Member Alert: Beware of Legislative Initiatives

WDC Journal Edition: Spring 2010
By: Catherine M. Rottier, President, Wisconsin Defense Counsel

The plaintiffs' bar and their friends in the legislature have been very active recently. They have introduced bills to create new causes of action, expand statutes of limitations and impose fee-shifting provisions that run only in favor of claimants, never defendants. A list of some of these bills can be found at the end of this column. They are not discussed at greater length here because I want to focus on one particular piece of pro-plaintiff legislation that, if passed, would seriously compromise our ability to defend personal injury lawsuits and keep the scales of justice in balance.

The proposed legislation is 2009 Assembly Bill 815 and its Senate counterpart SB 628, which its sponsors have euphemistically called a "Health Records Privacy Act." The bill drastically curtails a defendant's ability to obtain a personal injury plaintiff's pre-accident medical records. It also restricts and makes more costly a defendant's opportunity to obtain independent medical and vocational exams. As Wayne Maffei, a past president of this organization who has handled both plaintiff and defense work for over 30 years, has observed, this bill should really be called the "Dishonest Claimants' Protection Act."

The bill takes a multi-pronged approach. First, it changes from "shall" to "may" the directive that a claimant allow a defendant to obtain and review medical treatment records. Next, it limits the discoverable records that "may" be disclosed to those relating to the injuries for which the claimant seeks damages. In other words, under this bill, the defense attorney may get to see post-accident records for the very injuries at issue in the case, but even that is not a sure thing.

The bill then goes further. If a defendant has the audacity to want pre-accident records, the court is required to hold a hearing to determine whether to allow the additional discovery. According to section 4 of AB 815 and SB 628:

The party seeking discovery bears the burden of establishing by clear, satisfactory and convincing evidence to a reasonable certainty that the discovery relates to a pre-existing condition that is identical to or substantially similar to the injury for which the claimant seeks damages and that predates the injury for which the claimant seeks damages, and disclosure is essential to the defense relating to the cause of the injury.

Amazingly, the bill requires such a showing before the defendant ever had a chance to see the pre-accident records. Proponents of the bill apparently expect defendants to accept the word of every single personal injury plaintiff as to whether similar physical complaints existed before the accident. To say that this approach is naïve is an understatement. Such a limitation on access to pre-accident records would impose an insurmountable roadblock for defendants trying to limit damages to those provided by law; that is, only such damages as would fairly and reasonably compensate the claimant for injuries sustained in the accident.

Even honest claimants routinely forget pre-accident instances of similar complaints. Dishonest claimants are even less likely to disclose prior problems. When the claimant denies similar pre-accident complaints, how are defendants to uncover such evidence except through the claimant's pre-accident medical records? Discovery in Wisconsin is supposed to be a wide open process of finding admissible evidence, but this bill would stop the process in its tracks.

It is fair to ask what problem this proposed law seeks to redress. There are already rules of evidence that require courts to exclude at trial any records that are not relevant to the claims being asserted. Beyond that, there is no demonstrated problem of plaintiffs' privacy rights being violated in personal injury cases for this bill to cure.

AB 815/SB 628 also changes the rules for obtaining physical, mental or vocational examinations of a personal injury claimant. First, the bill specifies that there will be one examination only unless the defending party shows good cause for the claimant to undergo more than one. Next, the bill requires the defendant to get a court order specifying the time, place, manner, conditions and scope of the examination and identifying the person who will conduct it. Under the court order envisioned by the bill, the person conducting the examination would be prohibited from inquiring into "any issue bearing on any party's liability in the underlying action." Perhaps that means the doctor could not ask how the accident happened. The bill also gives the plaintiff the right to record the examination electronically and to have one or more witnesses present to observe it.

The court order envisioned by the bill would require the examination to be conducted within 100 miles of where the plaintiff lives, is employed, or transacts business. In most cases, that particular provision would not be a problem, but what about lawsuits filed in Wisconsin by personal injury claimants who now live in another state? This bill would require defendants to arrange for out-of-state examinations, probably by out-of-state experts whose testimony could be produced in Wisconsin only at substantial cost to the defendants, who, it should be remembered, did not choose the venue of the action in the first place.

Finally, the bill adds a financial kicker. It requires the defendant to pay the plaintiff all expenses related to the examination, including travel expenses, child care expenses, and a minimum of $30 per hour for the plaintiff's time. Taken together, these changes reflect a legislative animus against defendants and in favor of personal injury claimants.

But AB 815/SB 628 is a proposal, not a done deal. If we make our voices heard and explain our legitimate concerns about the unfairness of the proposed legislation, we can stop this bill. That result would be good for us, for our clients and, most importantly, for the civil justice system itself. If this bill passes, imagine the number of hearings our overburdened circuit court judges would have to hold just to determine whether defendants are entitled to basic discovery of pre-accident medical records.

AB 815/SB 628 should matter to you, so let your voice be heard. Contact your legislator by phone, e-mail or letter and urge her or him to oppose this unfair and unreasonable proposal.

Here is a list of other legislative proposals you may want to watch:

  • SB 182. It expands the statute of limitations for intentional torts from two years to three years. It was signed into law as Act 120 and took effect on February 26, 2010.
  • AB 480/SB 337. It creates a civil cause of action for acts of violence motivated by gender. It includes an expanded statute of limitations and creates a fee-shifting potential that runs only in a claimant's favor.
  • SB 203. It expands the categories of individuals entitled to recover damages for loss of society and companionship in medical malpractice cases to include parents of adult children. It also permits adult children to seek damages for the loss of society and companionship of their parents.
  • SB 563. It extends the statute of limitations for wrongful death in medical malpractice cases to three years from date of death, rather than three years from date of injury.
  • AB 367. It generally prohibits employment discrimination based upon an applicant's credit history and creates a private cause of action that would allow an applicant to sue a potential employer for compensatory damages, punitive damages, court costs and attorney fees.
  • SB 588. It creates a private cause of action against a person who violates current limitations on the sending of unsolicited faxes. It would entitle a prevailing plaintiff to recover actual damages or $200, plus reasonable attorney fees. This legislation appears to be similar to federal legislation that has spurred truly regrettable class action lawsuits over next to nothing.