Opinion
No. 102499.
May 10, 1996.
Leave to Appeal Denied May 10, 1996:
reported below: 209 Mich. App. 287.
I would grant leave to appeal.
In Domako v Rowe, 438 Mich. 347 (1991), this Court recognized that the lawyer for the defendant in a medical malpractice action has a right of ex parte communication with a treating physician. Nothing in Domako negatives the right of plaintiff's lawyer also to communicate ex parte with a treating physician. Plaintiff's lawyers have as much right to communicate ex parte with treating physicians as do defendant's lawyers.
The circuit judge exceeded his authority when he sought to preclude plaintiff's lawyers from making a truthful and accurate written statement to treating physicians even though the tendency of the communication would be to discourage the physicians from making themselves available for ex parte communication with defendant's lawyers.
Domako held, "[The absence of ex parte interviews] from the court rules does indicate that they are not mandated and that the physician cannot be forced to comply, but there is nothing in the court rules precluding an interview if the physician chooses to cooperate." 438 Mich. 362. I read this as allowing the physician to agree to an interview by defendant's counsel, to refuse an interview, or to put whatever conditions on the interview the physician believes appropriate, including presence of the patient, her attorney, or the doctor's own attorney.
I concur with the statement of Justice LEVIN.
I dissent from the order.
I would modify the order below and request the trial court to advise the public and relevant persons of its ruling at the plaintiff's expense. In my view, the rationale of Domako v Rowe, 438 Mich. 347 (1991), is that neither party can have a strategic advantage regarding the testimony of nonparty witnesses. Thus, parties may have ex parte contact with witnesses, and neither party can directly or indirectly advise a nonparty not to give evidence. The right is that of the witnesses who owe their evidence to the court, unless advised by their attorneys that there are lawful reasons to withhold it. Because plaintiff's sponsorship of the letter could constitute a strategic advantage to the defense that does not comport with the sense of Domako as I understand it, court sponsorship of the explanatory advice is the more appropriate remedy.