Discovery of Medical Records: If There is “Nothing Out There,” Then Why Are We Fighting Over Our Medical Information Releases?

WDC Journal Edition: Summer/Fall 2008
By: Barbara M. Olivas

Introduction

Wisconsin Statute § 804.01(2)(a) allows a party to obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in a pending litigation whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. The statute reads as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. [Emphasis added.]

When a defendant is sued in a personal injury case, he or she is entitled to test the merits of the plaintiff’s case. The key way to do this is through discovery of the plaintiff’s pre and post accident healthcare records. It is through this process that a defendant is able to evaluate the cause and extent of the plaintiff’s injuries. In other words, it is through the review of the plaintiff’s pre and post accident healthcare records that a defendant can determine whether the plaintiff was hurt, whether the injuries are related to the accident, whether the plaintiff had previously experienced similar aches and pains, etc.

As a defense attorney, I have been confronted with what seems to be the never-ending task of compelling plaintiffs to provide me with a non-targeted unlimited medical information release which will enable me to obtain all of the plaintiffs’ pre and post accident medical and psychological records. During this crusade, I have been confronted time after time with the argument that Ambrose v. General Casualty Co., [1] stands for the proposition that a patient, by commencing a personal injury action, does not completely waive his or her physician-patient privilege. This proposition is incorrect, because, as this article will explain, in a personal injury action there is no partial waiver of the physician-patient privilege. Moreover, Ambrose is no longer good law in Wisconsin.

In A Personal Injury Action There Is No Partial Waiver Of The Physician-Patient Privilege.

By commencing a personal injury action, a plaintiff has made his or her physical condition an element of a claim. Because the claimant has made his or her physical condition an element of a claim, there is no physician/patient privilege which attaches to his or her health care records. This is clearly explained in Wis. Stat. 905.04(4)(c). This statute states as follows:

(c) Condition an element of claim or defense. There is no privilege under this section 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, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense. [Emphasis added.]

Even though the law on this subject is very clear; plaintiffs and some circuit court judges still allege that the commencement of a personal injury action does not completely waive the physician-patient privilege. This allegation is incorrect.

Long ago, the Wisconsin Supreme Court indicated that it is not permissible for a plaintiff/patient to waive his/her privilege against disclosure of certain health care records while simultaneously asserting the privilege in an attempt to prevent disclosure of other health care records. In Alexander v. Farmers Mutual Automobile Ins. Co.,[2] plaintiff filed a personal injury action arising out of a motor vehicle accident. A year and a half after the accident, plaintiff consulted with Dr. Henry Suckle. Dr. Suckle later drafted a report on plaintiff’s condition. Plaintiff refused to give the defendants access to Dr. Suckle’s report. Plaintiff claimed that she had not waived her physician-patient privilege with regard to Dr. Suckle’s healthcare records and reports. The supreme court disagreed. Citing to Cretney v. Woodmen Accident Co., the court stated as follows:[3]

Any privilege as to Dr. Suckle’s report was also waived when the records of Dr. Pearson were examined. This court has held that:

‘It would be most unjust and unfair to permit patients or their heirs to waive the privilege as to testimony of a physician who was favorable to their interest and claim the benefit of the privilege as to a physician similarly situated who might not be favorable to their interest. When consent is given for the disclosure by one physician the reason for the statute no longer exists, and the waiver is a waiver of the whole privilege and not a consent to the introduction of the testimony of designated witnesses. [Emphasis added.]

The notion that there can be a partial waiver of the physician-patient privilege is also refuted by the language of Wisconsin Statute § 905.11, which states as follows:

A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. [Emphasis added.]

Clearly, a plaintiff’s claim that he or she can partially waive the physician/patient privilege is without merit.

Ambrose Is Dead-Exclamation Point Not Question Mark.

In almost every case where I have filed a motion to compel my medical information release, I have received a “knee jerk” response brief from plaintiff’s counsel citing to Ambrose to argue that I have no legal basis upon which to demand plaintiff to execute a non-targeted unlimited medical information release. In their briefs, plaintiffs’ argue that, according to Ambrose, a circuit court may only order a plaintiff to consent to inspection and copying of health care records and reports of treatment of injuries and medical conditions incurred prior to the claimed injury, if two conditions are met. First, the requester makes a showing that the health care records and reports sought are reasonably calculated to lead to the discovery of admissible evidence. Second, the claimant is given an opportunity to assert his or her physician-patient privilege, subject to Wisconsin Statute § 905.04(4)(c).

Plaintiffs’ counsels’ arguments have been without any legal authority, as Ambrose is no longer the law. Following is a summary of the pertinent facts of that case and the procedural background explaining how the new Wisconsin Statute § 804.10(2) overruled Ambrose.

Ambrose involved an automobile accident which took place on March 1, 1986. Ambrose filed a personal injury action arising out of the motor vehicle accident. As part of discovery, Ambrose provided defendant with consent forms.[4] The authorizations were limited to records, reports and x-rays concerning the injuries Ambrose sustained in the March 1, 1986, accident and the treatment of those injuries.[5] During discovery, defendant learned that Ambrose had “pre-existing dormant conditions” resulting from an earlier accident that she had not worked since 1968; and that she had made a claim for social security benefits prior to the March 1, 1986, accident.[6] Defendant filed a motion to compel plaintiff to provide defendant written consent to obtain records concerning her physical and emotional health before and after the March 1, 1986 accident.[7] The circuit court granted defendant’s motion.[8] Plaintiff appealed and argued that the court exceeded its discretion under Wisconsin Statute § 804.10(2), when it required her to give carte blanche consent to defendant to inspect her healthcare records regardless of a physician-patient privilege as to any of the records or reports.[9]

While analyzing the history and interpretation of the medical records discovery rule, the court of appeals cited to Alexander v. Farmers to state that “in a contest between the medical records discovery rule and the claimant’s physician-patient privilege, the discovery rule wins.”[10] Following this statement, the Court of Appeals took an unexpected turn and concluded that “under sec. 804.10(2) a circuit court may order the claimant to consent to inspection and copying of health care records and reports of treatment of injuries and medical conditions incurred prior to the claimed injury, if two conditions are met. First, the requester makes a showing that the health care records and reports sought are reasonably calculated to lead to the discovery of admissible evidence. Second, the claimant is given an opportunity to assert his or her physician-patient privilege, subject to sec. 905.04(4)(c), Stats.”[11]

The court of appeals held that the circuit court’s order did not permit Ambrose to claim her physician-patient privilege as to any such records or report and, as a result, reversed the order.[12] A petition for review was filed, but was denied. The court of appeals’ decision was published in 1990.

The court of appeal’s logic in creating this two-prong test in Ambrose is flawed in many ways. First of all, as previously explained, in a personal injury action, there is no partial waiver of the physician-patient privilege. Further, Ambrose was putting a burden on the defendant that he or she could not possibly meet. According to Ambrose, in order to obtain pre-accident health care records, a defendant first had to show that the records he or she was seeking were reasonably calculated to lead to the discovery of admissible evidence. How could the defense attorney possibly make this showing without first reviewing the pre-accident healthcare records? Surely, there were rare situations where a post-accident healthcare record made a reference to a pre-existing condition. But what would happen in cases where there was no such record? How was the defendant in that situation supposed to meet the burden?

New Statute Supercedes Ambrose

On February 21, 1995, the Judicial Council of Wisconsin filed a petition seeking the amendment of the Rules of Civil Procedure regarding the discovery and inspection of healthcare provider records in personal injury actions.[13] This amendment was to codify the ruling in Ambrose. On October 11, 1995, there was a public hearing on the petition.[14] At this hearing, the Judicial Council asked the Supreme Court to amend the Rules of Civil Procedure pursuant to Wisconsin Statute § 751.12.[15] The amendment requested that Wisconsin Statute § 804.10(2) be recreated to read as follows[16]:

d) A party may also request that the claimant provide authorizations for the release of additional health-care provider records if the requesting party specifically identifies the health care-provider whose records are desired and bears the costs incurred in obtaining the requested additional records, including the costs incurred for certified copies that meet the requirements of s. 908.03(6m). Counsel for the claimant shall obtain the requested additional records and provide them to the requesting party or file them in the court along with a motion for a protective order alleging that all or a portion of the requested records will not lead to the discovery of evidence relevant to the injury or damages claimed in the action. The court shall conduct an in camera inspection before ruling on the motion for protective order. The records shall be sealed and preserved for appellate review if they are determined not appropriate for disclosure.

On October 18, 1995, Chief Justice Day wrote a letter to three state legislators in response to their request that the court take no action on the rule proposed for adoption by the Judicial Council.[17] The stated reason for their request was that the legislature was currently drafting legislation that would address the same issue.[18] The Chief Justice granted their request and withheld action until the legislature had acted.[19]

In 1995, the legislature adopted a new version of § 804.10(2) that broadened the right of defense counsel to inspect and copy the healthcare records of a claimant.[20] On June 11, 1996, the Judicial Council withdrew the petition it had filed.

The legislative intent to broaden the scope of discovery is apparent from a comparison of the old and new versions of the statute.[21] Prior to May 1996, § 804.10(2), Stats., read as follows:

Old Statute

In any action brought to recover damages for personal injuries, the court may 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 such claimant for the injuries for which damages are claimed. The court may also order such claimant to give consent and the right to inspect and copy any hospital, medical or other records and reports concerning the injuries claimed and the treatment thereof. [Emphasis added.]

The new version of the statute, published on June 3, 1996, reads as follows:


New Statute

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). [Emphasis added.]

The amendment to the new statute effectively superseded Ambrose and broadened the right of defense counsel to inspect and copy the healthcare records of a claimant. If Ambrose is no longer good law in Wisconsin, then the questions becomes, “why do plaintiffs still rely on Ambrose, to argue that defense counsel have no legal basis upon which to demand that the plaintiff execute unlimited medical information release? The answer to this question is quite simple, because Ambrose is still listed as an annotation in Wisconsin Statute § 804.10.[22] The statute’s annotation states as follows:

The trial court may order a claimant to consent to the release and inspection of healthcare 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 Cas. Co. 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990).

By incorrectly citing to a case that is no longer the law in Wisconsin, the drafters of the statute’s annotations have throughout the past few years mislead personal injury lawyers and circuit court judges to think that Ambrose is still good law in Wisconsin. However, as previously explained, this has not been the case since 1996.

If Plaintiff’s Pre-accident Healthcare Records Are Not Relevant, Then Why Does Wisconsin Civil Jury Instruction 1750.2 Instructs The Jury To Consider A Plaintiff’s Pre-Accident Mental And Psychological Condition When Determining The Plaintiff’s Damages?

Information about the plaintiff’s pre-accident mental and physical condition is highly relevant in a personal injury lawsuit. That is made abundantly clear by the Wisconsin Civil Jury Instruction on personal injuries. That instruction tells the jury that it is to award damages for physical pain and also for worry, distress, embarrassment and humiliation that the plaintiff has suffered. The jury is told to consider the extent to which the injuries have impaired the plaintiff’s ability to enjoy the pleasures and benefits of life. In awarding damages, the jury is specifically told to bear in mind the plaintiff’s prior mental and physical condition. Wis. JI-Civil 1750.2 states as follows:

Personal injuries include pain, suffering, and disability (disfigurement) which means any physical pain, worry, distress, embarrassment and humiliation which (plaintiff) has suffered in the past and is reasonably certain to suffer in the future. You should consider also to what extent (his) (her) injuries have impaired and will impair (his) (her) ability to enjoy the normal activities, pleasures, and benefits of life. Consider the nature of (plaintiff)’s injuries, the effect produced by (plaintiff)’s injuries in the past, and the effect the injuries are reasonably certain to produce in the future, bearing in mind (plaintiff)’s age, prior mental and physical condition, and the probable duration of (his) (her) life.[23] [emphasis added.]

If Wis. JI-Civil 1750.2 instructs the jury to consider the plaintiff’s prior mental and physical condition, then, clearly, evidence regarding the plaintiff’s prior mental and physical condition is relevant and admissible. The only way such evidence can be obtained is through unlimited discovery of plaintiff’s healthcare records.

Conclusion

Ambrose is no longer good law in Wisconsin. As this article has explained, the Supreme Court had the opportunity to codify the ruling in Ambrose, however, it declined to do so and instead, deferred its judgment to the legislature. The legislature also declined to codify the requirements in Ambrose, and instead, broadened the right of defense counsel to obtain plaintiff’s healthcare records when it amended Wis. Stat. § 804.10(2).


[1] Ambrose v. General Casualty Co., 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990).

[2] Alexander v. Farmers Mutual Automobile Ins. Co., 25 Wis. 2d 623, 131 N.W.2d 373 (1964).

[3] Id. at 628 (quoting Cretney v. Woodmen Accident Co., 196 Wis. 29, 36, 219 N.W. 448 (1928)).

[4] Ambrose, 156 Wis. 2d at 309.

[5] Id. at 309-310.

[6] Id. at 310.

[7] Id.

[8] Id.

[9] Id. at 311.

[10] Id. at 315.

[11] Id.

[12] Id. at 316.

[13] See Wisconsin Supreme Court Order 95-08 “Health-care provider records. In the Matter of the Amendment of Rules of Civil Procedure: Wis. Stat. § 804.10(2)-Discovery of Health Care Provider Records.”

[14] See Id.

[15] See Id.

[16] See Id.

[17] See Letter from Chief Justice Roland B. Day to Senator Huelsman, Representative Green, and Representative Gard regarding File Number 95-08 (October 18 1995).

[18] See. Id.

[19] See. Id.

[20] See 1995 Wis. Act 345, § 1.

[21] Id.

[22] See Wis. Stat. § 804.10.

[23] Wis. JI-Civil 1750.2