Dierickx v. Cottage Hosp Corp

In Dierickx v. Cottage Hosp Corp, 152 Mich. App. 162; 393 N.W.2d 564 (1986), the plaintiffs claimed in a medical malpractice action that their first-born daughter suffered central nervous system damage as a result of the defendants' negligence during childbirth. 152 Mich. App. at 164-165. The defendants sought discovery of the medical records of the plaintiffs' two younger children because the youngest suffered from the same developmental problems as the eldest child. The defendants intended to show that the first-born daughter's problems were caused by a genetic disorder rather than negligence. Id., 165. The trial court denied this discovery on the basis of the physician-patient privilege. Id., 166. The Court affirmed, rejecting the defendants' argument that the plaintiffs waived the privilege by placing the younger girls' physical condition at issue: The right to assert the physician-patient privilege is personal to the patient. . . . Although Katie and Kimberly are related to plaintiffs, they are not parties to this action. The existence of a genetic defect may be an issue in this litigation, but Katie and Kimberly (or their representatives) have not placed the health of Katie and Kimberly in controversy. Thus, they have not waived the privilege. Id., 167. The Court rejected the defendants argument that the privilege was "not absolute where it is asserted solely to gain strategic advantage and to conceal evidence likely to establish the truth." Id., 168.