The Court of Appeals vacated three protective orders issued by Genesee Circuit Judge Geoffrey Neithercut that prevented the Michigan Department of Human Services (DHHS) from accessing McClaren-Flint Hospital medical records in Departmentof Healthand Human Services v Genessee CircuitJudge No. 334491. In this action for superintending control, the COA held that the circuit court lacked legal authority to issue the protective orders and the orders were an abuse of Judge Neithercut’s discretion.
In issuing its
order, the court stated “an order restricting the flow of information to a
state agency, or curtailing a state agency’s ability to fulfill its statutory
mandate, cannot rest on catchy phrases or naked assertions devoid of factual
support. And nothing more than that has been presented to this court.”
FACTS: This
matter arose out of the Flint Water Crises. According to the Flint Water
Advisory Task Force, the events that led to the water quality debacle created
lead exposure and heightened susceptibility to Legionnaires’s Disease. DHHS
tried to investigate the Legionnaire’s cases at the hospital, however, it was
stopped when Judge Neithercut issued three protective orders barring DHHS from
obtaining any information from McLaren relating to the hospital’s legionnaire’s
outbreak.
The investigation
began with a request by DHHS for a site visit to the hospital. That site visit
request was denied by the hospital because of the various lawsuits arising out
of the Flint Water crises that named both the hospital and the Department as
parties which, it believed, could be a conflict of interest. The Assistant
Attorney General Darrin Fowler and Genesee County Chief Assistant Prosecuting
Attorney Celeste Bell requested reconsideration of that decision, issuing an
investigative subpoena.
Michael P. Manley,
attorney for McClaren-Flint, went to the court to obtain a protective order.
Three protective orders were
issued:
1. Protective
order one: The Judge issued the first protective order declaring the
requested medical records confidential. The order was issued after meetings and
other communications, none of which took place on the record nor did the
proponents of the order file a petition or other document requesting the order.
Counsel for DHHS was not present at any of the meetings.
2. Protective
order two: After another off-record meeting, the court issued a second
order declaring the records confidential and also denying DHHS access to them.
3. Protective
order three followed shortly after order two. It prohibited DHHS from
viewing any of the hospital’s scientific records related to Legionnaire’s
disease.
Immediately, DHHS
filed a motion for superintending control in the COA on the grounds of
separation of powers. The hospital and counsel for the court argued that MCR
6.201, which governs criminal cases, gave the court authority to issue
protective orders in this matter because of the on-going criminal charges
against individuals involved in the Water Crises.
The Court of
Appeals rejected that argument since MCR 6.201applied to criminal, not civil
cases. The COA decided that the circuit court lacked any legal authority to
issue the protective orders because no motions requesting the orders were
filed, no testimony was taken and no record of proceedings was created. The
court also found that the “broad scope of the orders constituted an abuse of
Judge Neithercut’s discretion.”
The Court of
Appeals vacated each of the protective orders.
Labels: Flint, Flint Water Crises, Judge Neithercut, lead exposure, Legionnaire's Disease, medical records confidential, Michigan Department of Health and Human Services, Protective Orders, superintending control
