physician-patient privilege in Wisconsin

1995The court of appeals noted that because the plaintiffs medical condition was an element of his medical malpractice claim against the defendant, under the exception stated in sec. 905.04(4)(c), Stats., the physician-patient privilege did not protect "communications relevant to or within the scope of discovery ...." Id. at 473 (quoting sec. 905.04(4)(c)).

1995Klieger v. Alby, 125 Wis. 2d 468 , 373 N.W.2d 57 (Ct. App. 1985), erroneously-concluded that the physician-patient privilege is not waived upon commencement of a lawsuit.

2005For that reason, in State v. Johnson, this court did not allow a litigant who had waived the physician-patient privilege in a prior proceeding to reassert the privilege in a subsequent proceeding. 133 Wis. 2d 207, 225-26 , 395 N.W.2d 176 (1986). ¶ 131.

2005For that reason, in State v. Johnson, this court did not allow a litigant who had waived the physician-patient privilege in a prior proceeding to reassert the privilege in a subsequent proceeding. 133 Wis. 2d 207, 225-26 , 395 N.W.2d 176 (1986). ¶ 131.

2016When this court granted the motion for reconsideration in State v. Johnson, we wrote separately to explain that witness preclusion was not the only remedy intended by the Shiffra court. 2014 WI 16, ¶19 , 353 Wis. 2d 119 , 846 N.W.2d 1 (Ann Walsh Bradley, J., concurring in part, dissenting in part, joined by Abrahamson, C.J.) ("The court in Shiffra expressly contemplated that a variety of sanctions may be appropriate depending on the circumstances."). ¶119 In Shiffra, the court determined that it was not a misuse of the circuit court's discretion to suppress the victim's testimony as a sanction

2016When this court granted the motion for reconsideration in State v. Johnson, we wrote separately to explain that witness preclusion was not the only remedy intended by the Shiffra court. 2014 WI 16, ¶19 , 353 Wis. 2d 119 , 846 N.W.2d 1 (Ann Walsh Bradley, J., concurring in part, dissenting in part, joined by Abrahamson, C.J.) ("The court in Shiffra expressly contemplated that a variety of sanctions may be appropriate depending on the circumstances."). ¶119 In Shiffra, the court determined that it was not a misuse of the circuit court's discretion to suppress the victim's testimony as a sanction

2001On appeal, Ambrose argued that the circuit court exceeded its discretion under the medical records discovery rule when it ordered her to "give carte blanche consent to [the defendants] to inspect and copy all of her health care records and reports, regardless of their confidential nature and regardless of the existence of a physician-patient privilege as to any of the records or reports." Id. at 311 . ¶ 38.

1994While recognizing that under some circumstances the physician-patient privilege must fall, nonetheless, it falls only after careful consideration by the trial court. 12 Finally, § 905.04(4)(c), Stats., relating to eviden-tiary matters, recognizes that "[t]here is no privilege under this section [physician-patient privilege] as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense." Conseque

1990Co. v. Kozlowski, 226 Wis. 641, 644 , 276 N.W. 300, 302 (1938) (the physician-patient privilege will not be extended beyond its letter).

1990Co. v. Kozlowski, 226 Wis. 641, 644 , 276 N.W. 300, 302 (1938) (the physician-patient privilege will not be extended beyond its letter).

2007The legislature has also recognized that the confidentiality of mental health treatment records is fundamentally grounded on the physician-patient privilege, as reflected in the language of Wis. Stat. § 51.30 (4)(a), when it excluded from confidentiality matters "otherwise provided" by Wis. Stat. § 905.04 . 15 See Billy Jo W. v. Metro, 182 Wis. 2d 616, 643 , 514 N.W.2d 707 (1994) ("When he pleaded not guilty by reason of mental disease or defect, he waived the physician-patient confidentiality that ordinarily pro *564 tects mental health records") (relying on State v. Taylor, 142 Wis. 2d 36, 4

2007The legislature has also recognized that the confidentiality of mental health treatment records is fundamentally grounded on the physician-patient privilege, as reflected in the language of Wis. Stat. § 51.30 (4)(a), when it excluded from confidentiality matters "otherwise provided" by Wis. Stat. § 905.04 . 15 See Billy Jo W. v. Metro, 182 Wis. 2d 616, 643 , 514 N.W.2d 707 (1994) ("When he pleaded not guilty by reason of mental disease or defect, he waived the physician-patient confidentiality that ordinarily pro *564 tects mental health records") (relying on State v. Taylor, 142 Wis. 2d 36, 4

2007The legislature has also recognized that the confidentiality of mental health treatment records is fundamentally grounded on the physician-patient privilege, as reflected in the language of Wis. Stat. § 51.30 (4)(a), when it excluded from confidentiality matters "otherwise provided" by Wis. Stat. § 905.04 . 15 See Billy Jo W. v. Metro, 182 Wis. 2d 616, 643 , 514 N.W.2d 707 (1994) ("When he pleaded not guilty by reason of mental disease or defect, he waived the physician-patient confidentiality that ordinarily pro *564 tects mental health records") (relying on State v. Taylor, 142 Wis. 2d 36, 4

2007The legislature has also recognized that the confidentiality of mental health treatment records is fundamentally grounded on the physician-patient privilege, as reflected in the language of Wis. Stat. § 51.30 (4)(a), when it excluded from confidentiality matters "otherwise provided" by Wis. Stat. § 905.04 . 15 See Billy Jo W. v. Metro, 182 Wis. 2d 616, 643 , 514 N.W.2d 707 (1994) ("When he pleaded not guilty by reason of mental disease or defect, he waived the physician-patient confidentiality that ordinarily pro *564 tects mental health records") (relying on State v. Taylor, 142 Wis. 2d 36, 4

2005The therapist-patient privilege does not fall within that category. [14] In criminal cases, the defendant has the right to examine the alleged victim's medical records if (1) the defendant makes a prima facie showing that "the records contain relevant information necessary to a determination of guilt or innocence . . . not merely cumulative to other evidence available to the defendant;" and (2) after an in camera inspection of the records, the court concludes that "the records will likely contain evidence that is independently probative to the defense." State v. Green, 2002 WI 68, ¶ 34 , 253 W

2005The therapist-patient privilege does not fall within that category. [14] In criminal cases, the defendant has the right to examine the alleged victim's medical records if (1) the defendant makes a prima facie showing that "the records contain relevant information necessary to a determination of guilt or innocence . . . not merely cumulative to other evidence available to the defendant;" and (2) after an in camera inspection of the records, the court concludes that "the records will likely contain evidence that is independently probative to the defense." State v. Green, 2002 WI 68, ¶ 34 , 253 W

1996The United States Supreme Court addressed this issue in Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

1996But Wis. Stat. § 905.04 (4) contains no exception compa *610 rable to the exception in the statute at issue in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), allowing disclosure to a court of competent jurisdiction pursuant to court order. 11 Courts in other states are divided concerning whether the physician-patient privilege is absolute or, alternatively, must yield when a defendant's right to present a complete and effective defense is jeopardized.

1995Commitment Records Daniel and Timothy next assert that any record in the possession of the County involving hearings on the extension of a sex offender's commitment to the department of health and social services is not privileged and the physician-patient privilege does not apply, citing State v. Cramer, 91 Wis. 2d 553, 565 , 283 N.W.2d 625, 631 (Ct. App. 1979), aff'd, 98 Wis. 2d 416 , 296 N.W.2d 921 (1980), cert. denied, 450 U.S. 924 (1981).

1995Commitment Records Daniel and Timothy next assert that any record in the possession of the County involving hearings on the extension of a sex offender's commitment to the department of health and social services is not privileged and the physician-patient privilege does not apply, citing State v. Cramer, 91 Wis. 2d 553, 565 , 283 N.W.2d 625, 631 (Ct. App. 1979), aff'd, 98 Wis. 2d 416 , 296 N.W.2d 921 (1980), cert. denied, 450 U.S. 924 (1981).

1995The next case to address the permissibility of ex parte contacts between defense counsel and a plaintiffs treating physician was Zintek v. Perchik, 163 Wis. 2d 439 , 471 N.W.2d 522 (Ct. App. 1991).

1995The next case to address the permissibility of ex parte contacts between defense counsel and a plaintiffs treating physician was Zintek v. Perchik, 163 Wis. 2d 439 , 471 N.W.2d 522 (Ct. App. 1991).

1995Commitment Records Daniel and Timothy next assert that any record in the possession of the County involving hearings on the extension of a sex offender's commitment to the department of health and social services is not privileged and the physician-patient privilege does not apply, citing State v. Cramer, 91 Wis. 2d 553, 565 , 283 N.W.2d 625, 631 (Ct. App. 1979), aff'd, 98 Wis. 2d 416 , 296 N.W.2d 921 (1980), cert. denied, 450 U.S. 924 (1981).

1995Id. at 251, 424 N.W.2d at 170-71 .

1995See 64 Wis. Op. Att'y Gen. 83, (1975) (citing Wilkins v. Durand, 47 Wis. 2d 527, 540 , 177 N.W.2d 892 (1970); Boyle v. Northwestern Mutual Relief Ass'n., 95 Wis. 312, 320 , 70 N.W. 351 (1897)); see also Rudnick v. Superior Court of Kern County, 523 P.2d 643 , 650 n.10 (1974) ("It is perhaps pertinent to remember the obvious, namely that the physician-patient privilege is a rule of evidence concerning the admissibility of evidence in court and is not a substantive rule regulating the conduct of physicians.").

1995See 64 Wis. Op. Att'y Gen. 83, (1975) (citing Wilkins v. Durand, 47 Wis. 2d 527, 540 , 177 N.W.2d 892 (1970); Boyle v. Northwestern Mutual Relief Ass'n., 95 Wis. 312, 320 , 70 N.W. 351 (1897)); see also Rudnick v. Superior Court of Kern County, 523 P.2d 643 , 650 n.10 (1974) ("It is perhaps pertinent to remember the obvious, namely that the physician-patient privilege is a rule of evidence concerning the admissibility of evidence in court and is not a substantive rule regulating the conduct of physicians.").

1992NOTES [1] The statute was held to be constitutional in an earlier appeal in this case, State v. Migliorino, 150 Wis. 2d 513 , 442 N.W.2d 36 (1989), cert. denied, 493 U.S. 1004 . [2] The term "medical facility" is defined by the statute as "a hospital under s. 50.33(2) or a clinic or office that is used by a physician licensed under ch. 448 and that is subject to rules promulgated by the medical examining board for the clinic or office that are in effect on November 20, 1985." Section 943.145(1), Stats. [3] The trial court instructed the jury in conformity with Wis J I—Criminal 1439.

1992NOTES [1] The statute was held to be constitutional in an earlier appeal in this case, State v. Migliorino, 150 Wis. 2d 513 , 442 N.W.2d 36 (1989), cert. denied, 493 U.S. 1004 . [2] The term "medical facility" is defined by the statute as "a hospital under s. 50.33(2) or a clinic or office that is used by a physician licensed under ch. 448 and that is subject to rules promulgated by the medical examining board for the clinic or office that are in effect on November 20, 1985." Section 943.145(1), Stats. [3] The trial court instructed the jury in conformity with Wis J I—Criminal 1439.

1992NOTES [1] The statute was held to be constitutional in an earlier appeal in this case, State v. Migliorino, 150 Wis. 2d 513 , 442 N.W.2d 36 (1989), cert. denied, 493 U.S. 1004 . [2] The term "medical facility" is defined by the statute as "a hospital under s. 50.33(2) or a clinic or office that is used by a physician licensed under ch. 448 and that is subject to rules promulgated by the medical examining board for the clinic or office that are in effect on November 20, 1985." Section 943.145(1), Stats. [3] The trial court instructed the jury in conformity with Wis J I—Criminal 1439.

1990Id. at 628 , 131 N.W.2d at 376 .

1990Id. at 628 , 131 N.W.2d at 376 .

1987The physician-patient privilege does not prohibit a physician from disclosing confidential communications outside of evidentiary court proceedings. 64 Op. Att'y Gen. at 85-86 .