Levin, J.
The question presented is whether MCR 2.314(B)(2), providing that a party who asserts that "medical information” is subject to a privilege may not thereafter introduce evidence of the patient’s physical condition, applies where the physician-patient privilege is asserted at a deposition. We hold that the sanction does not apply where the privilege is asserted at a deposition, and that the circuit court erred in dismissing plaintiff’s complaint.
We are persuaded, however, that the sanction set forth in MCR 2.314(B)(2) should be made applicable where the physician-patient privilege is asserted at a deposition. This court rule is today amended to make that sanction applicable to assertions of the privilege at a deposition and in other specified areas of discovery effective September 1, 1994.
I
Billie Jean Gibson was admitted to Bronson Methodist Hospital in a comatose state. Surgery was performed six weeks later, a hematoma was removed from her brain, but she suffered serious residual effects.
Robert Gibson, for himself and as next friend of his daughter, a minor, commenced this action to recover damages, claiming, not malpractice, but that the defendant hospital and physician misrep[334]*334resented the availability of a second opinion concerning Billie Jean’s condition.1
Defendants scheduled the deposition of two physicians who had been consulted concerning Billie Jean’s care. At the beginning of the deposition, plaintiff’s counsel announced that his client had not waived the physician-patient privilege and he had no authority to waive it on her behalf. At one point he stated that he "asserted” the privilege. The depositions did not proceed.
Defendants moved for summary disposition, contending that plaintiff’s assertion of the privilege meant that he "may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition.” MCR 2.314(B)(2). The circuit court agreed and dismissed the complaint. The Court of Appeals affirmed.2
II
A majority of the Court of Appeals, agreeing with the circuit judge, held that the sanction provided in MCR 2.314(B)(2) applies to an assertion of the physician-patient privilege during a deposition. The dissenting judge agreed with the plaintiff that the sanction applies only where a party asserts the privilege in response to a request for [335]*335production of documents under MCR 2.310.3 We agree with the dissenting judge.
MCR 2.314 concerns the discovery of "medical information.” The rule states that "[m]edical information subject to discovery includes, but is not limited to, medical records in the possession or control of a physician, hospital, or other custodian.”4 The rule also states that medical information about the condition of a party "is subject to discovery under MCR 2.310,”5 which provides for the production of "documents and things,” and that a party may serve on another person a request to "inspect and copy designated documents . . . .”6
MCR 2.314 provides that a party who wishes to assert a privilege and prevent discovery of medical information, must assert the privilege "in the party’s written response under MCR 2.310.”7 MCR 2.314 continues that a party who is served with a request for production of medical information under MCR 2.310 must "make the information available for inspection and copying,” or assert a privilege, or object to the request as permitted by MCR 2.310(B)(2), or "furnish the requesting party with signed authorizations in the form approved by the state court administrator sufficient in number to [336]*336enable the requesting party to obtain the information requested from persons, institutions, hospitals, and other custodians in actual possession of the information requested.”8
MCR 2.314 clearly contemplates the discovery of documentary or tangible medical information9 rather than testimonial medical information. The staff comment to MCR 2.314 bears this out, stating "MCR 2.314 is largely new and covers discovery of medical records of a party via request for production under MCR 2.310. There were related provisions in GCR 1963, 506.7 regarding subpoenas for production of hospital records.”
iii
Defendants rely on Domako v Rowe, 438 Mich 347, 356; 475 NW2d 30 (1991). This Court there considered the physician-patient privilege10 and held that it was proper for the defendant physician’s lawyer to conduct an ex-parte interview of the plaintiff’s treating physician in the circumstance that the physician-patient privilege had been waived when the plaintiff signed authorization forms permitting the release of medical information requested under MCR 2.310. This Court said: "The privilege was not asserted, and the plain language of MCR 2.314(B)(1) declares that if the privilege is not asserted in a written response to a request to produce, it is waived for purposes of that action.” (Emphasis added.)
iv
Defendants advance a number of policy argu[337]*337ments. We are persuaded that the sanction set forth in MCR 2.314(B)(2) should be made applicable where the physician-patient privilege is asserted at a deposition. This court rule and MCR 2.302 and 2.306 are today amended as set forth in appendix a to make the sanction set forth in MCR 2.314(B)(2) applicable to assertions of the privilege at a deposition and in other specified areas of discovery effective September 1, 1994.11
Reversed and remanded to the circuit court.
Brickley and Mallett, JJ., concurred with Levin, J.
APPENDIX A
[The language struck through is repealed and the underlined language is added.]
Rule 2.302 General Rules Governing Discovery
(A) [Unchanged.]
(B) Scope of Discovery.
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party, including the existence, description, nature, custody, condition, and location of books, documents, or other tangible things and the identity and location of persons having knowledge of a discoverable matter.
(a) It is not ground for objection that the information sought will be inadmissible at trial if the [338]*338information sought appears reasonably calculated to lead to the discovery of admissible evidence.
W/A/táíty/im/lááá/á/&hH^/té¿imá¿/^ ói/áll/ómM/téátiihóúi/óf/Á/délóÁéM/TÍiúét/émél á¿¿éwmé/i>mméé/át/tM/dé¿ómm/ómó¿é/mé fólAHé&é/dé/té/tAát/téétixtióAtf/ tétii¡Mi*dééé/éf/thé diíiddl/AJiidttfNfdé/éláMié/á/ fflMüé¿é/dt/¿/ défaéiU mAfrhdi/A6t/dt/tM/méA/6tféMM/tééthh6Ái/ómM déAdAéM/i>é/télAiM/tómé/éméMémm/éd/té/Át mé/déAéémddi
(2)-(4) [Unchanged.]
(C) -(H) [Unchanged.]
Rule 2.306 Depositions on Oral Examination
(A)-(C) [Unchanged.]
Free access — add to your briefcase to read the full text and ask questions with AI
Levin, J.
The question presented is whether MCR 2.314(B)(2), providing that a party who asserts that "medical information” is subject to a privilege may not thereafter introduce evidence of the patient’s physical condition, applies where the physician-patient privilege is asserted at a deposition. We hold that the sanction does not apply where the privilege is asserted at a deposition, and that the circuit court erred in dismissing plaintiff’s complaint.
We are persuaded, however, that the sanction set forth in MCR 2.314(B)(2) should be made applicable where the physician-patient privilege is asserted at a deposition. This court rule is today amended to make that sanction applicable to assertions of the privilege at a deposition and in other specified areas of discovery effective September 1, 1994.
I
Billie Jean Gibson was admitted to Bronson Methodist Hospital in a comatose state. Surgery was performed six weeks later, a hematoma was removed from her brain, but she suffered serious residual effects.
Robert Gibson, for himself and as next friend of his daughter, a minor, commenced this action to recover damages, claiming, not malpractice, but that the defendant hospital and physician misrep[334]*334resented the availability of a second opinion concerning Billie Jean’s condition.1
Defendants scheduled the deposition of two physicians who had been consulted concerning Billie Jean’s care. At the beginning of the deposition, plaintiff’s counsel announced that his client had not waived the physician-patient privilege and he had no authority to waive it on her behalf. At one point he stated that he "asserted” the privilege. The depositions did not proceed.
Defendants moved for summary disposition, contending that plaintiff’s assertion of the privilege meant that he "may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition.” MCR 2.314(B)(2). The circuit court agreed and dismissed the complaint. The Court of Appeals affirmed.2
II
A majority of the Court of Appeals, agreeing with the circuit judge, held that the sanction provided in MCR 2.314(B)(2) applies to an assertion of the physician-patient privilege during a deposition. The dissenting judge agreed with the plaintiff that the sanction applies only where a party asserts the privilege in response to a request for [335]*335production of documents under MCR 2.310.3 We agree with the dissenting judge.
MCR 2.314 concerns the discovery of "medical information.” The rule states that "[m]edical information subject to discovery includes, but is not limited to, medical records in the possession or control of a physician, hospital, or other custodian.”4 The rule also states that medical information about the condition of a party "is subject to discovery under MCR 2.310,”5 which provides for the production of "documents and things,” and that a party may serve on another person a request to "inspect and copy designated documents . . . .”6
MCR 2.314 provides that a party who wishes to assert a privilege and prevent discovery of medical information, must assert the privilege "in the party’s written response under MCR 2.310.”7 MCR 2.314 continues that a party who is served with a request for production of medical information under MCR 2.310 must "make the information available for inspection and copying,” or assert a privilege, or object to the request as permitted by MCR 2.310(B)(2), or "furnish the requesting party with signed authorizations in the form approved by the state court administrator sufficient in number to [336]*336enable the requesting party to obtain the information requested from persons, institutions, hospitals, and other custodians in actual possession of the information requested.”8
MCR 2.314 clearly contemplates the discovery of documentary or tangible medical information9 rather than testimonial medical information. The staff comment to MCR 2.314 bears this out, stating "MCR 2.314 is largely new and covers discovery of medical records of a party via request for production under MCR 2.310. There were related provisions in GCR 1963, 506.7 regarding subpoenas for production of hospital records.”
iii
Defendants rely on Domako v Rowe, 438 Mich 347, 356; 475 NW2d 30 (1991). This Court there considered the physician-patient privilege10 and held that it was proper for the defendant physician’s lawyer to conduct an ex-parte interview of the plaintiff’s treating physician in the circumstance that the physician-patient privilege had been waived when the plaintiff signed authorization forms permitting the release of medical information requested under MCR 2.310. This Court said: "The privilege was not asserted, and the plain language of MCR 2.314(B)(1) declares that if the privilege is not asserted in a written response to a request to produce, it is waived for purposes of that action.” (Emphasis added.)
iv
Defendants advance a number of policy argu[337]*337ments. We are persuaded that the sanction set forth in MCR 2.314(B)(2) should be made applicable where the physician-patient privilege is asserted at a deposition. This court rule and MCR 2.302 and 2.306 are today amended as set forth in appendix a to make the sanction set forth in MCR 2.314(B)(2) applicable to assertions of the privilege at a deposition and in other specified areas of discovery effective September 1, 1994.11
Reversed and remanded to the circuit court.
Brickley and Mallett, JJ., concurred with Levin, J.
APPENDIX A
[The language struck through is repealed and the underlined language is added.]
Rule 2.302 General Rules Governing Discovery
(A) [Unchanged.]
(B) Scope of Discovery.
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party, including the existence, description, nature, custody, condition, and location of books, documents, or other tangible things and the identity and location of persons having knowledge of a discoverable matter.
(a) It is not ground for objection that the information sought will be inadmissible at trial if the [338]*338information sought appears reasonably calculated to lead to the discovery of admissible evidence.
W/A/táíty/im/lááá/á/&hH^/té¿imá¿/^ ói/áll/ómM/téátiihóúi/óf/Á/délóÁéM/TÍiúét/émél á¿¿éwmé/i>mméé/át/tM/dé¿ómm/ómó¿é/mé fólAHé&é/dé/té/tAát/téétixtióAtf/ tétii¡Mi*dééé/éf/thé diíiddl/AJiidttfNfdé/éláMié/á/ fflMüé¿é/dt/¿/ défaéiU mAfrhdi/A6t/dt/tM/méA/6tféMM/tééthh6Ái/ómM déAdAéM/i>é/télAiM/tómé/éméMémm/éd/té/Át mé/déAéémddi
(2)-(4) [Unchanged.]
(C) -(H) [Unchanged.]
Rule 2.306 Depositions on Oral Examination
(A)-(C) [Unchanged.]
(D) Motion to Terminate or Limit Examination.
(1)-(3) [Unchanged.]
(4) A party who has a privilege regarding part or all of the testimony of a deponent must either assert the privilege at the deposition or lose the privilege as to that testimony for purposes of the action. A party who claims a privilege at a deposition may not at the trial offer the testimony of the deponent pertaining to the evidence objected to at the deposition. A party who asserts a privilege regarding medical information is subject to the provisions of MCR 2.314(B).
(E) -(G) [Unchanged.]
Rule 2.314 Discovery of Medical Information Concerning Party
(A) Scope of Rule.
(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 MCR/2/310to the extent that
[339]*339(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.
(3) For purposes of this rule, medical information about a mental or physical condition of a party is within the control of the party, even if the information is not in the party’s immediate physical possession.
(B) Privilege; Assertion; Waiver; Effects.
(1) A party who has a valid privilege may assert the privilege and prevent discovery of medical information relating to his or her mental or physical condition. The privilege must be asserted in the party’s written response to a request for production of documents under MCR 2.310, in answers to interrogatories under MCR 2.309(B), before or during the taking of a deposition, or by moving for a protective order under MCR 2.302(C). A privilege not timely asserted is waived in that action, but is not waived for the purposes of any other action.
(2) [Unchanged.]
(C) -(D) [Unchanged.]
miwéimmmMim
ay™á/mé/Méá/Mt/$iéiréM/tM/Mééóiréíi/óf táédiéáZ / iúfótdíátlóÁ / iií / ¿Mééáiúgá / brídéf / MCR mm/óí/ótMi/iumiéM/óf/tMéé/ímú/.
(WTMé/mé/áóé¿/úót/&éMútmé/áááéttm/óf/á / áf / á / tirhé / éi/iú/ á / rtíáááéi / éíMiifííé ¿éírhmémfmééé/méi/.
(E) [Formerly (F), redesignated, but otherwise unchanged.]
[340]*340Staff Comment: The June 7, 1994 amendments make several changes in the provisions of the discovery rules dealing with assertion of privileges.
The language of former MCR 2.302(B)(1)(b) is moved to the deposition rule as new MCR 2.306(D)(4), and a cross reference to MCR 2.314 is added.
Several changes are made in MCR 2.314, the rule regarding discovery of medical information. As amended, the rule would apply the preclusive effect of subrule (B)(1) to a party who asserts a privilege as to medical information in connection with depositions and interrogatories as well as to requests for production of documents.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.