Gailitis v. Bassett

5 Mich. App. 382 (1966) 146 N.W.2d 708

GAILITIS
v.
BASSETT.

Docket No. 1,390.

Michigan Court of Appeals.

Decided December 8, 1966.

Shirley J. Burgoyne, for plaintiff.

Warner, Hart, Warner & Timmer (Robert H. Warner, of counsel), for defendant.

QUINN, P.J.

By leave granted December 13, 1965, plaintiff appeals from the trial court's denial of his motion for jury trial in this malpractice case and from the trial court's order authorizing defendant's counsel to interview one of plaintiff's attending physicians prior to trial.

Jinkner v. Widmer (1966), 3 Mich App 155, decided since leave to appeal was granted, is dispositive of the jury trial question. Jury demand was not made pursuant to GCR 1963, 508.2(1); the grant or denial of plaintiff's belated demand for jury trial is discretionary with the trial judge and the record demonstrates no abuse of discretion in the trial court's denial thereof.

With respect to the authorized interview of one of plaintiff's attending physicians, PA 1961, No 236, § 2157 (CLS 1961, § 600.2157, Stat Ann 1962 Rev § 27A.2157) provides for waiver of physician-patient privilege in malpractice actions in case plaintiff produces any physician as a witness in his behalf, who has treated him for injury, disease or condition with reference to which malpractice is alleged. GCR 1963, 302.1 permits deposing the physician involved but GCR 1963, 302.4 restricts use of the deposition to testimony "admissible under the rules of evidence." Admissibility of any evidence obtained by defendant from the physician is governed by the terms of the statute, supra, and we are bound to presume the trial court will follow the law, until the contrary is shown. Wagar v. Peak (1871), 22 Mich 368. We find no error in authorizing defendant's counsel to interview plaintiff's physician.

Affirmed, with costs to appellee.

N.J. KAUFMAN and McGREGOR, JJ., concurred.