Wisconsin Statutes

Wis. Stat. § 146.38 (2026)

Health care services review; confidentiality of information

✓ current as of July 2026

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146.38146.38 Health care services review; confidentiality of information.

146.38(1)(1) In this section:

146.38(1)(a)(a) “Evaluator” means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.

146.38(1)(b)(b) “Health care provider” means any of the following:

146.38(1)(b)1.1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).

146.38(1)(b)2.2. A facility, association, or business entity, as specified in s. 146.81 (1) (i) to (q) and including a residential care apartment complex, as defined in s. 50.01 (6d).

146.38(1)(b)3.3. A person working under the supervision of or in collaboration with a person specified in subd. 1.

146.38(1)(b)4.4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in subd. 2.

146.38(1)(bm)(bm) “Incident or occurrence report” means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.

146.38(1)(c)(c) “Medical director” has the meaning specified in s. 256.01 (11).

146.38(1m)(1m) No person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in sub. (3) or (3m).

146.38(2)(2) All persons, organizations, or evaluators, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3) or (3m). No such record may be used in any civil or criminal action against the health care provider or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

146.38(2m)(2m) An incident or occurrence report may not be used in any civil or criminal action against a health care provider.

146.38(3)(3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld except as permitted under s. 146.82, in the following circumstances:

146.38(3)(a)(a) To the health care provider whose services are being reviewed or evaluated, upon the request of such provider;

146.38(3)(b)(b) To any person with the consent of the health care provider whose services are being reviewed or evaluated;

146.38(3)(c)(c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers, and determining the reasonable charges for such services;

146.38(3)(dm)(dm) With regard to an action under s. 895.441, to a court of record after issuance of a subpoena; and

146.38(3)(f)(f) To the appropriate examining or licensing board or agency, when the organization or evaluator conducting the review or evaluation determines that such action is advisable.

146.38(3m)(3m)

146.38(3m)(a)(a) Information acquired in connection with the review and evaluation of health care services may be disclosed, and records of such review and evaluation may be released, in statistical form with the consent of the person authorizing or with the authority to authorize the review or evaluation. Information disclosed or records released under this subsection shall not reveal the identity of any patient except as permitted under s. 146.82.

146.38(3m)(b)(b) Information acquired in connection with the review or evaluation of health care services may be disclosed, and the records of such a review or evaluation released, to any of the following persons, with the consent of the person authorizing or with the authority to authorize the review or evaluation:

146.38(3m)(b)1.1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

146.38(3m)(b)2.2. The parent, subsidiary, or affiliate organization of a health care provider, as defined in sub. (1) (b) 2.

146.38(3m)(b)3.3. The parent, subsidiary, or affiliate organization of the employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

146.38(3t)(3t) A record described under sub. (2) or an incident or occurrence report disclosed either under sub. (3) or (3m) or in violation of this section remains confidential and may not be used in any civil or criminal action against the health care provider or any other health care provider.

146.38(4)(4) Any person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release.

146.38(5)(5) This section does not apply to s. 256.25.

146.38(6)(6) Health care provider specific information acquired by an administrative agency in order to help improve the quality of health care, to avoid the improper utilization of services of health care providers, or to determine the reasonable charges for health care services is exempt from inspection, copying, or receipt under s. 19.35 (1).

146.38 HistoryHistory: 1975 c. 187; 1979 c. 89; 1983 a. 27; 1989 a. 102; 1991 a. 217; 1999 a. 56; 2005 a. 155, 315; 2007 a. 130; 2011 a. 2, 32; 2013 a. 165 s. 114; 2013 a. 166.

146.38 AnnotationThe conclusions of a hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. State ex rel. Good Samaritan Medical Center-Deaconess Hospital Campus v. Maroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1985).

146.38 AnnotationOutlining the methodology for determining privileged records under sub. (2). Franzen v. Children’s Hospital of Wisconsin, Inc., 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992).

146.38 AnnotationDiscussing the methodology for determining privileged communications under sub. (1m). Mallon v. Campbell, 178 Wis. 2d 278, 504 N.W.2d 357 (Ct. App. 1993).

146.38 AnnotationBecause this section does not provide for the loss of confidentiality due to disclosure to third parties, no waiver exists under this section. Ollman v. Wisconsin Health Care Liability Insurance Plan, 178 Wis. 2d 648, 505 N.W.2d 399 (Ct. App. 1993).

146.38 AnnotationStatistical data regarding a hospital’s rates of infection for postoperative patients qualifies as a report in statistical form under former sub. (3) (d), 1999 stats., and is subject to discovery. A court need not conduct an in camera inspection to determine if material sought may be released when there is a request for information that on its face is clearly protected by this section. Braverman v. Columbia Hospital, Inc., 2001 WI App 106, 244 Wis. 2d 98, 629 N.W.2d 66, 00-0901.

146.38 AnnotationThe Department of Health and Family Services is a person subject to restrictions under sub. (1m) regarding the release of information. Braverman v. Columbia Hospital, Inc., 2001 WI App 106, 244 Wis. 2d 98, 629 N.W.2d 66, 00-0901.

146.38 AnnotationSite reviews by associations to which local hospitals voluntarily submit for review in order to improve the quality of health care services constitutes peer review, the discovery of which is barred by this section. Hofflander v. St. Catherine’s Hospital, Inc., 2003 WI 77, 262 Wis. 2d 539, 664 N.W.2d 545, 00-2467.

146.38 AnnotationThe party asserting the health care services review privilege under sub. (1m) bears the burden of establishing two conditions: 1) the investigation must be part of a program organized and operated to improve the quality of health care at the hospital; and 2) the person conducting the investigation must be acting on behalf of, or as part of a group with relatively constant membership, officers, a purpose, and a set of regulations. The privilege did not apply to an investigation conducted by an individual doctor, and not the hospital’s peer review committee, that was initiated by the hospital to report a problem to the supervisor of the residency program in which the defendant resident was enrolled, and not to improve the quality of health care at the hospital. Phelps v. Physicians Insurance Co. of Wisconsin, 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580.

146.38 AnnotationA health care provider cannot rely on this section, conferring a “peer review privilege,” to withhold documents that are relevant to a federal investigation. Because participants in peer review already expect that peer-review materials may be disclosed in certain circumstances, there appears to be nothing to be gained by recognizing the privilege in the limited circumstances presented by this case. United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066 (2015).

Notes of Decisions

Cited in 20 cases, 1977–2016 · leading case: Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77 (Wis. 2003).

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Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77 (Wis. 2003). · cites it 64× “Catherine's Behavioral Services Unit were properly excluded from discovery based on the privilege granted under Wis. Stat. § 146.38 (1999-2000). [4] I. FACTUAL BACKGROUND ¶ 10.”

Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 2005 WI 85 (Wis. 2005). · cites it 52× “" Additionally, the petitioners argue that the health care services review privilege found in Wis. Stat. § 146.38 (1997-98) does not apply to this case.”

Braverman v. Columbia Hosp., Inc., 2001 WI App 106 (Wis. Ct. App. 2001). · cites it 56× “The trial court issued the protective order pursuant to Wis. Stat. § 146.38 (2) (1999-2000) 2 which bars the release of the record of a review or evaluation conducted under a health care provider's quality assurance program.”

Rechsteiner v. Hazelden, 2008 WI 97 (Wis. 2008). · cites it 31× “His motion to compel addressed the fact that counsel for the Spooner defendants instructed his clients not to answer certain questions under a claim of Wis. Stat. § 146.38 privilege. ¶ 20. On April 7, 2006, Judge Gableman held a hearing regarding Dr.”

Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 2004 WI App 91 (Wis. Ct. App. 2004). · cites it 41× “Confidentiality of Health-Care-Services-Review Information under Wis. Stat. § 146.38 . 8 A. ¶ 26. By letter dated November 30, 1998, Dennis Worthington, M.”

Franzen v. Child.'s Hosp. of Wisconsin, Inc., 485 N.W.2d 603 (Wis. Ct. App. 1992). · cites it 20× “er 4, 1990, order of the trial court that Montgomery is not required to identify either the "persons who participated in meetings or proceedings" or "any records created as a result of any meetings, proceedings or hearings held with regard to Montgomery being asked to leave…”

Mallon v. Campbell, 504 N.W.2d 357 (Wis. Ct. App. 1993). · cites it 19× “(lm), of sec. 146.38, Stats., and that we were addressing whether records, rather than testimony, were privileged under the statute.”

State Ex Rel. Good Samaritan Med. Ctr.-Deaconess Hosp. Campus v. Moroney, 365 N.W.2d 887 (Wis. Ct. App. 1985). · cites it 8× “The appellants contend that the information sought by these interrogatories is privileged under sec. 146.38, Stats. That section provides in part: (1) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for…”

Davison v. St. Paul Fire & Marine Ins., 248 N.W.2d 433 (Wis. 1977). · cites it 5× “If the instant controversy had arisen after the effective date of sec. 146.38, Stats., at least some of the *200 elements of information sought by the respondents might have been privileged and beyond discovery under the provisions of sec.”

United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066 (E.D. Wis. 2015). · cites it 10× “” See Wis. Stat. § 146.38 (lm). The United States contends that Aurora cannot rely on a Wisconsin Statute to withhold documents that are relevant to a federal investigation.”

Ollman v. Wisconsin Health Care Liab. Ins. Plan, 505 N.W.2d 399 (Wis. Ct. App. 1993). · cites it 17× “12 Thus, because Oilman's motion to compel, on its face, requests a particular document identified only as one containing the conclusions of the Board of Inquiry, the trial court did not err in denying that motion without an in camera inspection of the document itself.”

Mallow v. Angove, 434 N.W.2d 839 (Wis. Ct. App. 1988). · cites it 8× “The issue on appeal involves the construction of sec. 146.38, Stats., and the legislature’s amendment to sec.”

Show all 20 citing cases →

— Wis. Stat. § 146.38(1) — 1 case

Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 2004 WI App 91 (Wis. Ct. App. 2004). “Confidentiality of Health-Care-Services-Review Information under Wis. Stat. § 146.38 . 8 A. ¶ 26. By letter dated November 30, 1998, Dennis Worthington, M.”

— Wis. Stat. § 146.38(1)(b) — 1 case

Phelps v. Physicians Ins. Co. of Wisconsin, Inc., 2005 WI 85 (Wis. 2005). “" Additionally, the petitioners argue that the health care services review privilege found in Wis. Stat. § 146.38 (1997-98) does not apply to this case.”

— Wis. Stat. § 146.38(1m) — 3 cases

Ollman v. Health Care Liab. Ins., 505 N.W.2d 399 (Wis. Ct. App. 1993).

— Wis. Stat. § 146.38(2) — 9 cases

Franzen v. Child.'s Hosp. of Wisconsin, Inc., 485 N.W.2d 603 (Wis. Ct. App. 1992). “er 4, 1990, order of the trial court that Montgomery is not required to identify either the "persons who participated in meetings or proceedings" or "any records created as a result of any meetings, proceedings or hearings held with regard to Montgomery being asked to leave…”

Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77 (Wis. 2003). “Catherine's Behavioral Services Unit were properly excluded from discovery based on the privilege granted under Wis. Stat. § 146.38 (1999-2000). [4] I. FACTUAL BACKGROUND ¶ 10.”

Mallon v. Campbell, 504 N.W.2d 357 (Wis. Ct. App. 1993). “(lm), of sec. 146.38, Stats., and that we were addressing whether records, rather than testimony, were privileged under the statute.”

Ollman v. Wisconsin Health Care Liab. Ins. Plan, 505 N.W.2d 399 (Wis. Ct. App. 1993). “12 Thus, because Oilman's motion to compel, on its face, requests a particular document identified only as one containing the conclusions of the Board of Inquiry, the trial court did not err in denying that motion without an in camera inspection of the document itself.”

— Wis. Stat. § 146.38(3) — 2 cases

Davison v. St. Paul Fire & Marine Ins., 248 N.W.2d 433 (Wis. 1977). “If the instant controversy had arisen after the effective date of sec. 146.38, Stats., at least some of the *200 elements of information sought by the respondents might have been privileged and beyond discovery under the provisions of sec.”

Mallow v. Angove, 434 N.W.2d 839 (Wis. Ct. App. 1988). “The issue on appeal involves the construction of sec. 146.38, Stats., and the legislature’s amendment to sec.”

— Wis. Stat. § 146.38(3)(a) — 1 case

Rechsteiner v. Hazelden, 2008 WI 97 (Wis. 2008). “His motion to compel addressed the fact that counsel for the Spooner defendants instructed his clients not to answer certain questions under a claim of Wis. Stat. § 146.38 privilege. ¶ 20. On April 7, 2006, Judge Gableman held a hearing regarding Dr.”

— Wis. Stat. § 146.38(3)(dm) — 1 case

— Wis. Stat. § 146.38(4) — 1 case

United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066 (E.D. Wis. 2015). “” See Wis. Stat. § 146.38 (lm). The United States contends that Aurora cannot rely on a Wisconsin Statute to withhold documents that are relevant to a federal investigation.”

— Wis. Stat. § 146.38(l)(a) — 1 case

Mallon v. Campbell, 504 N.W.2d 357 (Wis. Ct. App. 1993). “(lm), of sec. 146.38, Stats., and that we were addressing whether records, rather than testimony, were privileged under the statute.”

— Wis. Stat. § 146.38(l)(b) — 2 cases

— Wis. Stat. § 146.38(lm) — 5 cases

Mallon v. Campbell, 504 N.W.2d 357 (Wis. Ct. App. 1993). “(lm), of sec. 146.38, Stats., and that we were addressing whether records, rather than testimony, were privileged under the statute.”

Braverman v. Columbia Hosp., Inc., 2001 WI App 106 (Wis. Ct. App. 2001). “The trial court issued the protective order pursuant to Wis. Stat. § 146.38 (2) (1999-2000) 2 which bars the release of the record of a review or evaluation conducted under a health care provider's quality assurance program.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.