Michigan Court of Appeals; Docket No. 61192; Unpublished
Judges Beasley, Brennan, and Wahls; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Evidentiary Issues
CASE SUMMARY:
This is a significant per curiam Opinion dealing with the right of a first-party no-fault insurer to release medical records pertaining to one of its insureds who was involved in third party tort litigation. In this case, plaintiff Sterling was insured with defendant DAIIE for no-fault first-party benefits. Plaintiff was also involved in a third-party negligence action against a tort-feasor who was also insured by DAIIE and represented by defendant law firm, Berry, Moorman, et al. During the handling of plaintiff’s PIP claim, she was asked to submit to an insurance medical examination pursuant to §3151 of the No-Fault Act which she agreed to do. After DAIIE received the medical report from this exam, it sent the report to the defendant law firm to be reviewed for purposes of the third-party tort case.
Plaintiff filed the lawsuit against DAIIE and the defendant law firm. She alleged that disclosure of the report was a violation of the physician-patient privilege (MCLA 600.2157) and also constituted the tort of "invasion of privacy."
The Court rejected plaintiffs claim that disclosure of the report violated the physician-patient privilege because it was the insurance company who disclosed the information not the doctor.
However, the Court held that plaintiff did allege a viable cause of action for invasion of privacy against defendant DAIIE. The Court characterized the cause of action in the following way, "an invasion of privacy claim can be grounded on the public disclosure of embarrassing private facts about the plaintiff. In Beaumont v Brown, 401 Mich 80 (1977) the Court indicated that a cause of action is stated where there is alleged 'unnecessary publicity' toward 'a particular public, whose knowledge of the private facts would be embarrassing to the plaintiff." The Court then went on to say that whether the insurer's voluntary disclosure of a medical report obtained pursuant to §3151 of the No-Fault Act without the express consent of the plaintiff to representatives of an opposing party in a lawsuit commenced by the insured amounts to a violation of the insured's right to privacy is a question of fact for the jury to determine. Therefore, plaintiff is entitled to a trial on that claim. However, no such claim could properly be stated against the law firm in this particular case because there was no evidence that the law firm disclosed the medical report to anyone. Presumably if the law firm had, then it too would have been potentially liable under an invasion of privacy theory.
Finally, plaintiff did not state a cause of action for the tort of "intrusion upon seclusion" because there was no evidence that the medical report was obtained "through some method objectionable to the reasonable man."
[Author's Comment: This decision is very significant with regard to discovery in third-party tort cases. This is particularly so where the third-party insurer is also the plaintiffs first-party insurer. This opinion clearly suggests that it is improper for an insurer who "wears both hats" to be passing medical information obtained in the first-party case to the third-party file. This would suggest that insurers in this position should, at a minimum, have two adjusters handling the respective claims. Presumably it would also be improper for a first-party insurer to voluntarily provide information to a separate and distinct third-party insurer in connection with a plaintiffs medical condition without the express consent of plaintiff. Finally, the opinion even raises questions about the property of pro forma subpoenas issued by third-party defendants seeking reproduction of a plaintiffs first-party PIP file. This opinion clearly indicates that a plaintiff has a protected interest in the contents of the first-party file. It is not at all clear that a PIP carrier who discloses the contents of that file pursuant to a "records copying subpoena" is immunized from subsequent legal action by the plaintiff. It would seem that a motion for production under GCR 310 would be a minimum requirement]
