PEOPLE OF MI V TONIA CHILDS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 21, 2000
9:10 a.m.
Plaintiff-Appellant,
v
No. 224698
Berrien Circuit Court
LC No. 99-402456-FY
TONIA CHILDS,
Defendant-Appellee.
Updated Copy
January 19, 2001
Before: Doctoroff, P.J., and Holbrook, Jr., and Smolenski, JJ.
SMOLENSKI, J.
This case arises from a tragic house fire that occurred on February 4, 1999, in which three
of defendant's young children died. The prosecutor charged defendant with three counts of
involuntary manslaughter, MCL 750.321; MSA 28.553, alleging that she caused the fire while
intoxicated. Before the district court scheduled a preliminary examination, the prosecutor moved
to admit evidence regarding the blood alcohol test administered to defendant on the morning of
the fire, arguing that the evidence was not protected by the statutory physician-patient privilege,
MCL 600.2157; MSA 27A.2157. The district court denied the prosecutor's motion, holding that
the statutory privilege prevented admission of the test results into evidence. The circuit court
denied the prosecutor's application for leave to appeal from that decision. The prosecutor appeals
to this Court by leave granted. We affirm.
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I
Because the lower courts have not yet conducted a preliminary examination, and because
no witnesses have yet testified in this matter, the facts of this case have not been fully
developed.1 However, for the limited purpose of deciding whether the statutory physician-patient
privilege bars admission of defendant's blood test results into evidence, the parties stipulated the
facts set forth in the briefs that they filed with the district court. For purposes of this appeal, we
will consider only those stipulated facts.2
On February 3, 1999, defendant left her home at approximately 4:30 p.m. She returned at
approximately 1:30 a.m. on February 4, 1999. Defendant spoke briefly with a neighbor, Glory
Woodson, before entering the home. Defendant's three youngest children and her boyfriend, Carl
Lockhart, were sleeping in the home when defendant returned. Defendant's fourteen-year-old
son, Nathaniel, awoke and spoke briefly to defendant about food that she might prepare for
herself in the kitchen. Half an hour later, at approximately 2:00 a.m., Woodson called emergency
personnel to report a fire in defendant's home. When police and firefighters arrived, only
moments later, the home was fully ablaze.
Before rescue personnel arrived on the scene, Nathaniel and Lockhart escaped from the
home. All three of defendant's younger children died as a result of the fire, either at the scene or
en route to the hospital. Firefighters rescued defendant and rushed her to the hospital for medical
treatment. Hospital personnel drew a sample of defendant's blood and performed a blood alcohol
test, which revealed a blood serum alcohol level of 0.26. The parties do not dispute that hospital
personnel conducted the blood test for purposes of medical treatment. The parties also do not
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dispute that defendant was unconscious at the time and that she did not speak to medical
personnel before the test was performed.
The prosecutor's theory of the case is that defendant caused the fatal fire by lighting the
kitchen stove's gas burner under an empty pot and leaving the pot unattended. According to the
prosecutor, the empty pot ignited and the flames spread, first to the kitchen cabinets and then to
the rest of the home. The prosecutor charged defendant with involuntary manslaughter, alleging
that she acted in a grossly negligent manner, causing the death of her three children while
intoxicated. In order to prove gross negligence, the prosecutor sought the admission of evidence
of defendant's blood alcohol level.
Defendant asserted that the statutory physician-patient
privilege barred admission of the blood test results.
II
The statutory physician-patient privilege, MCL 600.2157; MSA 27A.2157, provides, in
pertinent part:
Except as otherwise provided by law, a person duly authorized to practice
medicine or surgery shall not disclose any information that the person has
acquired in attending a patient in a professional character, if the information was
necessary to enable the person to prescribe for the patient as a physician, or to do
any act for the patient as a surgeon.
Because the physician-patient privilege was not recognized at common law, its scope is
controlled by the statutory language. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 33;
594 NW2d 455 (1999); Herald Co, Inc v Ann Arbor Public Schools, 224 Mich App 266, 276;
568 NW2d 411 (1997).
We review questions of statutory construction de novo. In doing so, our
purpose is to discern and give effect to the Legislature's intent. We begin by
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examining the plain language of the statute; where that language is unambiguous,
we presume that the Legislature intended the meaning clearly expressed—no
further judicial construction is required or permitted, and the statute must be
enforced as written. We must give the words of a statute their plain and ordinary
meaning, and only where the statutory language is ambiguous may we look
outside the statute to ascertain the Legislature's intent. [People v Morey, 461
Mich 325, 329-330; 603 NW2d 250 (1999) (citations omitted).]
In addition to these general rules of statutory construction, we note that our Supreme
Court recently reaffirmed the rule that statutory privileges are narrowly defined, while their
exceptions are broadly construed. People v Warren, 462 Mich 415, 428; 615 NW2d 691 (2000);
In re Brock, 442 Mich 101, 119; 499 NW2d 752 (1993).
III
The prosecutor first argues that the statutory physician-patient privilege should not bar the
admission of defendant's blood test into evidence because the privilege should not apply to
unconscious persons. Although the prosecutor submits that no reported decision in this state has
squarely addressed the issue, he argues that public policy concerns support such a ruling. In
contrast, defendant argues that our Supreme Court has already recognized the application of the
physician-patient privilege to unconscious persons, citing People v Keskimaki, 446 Mich 240;
521 NW2d 241 (1994). In that case, a police officer encountered the defendant slumped over the
steering wheel of his vehicle, apparently unconscious and breathing erratically. Unable to rouse
the defendant, the officer arranged for his transportation to a local hospital. Hospital personnel
drew a sample of the defendant's blood and tested the sample for its alcohol content, apparently
while the defendant was still unconscious. The prosecutor attempted to introduce the results of
that blood test at the defendant's trial on charges of operating a motor vehicle while under the
influence of intoxicating liquor, MCL 257.625; MSA 9.2325.
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Although the Keskimaki case certainly involved an unconscious defendant, our review of
that decision reveals that the Court neither considered nor decided whether the physician-patient
privilege validly applied to an unconscious patient. Rather, the "sole issue before [the] Court on
appeal [was] whether [the] defendant was involved in an 'accident' within the meaning of the
accident exception to the physician-patient privilege." Keskimaki, supra at 245-246.3 Therefore,
we agree with the prosecutor that the appellate courts of this state have not directly addressed the
application of the statutory privilege to an unconscious patient.
The prosecutor argues that this Court should find the statutory privilege inapplicable to
unconscious persons because application of the privilege to such persons would not further the
broad social purpose supporting the privilege. Because defendant was hospitalized and treated
while unconscious, the prosecutor argues that defendant did not intentionally establish a
physician-patient relationship, did not engage in verbal communication with the physician, and
did not share confidences with the physician.4 According to the prosecutor, the purpose of the
statutory privilege is protection of confidential communications between physician and patient.
Furthermore, the prosecutor argues that the Legislature enacted the statute in order to encourage
persons to seek medical aid when necessary, and to encourage truthful discussion of a person's
medical condition with the physician. The prosecutor urges this Court to accept the proposition
that "[a]pplication [of the privilege] to unconscious persons who have not initiated a relationship
with medical personnel bears little relevance to [the statute's purpose of] encouraging conscious
persons to seek medical treatment."
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In Swickard v Wayne Co Medical Examiner, 438 Mich 536, 560; 475 NW2d 304 (1991),
our Supreme Court summarized the various ways in which the appellate courts of this state have
explained the purpose of the statutory physician-patient privilege:
In Schechet v Kesten, 372 Mich 346, 351, n 3; 126 NW2d 718 (1964), the
Court stated that "'[t]he statute is one passed for the sole purpose of enabling
persons to secure medical aid without betrayal of confidence.'" In Gaertner v
Michigan, 385 Mich 49, 53; 187 NW2d 429 (1971), this Court stated that the
purpose of the act "is to protect the confidential nature of the physician-patient
relationship." And in Drouillard v Metropolitan Life Ins Co, 107 Mich App 608,
617; 310 NW2d 15 (1981), the Court of Appeals wrote that the purpose of the
privilege "is to encourage free discussion between doctors and their patients . . . ."
Nevertheless, we do not begin our statutory analysis by examining the general "purpose"
of a statute and then determining whether public policy concerns support application of the
statute in particular factual circumstances. We must begin by examining the actual language of
the statute. If that language is unambiguous, we must apply the statute as written. Morey, supra
at 330.
Considering the statute's plain language, it is clear that the physician-patient privilege
applies to "any information that the person has acquired in attending a patient in a professional
character, if the information was necessary to enable the person to prescribe for the patient as a
physician, or to do any act for the patient as a surgeon." MCL 600.2157; MSA 27A.2157. The
prosecutor does not contest that the blood test constitutes information "acquired" in attending
defendant's needs as a patient. Further, the prosecutor does not contest that the blood test was
necessary to enable the physician to prescribe a treatment for defendant's injuries. Instead, the
prosecutor argues that defendant should not be permitted to claim the privilege because she was
unconscious when treated. The prosecutor's argument implies a belief that the statute protects
only a patient's verbal communications of confidential information to a physician. We do not
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believe that the plain language of the statute permits such an interpretation. The statute protects
"any information" that is "acquired" by a physician in the course of treating a patient, as long as
that information is necessary to treat the patient. We therefore reject the prosecutor's argument
that the privilege does not apply to unconscious persons.
IV
The prosecutor next argues that the statutory physician-patient privilege should not apply
in this case because the prosecutor's need for specific evidence in a criminal proceeding should
defeat the privilege.
As the prosecutor argues, "[w]here specific evidence is needed in a
prosecution, general claims of privilege must yield." The prosecutor relies on two cases to
support this proposition: United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039
(1974), and People v Johnson, 111 Mich App 383; 314 NW2d 631 (1981).
In Nixon, the United States Supreme Court considered a claim of executive privilege
advanced by the President of the United States in an attempt to quash a third-party subpoena
duces tecum. The Nixon Court rejected application of the claimed privilege on the facts of that
case, given the prosecutor's specific need for evidence relevant to a pending criminal trial. In
reaching that decision, the Nixon Court relied heavily on the generalized nature of the President's
claim of executive privilege:
A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need
for production of relevant evidence in a criminal proceeding is specific and central
to the fair adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The President's broad interest in confidentiality of communications
will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
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We conclude that when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the general interest in
confidentiality, it cannot prevail over the fundamental demands of due process of
law in the fair administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial. [Nixon, supra at 712-713 (emphasis added).]
In Nixon, the claimed privilege was not rooted in specific statutory or constitutional
language.
In contrast, the present case involves a statutory privilege created by our state
legislature. Because the present case does not require evaluation of a "general interest in
confidentiality" or a "generalized assertion" of privilege, but requires application of specific
statutory language, we do not believe that the Nixon analysis applies here.
The prosecutor, however, points to Johnson, supra, in which this Court applied the Nixon
holding to a claim of physician-patient privilege.
In Johnson, the prosecutor charged the
defendant with knowingly or intentionally acquiring or obtaining possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or subterfuge. MCL 333.7407(1)(c);
MSA 14.15(7407)(1)(c). The prosecutor's theory of the case was that the defendant obtained a
prescription for the controlled substance from his doctor, but altered the number of tablets on that
prescription before attempting to obtain the controlled substance at the pharmacy. The defendant
moved to exclude the physician's testimony regarding the number of tablets originally prescribed,
arguing that the information was protected by the physician-patient privilege. The trial court
denied the motion to suppress on the ground that the defendant had waived the privilege by
failing to object to the physician's testimony at the preliminary examination. Johnson, supra at
386.
On appeal, this Court affirmed the trial court's decision, relying on three separate grounds
to support its holding that the privilege did not bar the physician's testimony. First, this Court
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held that the trial court properly denied the defendant's motion to suppress the physician's
testimony because the defendant failed to object to the introduction of that testimony at the
preliminary examination. Id. at 386-388. Second, this Court held that the privilege did not apply
because the proffered testimony related to a communication made by the defendant "'in the
furtherance of an unlawful or criminal purpose.'" Id. at 390-391, quoting 3 Jones, Evidence (6th
ed), § 21.29, p 823. Finally, this Court held that, "where the evidence sought is 'demonstrably
relevant' to the [criminal] case at issue, a generalized claim of privilege must yield to the specific
need for evidence." Johnson, supra at 389, citing People v Emanuel, 98 Mich App 163, 187; 295
NW2d 875 (1980). To support this final ground for rejecting the claim of privilege, the Johnson
Court referenced the Nixon holding in a footnote, which stated:
See also United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d
1039 (1974), where the Supreme Court, in a discussion of executive privilege,
balanced the competing interests of the parties and held that a generalized
assertion of privilege must yield to the demonstrated specific need for evidence in
a pending criminal trial. [Johnson, supra at 389, n 4.]
The prosecutor argues that the Johnson holding requires abrogation of the statutory
physician-patient privilege in all cases where a prosecutor advances a claim of need for a specific
piece of evidence in order to pursue a criminal prosecution. We disagree.
First, we believe that Johnson is distinguishable from the present case. In Johnson, the
physician's testimony regarding the number of tablets initially prescribed was absolutely essential
to the prosecution. As this Court stated, "[t]he prescription could only be verified by the
physician who issued it.
Without the doctor's testimony, convictions for forgeries of
prescriptions would be well-nigh impossible." Id. at 389. In the present case, the prosecutor
argues that the blood test results are similarly essential to the case against defendant. We
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disagree. Blood test results are not the sole means of proving intoxication, and manslaughter
convictions are not precluded by the exclusion of such evidence. Presumably, the prosecutor
could introduce the testimony of various witnesses who observed defendant consume alcohol on
the night in question, if in fact that occurred. Because the need for this specific evidence is not as
compelling as the need for specific evidence found in the Johnson case, we believe that holding
is distinguishable.
Second, we note that the statutory physician-patient privilege does not distinguish
between criminal and civil proceedings, and appellate courts of this state have applied the statute
in both contexts. Keskimaki, supra at 246; Swickard, supra at 559; Baker v Oakwood Hosp
Corp, 239 Mich App 461, 468; 608 NW2d 823 (2000). In fact, the Legislature has already
provided specific and narrowly tailored exceptions to the statutory privilege, applicable in
criminal cases. MCL 257.625a(6)(e); MSA 9.2325(1)(6)(e) provides:
If, after an accident, the driver of a vehicle involved in the accident is
transported to a medical facility and a sample of the driver's blood is withdrawn at
that time for medical treatment, the results of a chemical analysis of that sample
are admissible in any civil or criminal proceeding to show the amount of alcohol
or presence of a controlled substance or both in the person's blood at the time
alleged, regardless of whether the person had been offered or had refused a
chemical test. The medical facility or person performing the chemical analysis
shall disclose the results of the analysis to a prosecuting attorney who requests the
results for use in a criminal prosecution as provided in this subdivision. A
medical facility or person disclosing information in compliance with this
subsection is not civilly or criminally liable for making the disclosure.
Our Supreme Court has recognized that, by enacting this statute, "[t]he Legislature
decided to abrogate the physician-patient privilege" in specific factual circumstances. People v
Perlos, 436 Mich 305, 326; 462 NW2d 310 (1990). The Court cautioned that the Legislature did
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not create "a sweeping abandonment of the physician-patient privilege," but created a "carefully
tailored" and "narrowly defined" exception to the privilege. Id. at 328.
Similarly, this Court has held that the Legislature impliedly created an exception to the
physician-patient privilege by enacting MCL 750.411; MSA 28.643, which requires medical
personnel to report wounds inflicted by deadly weapons. People v Traylor, 145 Mich App 148,
151-152; 377 NW2d 371 (1985). That statute provides in part:
It shall be the duty of every person, firm or corporation conducting any
hospital or pharmacy in this state, or the person managing or in charge of such
hospital or pharmacy, or in charge of any ward or part of such hospital, to which
any person or persons suffering from any wound or other injury inflicted by means
of a knife, gun, pistol or other deadly weapon, or by other means of violence shall
come or be brought, to report the same immediately, both by telephone and in
writing, to the chief of police or other head of the police force of the village or city
in which such hospital or pharmacy is located, or to the sheriff of the county, if
such hospital or pharmacy is located outside the incorporated limits of a village or
city. Such report shall state the name and residence of such person, if known, his
whereabouts and the character and extent of such injuries. It shall also be the duty
of every physician, or surgeon, who has under his charge or care any person
suffering from any wound or injury, inflicted in the manner above mentioned, to
make a like report to the appropriate officers hereinabove named.
These two statutory exceptions to the physician-patient privilege demonstrate that the
Legislature intended the privilege to apply generally in criminal cases, subject only to a few
"carefully tailored" and "narrowly defined" exceptions. Perlos, supra at 328. For this Court to
create a broad exception to the statutory privilege, applicable in all criminal cases, would clearly
be inconsistent with the Legislature's intent as expressed in its statutes. Therefore, we reject the
prosecutor's invitation to create such an exception. We leave it to the Legislature's discretion to
create additional exceptions to the statutory privilege.
Affirmed.
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/s/ Michael R. Smolenski
/s/ Martin M. Doctoroff
/s/ Donald E. Holbrook, Jr.
1
Defendant briefly argued before the circuit court and argues on appeal that the evidence in this
case is insufficient to support a finding of probable cause that she committed a crime. The lower
courts did not conduct a preliminary examination and did not review this issue. Therefore, the
issue is not properly before us, and we express no opinion regarding the sufficiency of the
evidence.
2
On appeal, defendant attached several exhibits to her brief, including police and fire reports
containing statements provided by various witnesses. Although defendant's appeal brief refers to
additional facts set forth in those exhibits, we note that they were not considered by the lower
courts. Because these documents are not part of the record before this Court, we do not consider
them in deciding this appeal.
3
The "accident exception" to which the Keskimaki Court referred was formerly contained in
MCL 257.625a(9); MSA 9.2325(1)(9), and is currently contained in MCL 257.625a(6)(e); MSA
9.2325(1)(6)(e), discussed later in this opinion.
4
The prosecutor argued before the lower courts that the statutory privilege applies only to the
testimony of a physician or surgeon and does not extend to other medical personnel acting under
the direction of a physician or surgeon. Because the prosecutor has not renewed this argument on
appeal, we do not address it.
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