Wis. Stat. § 804.10
Physical and mental examination of parties; inspection of medical documents
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804.10(1)(1) When the mental or physical condition, including the blood group or the ability to pursue a vocation, of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
804.10(2)(2) In any action brought to recover damages for personal injuries, the court shall also order the claimant, upon such terms as are just, to give to the other party or any physician named in the order, within a specified time, consent and the right to inspect any X-ray photograph taken in the course of the diagnosis or treatment of the claimant. The court shall also order the claimant to give consent and the right to inspect and copy any hospital, medical or other records and reports that are within the scope of discovery under s. 804.01 (2).
804.10(3)(a)(a) No evidence obtained by an adverse party by a court-ordered examination under sub. (1) or inspection under sub. (2) shall be admitted upon the trial by reference or otherwise unless true copies of all reports prepared pursuant to such examination or inspection and received by such adverse party have been delivered to the other party or attorney not later than 10 days after the reports are received by the adverse party. The party claiming damages shall deliver to the adverse party, in return for copies of reports based on court-ordered examination or inspection, a true copy of all reports of each person who has examined or treated the claimant with respect to the injuries for which damages are claimed.
804.10(3)(b)(b) This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with any other statute.
804.10(4)(4) Upon receipt of written authorization and consent signed by a person who has been the subject of medical care or treatment, or in case of the death of such person, signed by the personal representative or by the beneficiary of an insurance policy on the person’s life, the physician or other person having custody of any medical or hospital records or reports concerning such care or treatment, shall forthwith permit the person designated in such authorization to inspect and copy such records and reports. Any person having custody of such records and reports who unreasonably refuses to comply with such authorization shall be liable to the party seeking the records or reports for the reasonable and necessary costs of enforcing the party’s right to discover.
804.10 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 585, 680 (1975); 1975 c. 218; 1993 a. 424; 1995 a. 345.
804.10 AnnotationAlthough a personal injury claimant’s counsel attended a stipulated independent medical examination without court order or the defendant’s knowledge, the trial court did not abuse its discretion in refusing to limit cross-examination of the physician since the presence of counsel was not prejudicial and the court order could have been obtained under Whanger, 58 Wis. 2d 461 (1973), guidelines. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284, 254 N.W.2d 255 (1977).
804.10 AnnotationThe trial court may order a claimant to consent to the release and inspection of health care records and reports of treatment received prior to the claimed injury if the requester shows that the records may reasonably lead to discovery of admissible evidence and the claimant has an opportunity to assert physician-patient privilege. Ambrose v. General Casualty Co. of Wisconsin, 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990).
804.10 AnnotationMedical Records Discovery in Wisconsin Personal Injury Litigation. Pokrass. 1974 WLR 524.
804.10 AnnotationAvoiding E-Discovery Traps. Kehoe & Rummelhoff. Wis. Law. June 2011.
Notes of Decisions
Cited in 18
cases (2 in the last 5 years), 1984–2024 · leading case: Johnson v. Rogers Memorial Hospital, Inc.
Johnson v. Rogers Memorial Hospital, Inc. (2005)
“In Sawyer , because the parents brought a claim on behalf of the deceased daughter's estate, they put their daughter's medical condition at issue under Wis. Stat. §§ 804.10 and 905.04(4)(c). As holders of their deceased daughter's patient-therapist privilege, they waived the…”
Ambrose v. General Casualty Co. of Wisconsin (1990)
“In this appeal, we decide that the circuit court exceeded its discretion under the medical *309 records discovery statute, sec. 804.10(2), Stats. 1 The court ordered Patricia Ambrose, the plaintiff in this personal injury action, to sign a Medical Information Release which…”
Vincent Milewski v. Town of Dover (2017)
“§ 804.10 , 905.04(4)(c).54 ¶217 The challenged statutes are, in a sense, a corollary of the well-accepted legal principle that persons who fail to disclose material evidence that is in their possession and that is not readily available to an opposing party may not avail…”
Crawford v. Care Concepts, Inc. (2001)
“82 (2) (1987-88) and the medical records discovery rule, Wis. Stat. § 804.10 (2) (1987-88). The medical records discovery rule in § 804.”
Steinberg v. Jensen (1994)
“Unclear at this point is whether the improperly removed health care records were subject to the physician-patient privilege or whether they were discoverable pursuant to § 804.10(2), Stats. This is an issue that must be resolved by the trial court.”
Syring v. Tucker (1993)
“[1] Syring sought an order under sec. 804.10, Stats., for a physical exam: "When the mental or physical condition (including the blood group) of a party is in issue, the court.”
Franzen v. Children's Hospital of Wisconsin, Inc. (1992)
“12 Section 804.10(4), Stats., which governs the release of treatment records when the release is authorized by the treated individual, has no bearing on the records which are at issue here.”
State v. Maday (1993)
“In this case, the criminal defendant's interest in the right to require the victims to submit to psychological examinations is no less compelling than that underlying the right given to civil *358 litigants under sec. 804.10, Stats., which allows a court to order a party to…”
Johnson v. Rogers Memorial Hospital, Inc. (2000)
“§§ 804.10 and 905.04(4)(c) (1997-98). [4] Furthermore, as administrators of their daughter's estate, they had custody of her medical records.”
State Ex Rel. Klieger v. Alby (1985)
“13(2), Stats., providing for waiver of the physician-patient privilege in worker’s compensation proceedings.”
In RE MARRIAGE OF KETTNER v. Kettner (2002)
“§ 804.10(1) authorizes the trial court to order the parties to undergo psychological examinations.”
Office of Lawyer Regulation v. Barry LeSieur (2013)
“Attorney LeSieur contended that the referee lacked authority to issue such an IME order because (1) the rule of civil procedure authorizing IMEs, Wis. Stat. § 804.10 , *199 speaks of "the court in which the action is pending" as the entity that can order an IME, and (2) an IME…”
— Wis. Stat. § 804.10(1) — 3 cases
In RE MARRIAGE OF KETTNER v. Kettner (2002)
“§ 804.10(1) authorizes the trial court to order the parties to undergo psychological examinations.”
J.P.L. v. J.H. (1984)
— Wis. Stat. § 804.10(2) — 4 cases
Ambrose v. General Casualty Co. of Wisconsin (1990)
“In this appeal, we decide that the circuit court exceeded its discretion under the medical *309 records discovery statute, sec. 804.10(2), Stats. 1 The court ordered Patricia Ambrose, the plaintiff in this personal injury action, to sign a Medical Information Release which…”
Steinberg v. Jensen (1994)
“Unclear at this point is whether the improperly removed health care records were subject to the physician-patient privilege or whether they were discoverable pursuant to § 804.10(2), Stats. This is an issue that must be resolved by the trial court.”
Crawford v. Care Concepts, Inc. (2001)
“82 (2) (1987-88) and the medical records discovery rule, Wis. Stat. § 804.10 (2) (1987-88). The medical records discovery rule in § 804.”
State Ex Rel. Klieger v. Alby (1985)
“13(2), Stats., providing for waiver of the physician-patient privilege in worker’s compensation proceedings.”
— Wis. Stat. § 804.10(3)(b) — 1 case
Steinberg v. Jensen (1994)
“Unclear at this point is whether the improperly removed health care records were subject to the physician-patient privilege or whether they were discoverable pursuant to § 804.10(2), Stats. This is an issue that must be resolved by the trial court.”
— Wis. Stat. § 804.10(4) — 1 case
Franzen v. Children's Hospital of Wisconsin, Inc. (1992)
“12 Section 804.10(4), Stats., which governs the release of treatment records when the release is authorized by the treated individual, has no bearing on the records which are at issue here.”
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