 496 (1991).

        In this case, the alleged wrongful conduct was defendant’s act of recommending to
plaintiff’s wife a book on borderline personality disorder and breached related confidentiality
standards in MCL 600.2157, MCL 333.16221(e)(ii), and 45 CFR 165.508(a)(1). Nothing in the
record establishes the scope of this duty concerning spouses when (1) both spouses are
individually the doctor’s patients, and (2) much of the doctor’s therapy concerns the effects of

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the patients’ behavior on each other. Expert testimony would be necessary to determine whether
the book recommendation was an exercise of medical judgment regarding plaintiff’s therapy (for
instance, if plaintiff’s wife understanding plaintiff’s condition better would be beneficial to
plaintiff’s therapy), and, if so, whether disclosing that information breached any standards of
confidentiality.     Plaintiff’s repeated references to defendant’s “unprofessional” conduct
additionally illustrate that expert testimony would be required. Whether a doctor’s conduct is
professionally reasonable is not within the realm of common experience of any juror. I conclude
that plaintiff’s claims implicate questions of medical judgment, regardless of whether they sound
in negligence or intentional tort.

       I would affirm.

                                                           /s/ Peter D. O’Connell




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