Lawrence v. Bay Osteopathic Hospital, Inc

437 N.W.2d 296, 175 Mich. App. 61

Opinions

S. B. Miller, J.

Defendants Dhana Shrestha, M.D. and Dhana Shrestha, M.D., P.C., appeal as of right from an order and that portion of a judgment issued by Bay Circuit Judge William J. Caprathe imposing sanctions upon defendants Shrestha and Bay Osteopathic Hospital.

The issue on appeal is whether the trial court erred in determining that defense counsel acted improperly in conducting an ex parte interview of Dr. Woolliscroft, decedent’s treating physician subsequent to defendants’ alleged malpractice, without plaintiffs’ consent and without the permission of plaintiffs’ attorney.

The recent case of Jordan v Sinai Hospital of Detroit, Inc, 171 Mich App 328; 429 NW2d 891 (1988), examined the issue of ex parte interviews of treating physicians by opposing counsel. The parties in Jordan presented the same arguments advanced by the parties in the present case. We concur with the reasoning in Jordan and agree with its holding that ex parte interviews by defense counsel of a plaintiff’s treating physician without the plaintiff’s consent and the presence of plaintiff’s counsel at any face-to-face meeting between defense counsel and plaintiff’s treating physician are prohibited.

We hold that the trial court in the instant case did not err in concluding that defense counsel acted improperly in conducting an ex parte interview of Dr. Woolliscroft without plaintiffs’ consent. However, we believe that the imposition of sanctions against defendants by the trial court was not warranted in this case.

At the time defendants contacted Dr. Woolliscroft, the state of the law was changing. Case law suggested that defense counsel’s ex parte interview of a plaintiffs treating physician was not necessarily inappropriate. See, e.g., Melynchenko v Clay, 152 Mich App 193; 393 NW2d 589 (1986), lv den 426 Mich 875 (1986). This Court in Jordan noted that the issue was one of first impression since the enactment of the new Michigan Court Rules. Therefore, we reverse the trial court’s order as to the imposition of sanctions against defendants Shrestha and Bay Osteopathic Hospital.

Affirmed in part and reversed in part.

Michael J. Kelly, P.J., concurred.