The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5406

December 15, 1978

CHILD PROTECTION ACT:

Physician-patient privilege

PHYSICIANS AND SURGEONS:

Medical information of children where Department of Social Services investigates suspected child abuse or neglect

RECORDS AND RECORDATION:

Medical information where Department of Social Services investigates child abuse or neglect

DEPARTMENT OF SOCIAL SERVICES:

Medical information where Department of Social Services investigates child abuse or neglect

CONSTITUTION OF MICHIGAN:

Article 4, Sec. 25 (Reenact--publish clause)

A hospital is required, absent a parental release, to allow access to medical information on children to Department of Social Services staff conducting a protective services investigation under the Child Protection Act since allowing such access does not violate the physician-patient privilege. The provision in the Child Protection Act abrogating the physician-patient privilege does not violate Const 1963, art 4, Sec. 25.

John T. Dempsey

Director

Michigan Department of Social Services

300 South Capitol Avenue

Lansing, Michigan 48926

You have sought my opinion as to whether, absent a parental release, hospitals are required to share information in their medical records of children with the protective services staff of the Michigan Department of Social Services in the course of an investigation of suspected child abuse or neglect.

Medical records in a hospital's possession are ordinarily subject to the physician-patient privilege established by section 2157 of the Revised Judicature Act, MCLA 600.2157; MSA 27A.2157, which, except in limited circumstances, prohibits the release of certain medical information without the patient's consent. This section states:

'No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition: Provided further, That after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created.'

It should be noted, however, that the physician-patient privilege is of statutory origin, Eberle v Savon Food Stores, Inc, 30 Mich App 496; 186 NW2d 837 (1971), and the legislature may abrogate or further amend the privilege at any time.

The protective services investigation is required to be conducted under the Child Protection Act, 1976 PA 238, MCLA 722.621 et seq; MSA 25.248(1) et seq and section 11 of that act provides:

'Any legally recognized privileged communication except that between attorney and client is abrogated and shall neither constitute grounds for excusing a report otherwise required to be made nor for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to this act.'

It is well-established under the rules of statutory construction that no words in a statute are to be treated as mere surplusage, Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971) and that 'in seeking meaning, words and clauses will not be divorced from those which proceed and those which follow,' Sanchick v State Board of Optometry, 342 Mich 555; 70 NW2d 757 (1955). Thus, it must be presumed that the legislature intended that the physician-patient privilege be abrogated, pursuant to the Child Protection Act, supra, only where a report was required under such act or where the communications subject to such privilege were offered as evidence in a civil child protective proceeding.

Consideration must also be given, however, to Const 1963, art 4, Sec. 25 which provides:

'No law shall be revised, altered or amended by reference to its title only. The section or sections of the act to be amended shall be reenacted and published at length.'

In Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972), the Court held that where the legislature enacts a new law and intends to amend a prior statute so that its operation is narrower or broader than previously stated, this intent cannot be viewed as an amendment by implication and is therefore in violation of Const 1963, art 4, Sec. 25. However, the court has held that when the legislature has enacted a complete statute which is not confusing and which cuts across and affects an earlier statute, both statutes will be given effect without violating Const 1963, art 4, Sec. 25. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 476; 208 NW2d 469 (1973). See also, Midland Township v State Boundary Commission, 401 Mich 641, 656-663; 259 NW2d 326 (1977).

It may be concluded that the Child Protection Act is a complete statute and Sec. 11 thereof, supra, dealing with the abrogation of the physician-patient privilege with respect to reports of suspected abuse or neglect, does not confuse. Therefore, it is not in violation of the Constitution.

Inasmuch as physicians are required by section 3(1) of the Child Protection Act, supra, to report suspected child abuse or neglect, and since section 11 of such act is constitutional, the contents of their reports are not subject to the physician-patient privilege. The requirements for such reports are set forth in 1975 PA 238, supra, Sec. 3(2) which provides:

'The written report shall contain the name of the child and a description of the abuse or neglect. If possible, the report shall contain the names and addresses of the child's parents, the child's guardian, or the persons with whom the child resides, and the child's age. The report shall contain other information available to the reporting person which might establish the cause of abuse or neglect and the manner in which it occurred.' MCLA 722.623(2); MSA 25.248(3)(2) 1975 PA 238, supra, Sec. 6(2) further provides:

'When a child suspected of being an abused or neglected child is seen by a physician, the physician shall make the necessary examinations, which may include physical examination, x-rays, photographs, laboratory studies, and other pertinent studies. The physician's written report to the department shall contain summaries of the evaluation.' MCLA 722.626(2); MSA 25.248(6)(2)

It is my opinion, therefore, that inasmuch as there is no violation of the physician-patient privilege when a hospital provides medical information on children to the Department of Social Services staff conducting a protective services investigation under the Child Protection Act, 1975 PA 238, supra, a hospital is required to provide such medical information as is encompassed by Secs. 3(2) and 6(2) of the act, supra, even absent a parental release.

Frank J. Kelley

Attorney General