Barbara Sampson v. Shorepointe Nursing Center ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BARBARA SAMPSON, UNPUBLISHED
July 16, 2020
Plaintiff-Appellee,
v No. 346927
Macomb Circuit Court
SHOREPOINTE NURSING CENTER, also LC No. 2018-003328-NH
known as WBH NCC #1, LLC,
Defendant,
and
GREAT LAKES PHYSIATRISTS, PC, and
ANTHONY FEMMININEO, M.D.,
Defendants-Appellants.
Before: GLEICHER, P.J., and GADOLA and LETICA, JJ.
PER CURIAM.
In this medical malpractice action, defendants sought a qualified protective order (QPO) in
connection with their desire to conduct ex parte interviews of plaintiff’s treating physicians.
Defendants, Great Lakes Physiatrists, PC and Anthony Femminineo, MD (defendants), appeal by
leave granted the order of the trial court, challenging the notice condition the trial court included
in the QPO it ultimately entered. We vacate the notice condition in the QPO, and remand for
further proceedings.
I. FACTS
In 2016, plaintiff underwent treatment with defendants after foot surgery. Plaintiff
thereafter initiated this lawsuit against defendants and Shorepointe Nursing Center (Shorepointe),1
1
Defendant Shorepointe Nursing Center, also known as WBH NCC #1, LLC, is not a party to this
appeal.
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asserting that defendant failed to provide proper and necessary medical treatment of an epidural
abscess.
Shorepointe, joined by defendants, moved to dismiss the complaint or, in the alternative,
for a QPO compliant with the Health Insurance Portability and Accountability Act (HIPAA), 42
USC 1320d et seq., to permit defendants to conduct ex parte interviews with plaintiff’s healthcare
providers. Plaintiff requested that the trial court deny the motion for a QPO, or, in the alternative,
to impose a condition in the QPO requiring that defense counsel provide notice to plaintiff after
an ex parte interview stating the date of the interview and the identity of the healthcare provider
with whom defense counsel met. The trial court entered a QPO, and included the notice condition.
II. DISCUSSION
Defendants contend that the trial court abused its discretion by including a notice condition
in the QPO. We agree.
We review a trial court’s decision on a motion for a protective order for an abuse of
discretion. Holman v Rasak, 486 Mich. 429, 448 n 10; 785 NW2d 98 (2010). A trial court abuses
its discretion when its decision “falls outside the range of reasonable and principled outcomes.”
Id. A trial court also abuses its discretion when it errs as a matter of law. See Gay v Select Specialty
Hosp, 295 Mich. App. 284, 294; 813 NW2d 354 (2012). We review de novo the interpretation of
the court rules. Muci v State Farm Mut Auto Ins Co, 478 Mich. 178, 187; 732 NW2d 88 (2007).
In this case, the parties agree that the trial court was authorized to issue a QPO allowing
defendants to conduct ex parte interviews with plaintiff’s healthcare providers. Indeed, the general
ability of defense counsel to interview a plaintiff’s treating physician(s) in a medical malpractice
case has long been recognized. See Domako v Rowe, 438 Mich. 347, 360-361; 475 NW2d 30
(1991). In Holman, our Supreme Court imposed the requirement of a QPO to protect patient
privacy in this context, and recognized the trial court’s ability to place conditions on the conduct
of ex parte interviews, as justice requires. Our Supreme Court in Holman stated:
Ex parte interviews are permitted under Michigan law, and nothing in HIPAA
specifically precludes them. Because it is possible for defense counsel to insure
that any disclosure of protected health information by the covered entity complies
with [HIPAA] by making “reasonable efforts” to obtain a qualified protective order,
HIPAA does not preempt Michigan law concerning ex parte interviews. [Id. at
442.]
Although ex parte interviews are permissible, a trial court has discretion under MCR
2.302(C) to issue a qualified protective order, and to impose conditions on ex parte interviews.
Holman, 486 Mich. at 447-448. MCR 2.302(C) provides, in pertinent part:
On motion by a party or by the person from whom discovery is sought, and
on reasonable notice and for good cause shown, the court in which the action is
pending may issue any order that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense . . . .
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Additional conditions imposed by the trial court under MCR 2.302(C) must be “justified
in their own right.” Szpak v Inyang, 290 Mich. App. 711, 715; 803 NW2d 904 (2010). In Szpak, a
case very close to the one at hand, the medical defendants sought a QPO that complied with the
requirements of HIPAA; the QPO “prohibit[ed] defendants from using or disclosing any health
information acquired in the covered interviews . . . .” Id. The trial court, however, imposed
additional conditions in the QPO that had no bearing on the disclosure of health information,
requiring that the plaintiffs’ counsel be given notice of the ex parte interviews and allowing
plaintiffs’ counsel to attend the interviews.
On appeal to this Court, the plaintiffs in Szpak asserted the need for the conditions, arguing
that the treating physicians could be subject to intimidation “when confronted with an Order
permitting him or her to meet with Defense counsel,” and further arguing that “topics of
conversation that could arise in an ex parte conversation are subjects such as malpractice in
general, the witness’s insurance company, how premiums could rise against all doctors in the event
of a verdict, mutual acquaintances, just to name a few.” Id. at 715. This Court determined that
the plaintiffs’ arguments advocating the need for the conditions did not establish that justice
required the conditions. The plaintiffs did not identify any facts that supported their fear of
intimidation, and this Court noted that the plaintiffs’ fears of intimidation “would be theoretically
present in any medical malpractice case.” Id. at 715. This Court further held that the plaintiffs did
not establish that the interviews sought were not relevant nor that there was any specific danger of
“ ‘annoyance, embarrassment, oppression, or undue burden or expense.’ ” Id. at 716, quoting
MCR 2.302(C). The Court vacated the conditions within the QPO that were not supported by “a
reasonable concern for intimidation, harassment, and the like.” Szpak, 290 Mich. App. at 716.
In this case, plaintiff does not dispute that informal discovery, including ex parte witness
interviews, is permitted under our liberal rules of discovery. Indeed, this issue came before the
trial court only because it involves the use of plaintiff’s protected health information, which
requires entry of a QPO to ensure compliance with HIPPA. Defendants sought the QPO in this
case to permit them to conduct informal discovery, in the form of ex parte witness interviews, as
they would be permitted to do in any other type of litigation. But plaintiff’s counsel in turn sought
to hijack the request for a QPO to obtain something counsel would not otherwise be entitled to,
other than through normal discovery mechanisms—the identity of plaintiff’s healthcare providers
that defendants’ counsel informally interviewed, and the dates of the interviews. Plaintiff contends
that the notice condition is necessary to avoid imposing upon her the burden and expense of finding
out about the ex parte witness interviews through traditional discovery mechanisms.
Although “a trial court retains its discretion under MCR 2.302(C) to issue protective orders
and to impose conditions on ex parte interviews,” Holman, 486 Mich. at 447-448, the imposition
of conditions requires a showing under the court rule that justice requires the condition to “protect
a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .”
Szpak, 290 Mich. App. at 714, quoting MCR 2.302(C). Where a plaintiff seeks the conditions “only
in response to appellants’ motion and [they] have no bearing on the disclosure of health
information,” the court rule requires “that the additional conditions be justified in their own right.”
Id. at 715. Here, there has been no showing that justice requires the conditions sought, and the
trial court abused its discretion in imposing them. Indeed, following our decision in Szpak, this
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Court has in previous cases peremptorily ordered the removal of conditions requiring the same
post-meeting notice imposed in this case.2
In Szpak, this Court determined that the plaintiffs’ generalized concerns about witness
intimidation “would be theoretically present in any medical malpractice case” and that “[p]laintiffs
have not identified any facts in this case supporting a specific fear that defense counsel would
‘intimidate’ the treating physicians during a voluntary ex parte interview.” Id. at 715. Here,
plaintiff’s rationale for imposition of the conditions is that her counsel might find it burdensome
to undertake ordinary mechanisms of discovery to determine when and with whom ex parte
interviews took place, particularly given the likelihood that defendants will assert the work product
privilege in denying the requested information. It is essentially an argument for convenience. But
we cannot agree that an ordinary discovery request, and the assertion of a privilege in response to
the request, is an undue burden on plaintiffs in this, or in any other, case.
The sending of interrogatories and the assertion of various privileges in response thereto
are ordinary incidents of litigation. The requirement in this case, dictated by federal privacy laws,
that defendants obtain a QPO does not suddenly render the typical discovery process so
unendurable as to be an affront to justice in this case, and the fact defendants must seek a QPO in
this context does not entitle plaintiffs to something they would not otherwise receive in the
ordinary course of a case not involving protected health information. As this Court observed in
Szpak, plaintiff’s concerns about burdensome discovery “would be theoretically present in any . . .
case.” Id. at 715.3 Accommodating plaintiff’s wishes for the sake of convenience does not mean
that “justice requires” the accommodation.
2
See, e.g., Estate of William Durst v Farid Fata MD, unpublished order of the Court of Appeals,
entered December 8, 2014 (Docket No. 323039) (“In lieu of granting leave to appeal, pursuant to
MCR 7.205(E)(2), the Court orders that the Oakland Circuit Court’s decision to include paragraph
(e) in its July 14, 2014 qualified protective order is REVERSED and the language of paragraph (e)
requiring disclosure to opposing counsel of a party’s contact with the decedent’s treating
physicians is STRICKEN from the qualified protective order. Szpak v Inyang, 290 Mich. App. 711;
803 NW2d 904 (2010).”); and see also Balluff v Fatt, unpublished order of the Court of Appeals,
entered October 25, 2018 (Docket No. 344566) (“In lieu of granting the application for leave to
appeal, the Court orders, pursuant to MCR 7.205(E)(2), that the June 18, 2018 order of the Wayne
Circuit Court is VACATED IN PART. Plaintiff simply has not shown why justice requires the
14-day post-meeting notice condition set by the circuit court. Szpak v Inyang, 290 Mich. App. 711;
803 NW2d 904 (2010). Accordingly, that condition is STRICKEN from the order. Plaintiff’s
desire for notice may be accomplished through discovery. The case is REMANDED to the circuit
court for further proceedings consistent with this order.”)
3
Having resolved this matter in defendants’ favor, it is unnecessary to reach defendants’ additional
argument that the identities of the healthcare providers are protected by the work-product doctrine.
We note that the issue is not identified in defendants’ brief in the statement of questions involved
on appeal. MCR 7.212(C)(5); Henderson v Dep’t of Treasury, 307 Mich. App. 1, 30; 858 NW2d
733 (2014) (issues must be raised in the statement of questions involved to be properly presented
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The portion of the QPO pertaining to the notice condition is vacated. We remand to the
trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Anica Letica
for this Court’s review). Moreover, because that issue was not determined by the trial court, the
issue is not preserved for review by this Court. See Elahham v Al-Jabban, 319 Mich. App. 112,
119; 899 NW2d 768 (2017) (to be preserved for review by this Court, an issue generally must be
raised before, addressed by, and decided by the trial court). This Court’s usual practice is to decline
to decide issues for the first time on appeal, and instead to leave such issues to be analyzed and
ruled upon by the trial court in the first instance. See Jawad A. Shah, MD, PC v State Farm Mut
Auto Ins Co, 324 Mich. App. 182, 194, 210; 920 NW2d 148 (2018). Where, as here, determination
of the issue is not necessary to the resolution of this case, we decline to reach it.
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