*1 Steinberg, Ralph Plaintiffs- Marion Steinberg Respondents, Appellants-Cross Involuntary-Plaintiff-Co- Brewing Company, Miller Respondent, Appellant-Cross v. Health Care R. Wisconsin Thomas Jensen, Physicians Liability Insurance Com Plan, Insurance pany of Wisconsin and Wisconsin Patients Defendants-Respondents-Cross Compensation Fund, Appellants-Petitioners.
Supreme Court 4, 1995. argument April June Oral No. 92-2475. Decided 1995. 361.) (Also reported in 534 N.W.2d *6 defendants-respondents-cross appellants- For the petitioners by Doyle, there were briefs James G. Paul Kelly Schellinger Doyle, S.C., Brookfield and J. & argument by Kelly.
oral Paul J. respondents plaintiffs-appellants-cross For the by Gass, Leitner, there were J. Ric Mark M. briefs Marilyn Joseph Carroll, Kravit, M. S. Goode and Gass McNamara, Weber,S.C., Elkhom; Milwaukee; Denis
& Mary Wauwatosa Offices, L. and WoehrerLaw Woehrer by argument J. Ric Gass. and oral by Skog- M. Academy brief filed David Amicus curiae was lind, for the Wisconsin counsel, Milwaukee, Lawyers, of Trial by Stephen Meili, filed E.
Amicus curiae brief was Representa- Madison, for the for Public counsel, Center tion, Inc. by Adams, L.
Amicus brief filed Mark curiae was Timothy Hartin, counsel, counsel, all of A. Society Madison, for The State Medical of Wisconsin Hospital Association. and The Wisconsin presents STEINMETZ, J. case three issues This may any, extent, if First, review. to what defense for malpractice personal counsel in either a medical *7 parte plaintiffs injury action communicate ex with the Subject treating physicians? various restrictions set may below, hold that counsel commu- forth we defense parte plaintiffs treating physicians ex with a so nicate long the the as communication does involve disclo- any Second, of confidential information. to what sure may any, defendant-physician personally extent, if a parte plaintiffs communicate ex with the other treat- physicians? judicial ing We hold that outside a proceeding, may defendant-physician communicate parte plaintiffs treating physicians subject ex with a only physician's duty to the from ethical refrain dis- closing finally, confidential information. if Third and elicits defense counsel confidential information from plaintiffs treating physicians during the one of an ex parte appropriate communication, what is sanc- sanction is within appropriate tion? We hold that the trial the discretion of court.
I. is a 65-year- Marion Steinberg, Mrs. plaintiff, severely and permanently old woman who became while under the care damaged August brain Jensen. Mrs. defendant, Steinberg Thomas R. law filed subsequently malpractice and her husband insurers, Dr. Jensen and his Wisconsin against suit Plan, Physicians Care Insurance Liability Health Wisconsin, Wisconsin Company Insurance Fund.1 The found that Dr. Patients jury Compensation so, and found causally Jensen was but not negligent, damages future totaled Steinberg's that Mrs. past court, the county circuit million. The Milwaukee $10.8 Curley, judgment Patricia S. entered Honorable the judg reversed appeals The court accordingly. on ground for a new trial ment and remánded his made impermissible the defendant and attorney treating physicians with the plaintiffs contacts right impaired and thereby potentially Jensen, v. 237, 276, 519 Steinberg 186 Wis. 2d fair trial. (Ct. 1994). now the deci reverse App. N.W.2d 753 We of the court of appeals. sion in April Dr. Jensen first visited Steinberg
Mrs. treatment for shingles. 1989 to receive During discov- examination, Dr. Jensen of his physical course Over had blood Steinberg high pressure. ered that Mrs. various months, prescribed four Dr. Jensen the next *8 to find one in an effort medications antihypertensive Compensation provides fund Patients 1The Wisconsin coverage physicians in for all Wisconsin. excess insurance acceptable Mrs. effective and both that was Steinberg. an 1989, prescribed Dr. Jensen August
On During Maxzide. medication called antihypertensive fatigue, from suffered week, Steinberg the next Mrs. movements, stomach, absence bowel cramps, upset telephone She made four an urinate. inability and him of these informing symptoms. to Dr. Jensen calls Mrs. Stein- 1989, Dr. Jensen examined August 18, On tongue she office, had his noticed berg suffered a that she had laceration, likely and concluded admitted night. immediately He previous seizure the (WAMH). Hospital her to West Allis Memorial consulting called nine physicians Dr. Jensen phy- at WAMH. Three of these Steinberg Mrs. examine Beroukhim, Wong, Walter sicians were Drs. Feridoun Wong Beroukhim and are Matthew Hanna. Drs. and nephrologist (kidney Dr. Hanna is a neurologists. specialist). Mrs. Stein-
Drs. Beroukhim and examined Wong into the on that she was admitted day the same berg her a serious They diagnosed having both as hospital. imple- and deficiency sodium called hyponatremia Later mented a to correct imbalance. procedure seizure and day, Steinberg Mrs. suffered second became unresponsive. 19, 1989,
On Dr. Hanna examined Mrs. August consulted who was still Steinberg, unresponsive, Dr. next concerning Jensen her condition. The morning, again Hanna examined Mrs. Steinberg and found that she was alert and coherent and that her later, sodium level was corrected. One completely day however, Mrs. into she Steinberg lapsed a coma. When awoke, she was permanently brain severely damaged. *9 and 1991, Mrs. her hus- January 2, Steinberg
On Dr. against filed lawsuit band a medical malpractice The believe that Steinbergs Jensen and his insurers. Maxzide, which negligently prescribed Dr. Jensen which Steinberg's drop, caused Mrs. sodium level However, crux her to suffer a turn caused seizure. that Dr. Jensen corrected of their claim is negligence too result- deficiency rapidly, sodium Steinberg's Mrs. myelinolysis in a condition called central ing pontine (CPM).2 Dr. Jensen.
Thereafter, Steinbergs deposed testified that Drs. his Dr. Jensen During deposition, chiefly were neurologists, Wong, Beroukhim Steinberg's Mrs. for the correction responsible concluded,3 After the deficiency. deposition sodium and asked Wong Beroukhim and Jensen called Drs. on him. Dr. Jensen made call them to meet with counsel, Kelly. his Paul Attorney the advice of met for the three doctors day, The following pre- was not Attorney Kelly 35 minutes. approximately 2 associ neurological is that is often CPM a deterioration deficiency. medical ated a correction of a sodium with rapid increased, flows out serum sodium is water theory that as dehydrated produce becomes cells the brain. The brain cells, destroyed. The patient's myelin, insulates brain are which days improves, neurological initially but after few condition L. pons. Russell demyelinating develop in the central lesions (James Lloyd Wyngaarden, Cecil, 2127 B. Textbook of Medicine 1992); eds., see also Smith, Bennett 19th ed. H. Jr. & J. Claude Treat Stems, Following Neurological Deterioration Richard (1989). 434 Kidney Hyponatremia, Am. J. Diseases ment for concluded, parties Immediately deposition after the Steinbergs' stipulation, request into at the entered poten counsel, extending which to add other the time within However, add Steinbergs did not tially responsible parties. Wong as defendants to the lawsuit. Drs. Beroukhim and During meeting, sent. Dr. Jensen informed Drs. Wong recently Beroukhim and that he had been deposed malpractice in connection with a lawsuit against during him, CPM the testimony they had been discussed deposition, and that because of his might parties *10 be made to the lawsuit. Dr. Jensen also opinion, given that, in informed them his the care Steinberg appropriate and, therefore, Mrs. was lawsuit lacked merit. The doctors then discussed the appropriateness given of the treatment to Mrs. Stein- berg, antihypertensive medication, her reaction to the deficiency the rate at which her corrected, sodium was relationship and the between that rate and her neuro- logical impairment. Steinbergs meeting
The learned of this and its sub- through discovery July 30, 1991, stance formal on they deposed Wong. Drs. when Beroukhim and The Steinbergs also learned that before Drs. Beroukhim Wong depositions, they attended their reviewed transcript deposition of Dr. Jensen's and Mrs. Steinberg's hospitals.4 medical records from other Attorney Kelly provided had these materials to counsel Wong. for Drs. Beroukhim and August Steinbergs deposed On 1991, During deposition, Hanna. his Dr. Hanna testified that spoken attorney. he had not to Dr. Jensen or his Steinbergs questions requiring asked Dr. Hanna him provide opinion testimony regarding the treatment Steinberg's Subject objections by of Mrs. condition. questions counsel, his Dr. Hanna answered these Beroukhim, The issue of Wong, whether Drs. and Hanna given they were medical records that were not entitled to review Steinbergs is not before this court. Neither nor Dr. Jensen appealed part appeals' from that of the court of decision. Stein berg, 186 at Wis. 2d 259-63. appro-
testified that Dr. Jensen's use of Maxzide was priate Steinberg's in Mrs. case.5
Following deposition, his Dr. Hanna encountered hallway hospital. During Dr. Jensen in a at the encounter, two-minute tify Dr. Hanna volunteered to tes- According at trial on Dr. Jensen's behalf. to Dr. Jensen, he and the other doctors involved in this law- regularly ordinary suit would see each other in the activity hospital. course of their at the September Steinbergs 1, 1991, On amended complaint punitive damages their to include a claim for ground "intentionally on the that Dr. Jensen acted to deprive plaintiffs right by of their to a fair trial conducting communications with other treat- ing physicians attempt in an to influence witness testimony without consent and without noti- fying plaintiffs counsel." Dr. Jensen moved to dismiss punitive damages. the claim for hearing, Steinbergs argued At the motion *11 against Dr. Jensen had violated the rule con- Klieger Alby, tacts enunciated in State ex rel. v. (Ct. 1985), App.
Wis. 2d
Jensen's denied that a violation had occurred and assured the court that he had advised Dr. Jensen to "build a wall around himself Attorney respect physicians." to other Kelly nor also assured the court that neither he Dr. any anyone Jensen had "had conversations with other Wong_" than Dr. Beroukhim and Dr. granted The trial court punitive motion to Jensen's dismiss damages stating: claim, going particular
While I'm not to decide at in contacting moment whether Dr. Jensen's conduct these I appropriate inappropriate, doctors was can at this not point type decide this is opinion action in this merits punitive courts's Now, damage may claim. it be that it merits some type other of sanction and some other kind of rem- edy I discovery [but] under our laws since haven't I'm today, going been asked to do that to do it today. say
I will it as if... this was innocent as sounds compared conspiracy.... some sort of Steinbergs subsequently moved the trial court impose parte meeting sanctions based on the ex Wong, Specifi- Jensen, between Drs. and Beroukhim. cally, Steinbergs sought preventing an order Drs. Wong testifying and Beroukhim from at trial as to whether Dr. Jensen met the standard of care treat- ing Steinberg. Mrs. The court denied the motion and Klieger concluded that no violation had occurred. The Klieger prohibits court reasoned that a defendant's attorney conducting private pretrial from interviews plaintiffs treating physicians; pro- with the it does not
452 in from "casual treating physicians engaging hibit about the lawsuit.6 conversation" 14,1992. began Steinbergs The trial on April Instead, they Hanna as a witness. chose not to call Dr. to Dr. subse- deposition his Jensen jury. read Dr. Dr. Hanna as an witness.7 expert called quently Dr. the requisite testified that Jensen exercised Hanna family an required average physician care degree of Hanna in this case." Dr. exemplary "delivered and .care Steinbergs deposed that after shortly also testified Jensen for 1992, he talked Dr. August 19, him on him that he informed two minutes and approximately Hanna's Finally, on his behalf. testify would at trial he days testifying, that three before revealed testimony sanctions, denying the motion for the court stated: In gets just imagine a doctor that when I think its common sense malpractice may other he likelihood mention to all sued for may that such is been involved with this client who have doctors maybe on, support, to alert them to the going maybe for moral involved, they may his motivation is. problem be whatever communicating nothing wrong I believe in a doctor There is being they people, physicians or he is people, other be other they alerting sum- perhaps look for their them that can sued and complaint well. mons as and all, [Klieger] at So, case was directed I that the first of think attorney case that at least on I am satisfied defendant's Kelly seen, Mr. I this not a situation where ofwhat have the basis current anyone talked to the on his behalf has sat down and gotten gone information treating physicians on to what's as ordinarily I they be to. think this entitled from them that wouldn't being communicated doctor who was sued is a where the situation nothing, being sued, a violation he was the other doctors that just conversation. casual Decem witness on expert as an Dr. Hanna was identified 2,1991. ber *13 three-way telephone
had brief conversation with Dr. Attorney Kelly. Jensen and Kelly Attorney subsequently explained the to presence jury, court, outside the of the that he made purpose confirming scheduling. the call for the According Attorney Kelly, to Dr. Hanna had called Attorney Kelly's expressed annoyance office and testimony because his had been rescheduled on several delays unanticipated occasions due to in the trial. Attorney Kelly Dr. Jensén were concerned that Dr. might testify. Consequently, they person- Hanna ally testify. called Dr. Hanna to confirm he when would ensuing During conversation, the Dr. Hanna asked Attorney Kelly what he should review and what his testimony regarding. Attorney Kelly be would warned they privileged him that could not discuss information. depo- He then told Dr. Hanna that he should review his likely testifying sition and that he would be about the provided Steinberg, treatment he to Mrs. the treat- provided ment Dr. Jensen to her, and the antihypertensive Attorney medication called Maxzide. Kelly assured the court that he did not coach Dr. attempt engage discovery. Hanna or to Attorney Kelly After finished his direct examina- Steinbergs Hanna, tion of Dr. moved to Dr. strike testimony ground telephone Hanna's on the that the Klieger. ruling call violated on trial court deferred Steinbergs' the motion and instructed the counsel begin later, cross-examination. A short time parties trial court called into chambers and ready informed them it that was to rule on whether Klieger violation had occurred. parties
When the in chambers, arrived Steinbergs their withdrew motion strike and asked impose against Attorney the court to instead sanctions Kelly an allowing Attorney opportunity After Kelly. conversa- telephone court ruled that respond, Dr. Attorney Jensen, Kelly, tion between ÉLieger, and subse- the rule stated Hanna violated Perchik, in Zintek v. 163 Wis. 2d quently applied (Ct. 1991). did not The court App. 471 N.W.2d *14 However, it time.8 sanctions at that any formal impose the outside Attorney Kelly, presence admonish did parte in further ex commu- any not to jury, engage the wide the granted Steinbergs The court also nications. on cross- phone in the conversation exploring latitude on this exploration The limit only placed examination. imply could not state Steinbergs the was of law. had violated a rule Kelly Attorney vigorously to proceeded counsel Steinbergs' The questions him 28 Hanna, asking cross-examine between Dr. conversation telephone to the relating Hanna. At one point and Dr. Jensen, Kelly, Attorney asked, good gen- three you counsel "So the Steinbergs' little plan; and sort created together got tlemen After a "No." responded, Dr. Hanna that correct?" Attorney Kelly objected similar questions, series of court witness, and the abusing the was that counsel to admon- cross-examination the temporarily stopped so. against doing counsel ish opinion, Attorney Kelly that, in court stated its The trial violate to Dr. Hanna did not good that the call faith
believed Klieger. The court against set forth contacts the rule stated: also counsel] [whether until going on to sanction I'm to hold off defense perplexed as what the I'm little trial ....
the end this be, any, But I if from this court. don't appropriate should sanction they really don't jury which with information want to taint get here. the issues in the case need to at At the trial, close of the four-week the jury found that Dr. Jensen was in his care negligent and treat- ment of Mrs. Steinberg. However, the also jury found that his negligence was not the cause of her injuries. Lastly, jury found that Mrs. Steinberg's past future damages totaled million. $10.8
On verdict, motions after the Steinbergs argued that because of the ex parte contacts involving Mrs. Steinberg's treating physicians, were enti- they to judgment tled notwithstanding or, verdict in the alternative, to a new trial.9 also They argued that sanc- tions should be imposed against Attorney Kelly. trial court these rejected arguments, finding that verdict was not contrary of the weight evidence and that no underhandedness had taken place. With respect call telephone involving Attorney Kelly Hanna, and Dr. the court found that Dr. Hanna's testi- was not "of mony such overwhelming magnitude that it changed jury's verdict." Furthermore, the trial court noted that "plaintiffs counsel was permitted a *15 very vigorous cross-examination Hanna, of Dr. his motives, who he to, talked [and] where he talked to them,... and [that] this was an of bias which example jury th[e] could [have] take[n] and run with it if felt [it] that Dr. Hanna had done really something under- handed . . .." Finally, the court concluded that the violation committed by Attorney Kelly was not egre- and gious that the only sanction warranted was the 9 Steinbergs The argued they also were entitled to a new trial on the basis that material issues were omitted from special verdict jury and that faulty. instructions were appeals Because the court of remanded for a new trial on the Klieger violation, basis of the it did not argu address these arguments ments. These were not briefed to this court and therefore are not under consideration.
456 further in chambers against any admonishment given judg- The court then granted ex communications. parte ment on the verdict. decision, of appeals the court
In a published
for
trial on
and remanded
a new
judgment
reversed the
made
Attorney Kelly
Dr. Jensen and
ground
Steinberg's
Mrs.
contacts with
impermissible
skewered
"potentially
and thereby
treating physicians
v.
Steinberg
.
to a fair trial.
.."
Steinberg's
right
Mrs.
(Ct.
Jensen, 186 Wis. 2d
237, 276,
App.
Id. at 263. reasoned the court of potential communication that has the to breach the physician-patient privilege prohibited. is Id. at 244.
II. [I] requires
This case a determination of whether the appeals correctly interpreted physi- court of cian-patient has
privilege,
905.04,
sec.
Stats. The
interpretation
question
of a statute is a
of law, which
this court reviews de novo. Ball v. District
4No. Area
(1984).
Board, 117 Wis.
529, 537,
2d
A has a any to refuse disclosing person prevent from other and to made or information communications confidential diagnosis purposes of for obtained or disseminated or emotionalcondition patient's physical, mental or treatment of the prevent overriding purpose the is to of the statute unnecessary information. of "confidential" disclosure 905.04(l)(b) provides: Section if or information is 'confidential' A communication persons [it is] to 3rd not intended to be disclosed present interest of to further the other than those patient examination, consultation, in the the interview... or participating
persons in the ofthe are who diagnosis under the direction and treatment physician.... privilege underpinning public policy is to the
The encourage patients candidly freely medi- discuss by ensuring physicians their concerns with cal unnecessarily to a be disclosed concerns will those patient policy, person. is further To third accordingly, only privilege12 and, deemed to own privilege. may plaintiff waive exceptions 905.04(4), Stats., lists the Section injury personal privilege. in general Defendants rule of commonly malpractice invoke in actions actions 905.04(4)(c), provides éxception which in sec. found privilege "[t]here as to communications no ... discovery scope [that are] to or within relevant physical, of a condition or emotional mental, of the ... part 905.04(2), Stats., provides in relevant Section privilege to refuse to disclose patient has a prevent "[a] and to disclosing communications confidential any person from other is "an which the condition patient" any proceeding element of the claim or defense." patient's
Based on the stated in general rule of privilege 905.04(2), Stats., and the stated in sec. exception 905.04(4)(c), the court of has appeals developed body law, of five consisting published including decisions Wis. 2d defense counsel Steinberg, prohibiting from communicating with a *18 The physicians. seminal case is 125 Wis. 2d Klieger, 468. In KLieger, defendant asked the plaintiff provide a medical authorization access to permitting his treating physician's medical records. The plaintiff a medical responded by providing authorization per mitting examination of the medical records but specifically discussion of the records with prohibiting his treating physicians. relief, The defendant sought and the trial court ordered the plaintiff provide defense counsel with a medical authorization that did not contain defense language restricting counsel's right to conduct ex parte interviews with the treat The ing physicians. from plaintiff appealed the order. court noted that because appeals the plain- tiffs medical condition was an element of his medical claim malpractice against defendant, under 905.04(4)(c), stated in exception Stats., sec. the physi- cian-patient privilege did not protect "communications relevant to or within the scope discovery ...." Id. at 905.04(4)(c)). sec. (quoting However, the court of appeals reasoned that the privilege still com- protected munications that were not "within the scope discovery." The scope permissible methods of dis- 804.01(1).13 covery are set forth in sec. Because sec. 804.01(1), (1991-92), 13Section provides: Stats. may discovery by Parties obtain following one of more of the depositions upon questions;
methods: oral examination or written 804.01(1) interviews" as a pretrial does not list "private the court concluded means of discovery, permissible defense privilege prohibits the physician-patient interviews, such unless the conducting from counsel consenting the privilege by waives voluntarily plaintiff Id. at 473-74. interviews. to such Klieger, appeals the court of Four after years Haack v. Temple, 150 Wis. 2d 442 N.W.2d decided 1989). Haack, (Ct. the plaintiff's In one of App. before arrived for his deposition treating physicians attor- arrived. The defendant's attorney the plaintiffs on mechanics of the physician instructed ney he would be asked "what and told him that deposition he he and what he what saw did, perceived, he what claimed subsequently knew." The plaintiff Klieger. The court of appeals violated communication stating: disagreed, by conversations disallowed
Among
private
of a
relate to the substance
Klieger
are those which
i.e.,
records,
treatment
case,
hospital
medical
*19
insights. How-
records,
opinions and
physician
and
ever, Klieger
read
to
disallow
cannot
be
here, where
like the one involved
conversations
the mechan-
for the doctor
merely described
counsel
place.
that was about to take
deposition
of the
ics
Haack court
recognized
Thus,
implicitly
Id.
at 718.
the
privilege protects
physician-patient
because the
that
attor-
communications,
a defendant's
confidential
only
a plaintiff’s
with
parte
communicate
ney may
things
per-
production
or
interrogatories;
of documents
written
inspection
property,
upon
for
land or other
mission to enter
examinations;
requests
purposes; physical
and mental
other
(3),
sub.
the
court orders otherwise under
Unless the
for admission.
limited.
frequency
of these methods is not
of use
treating physicians
long
so
as the communication does
any
not involve
confidential information.
permissibility
The next case to
the
address
of ex
parte
plain-
contacts between defense counsel and a
treating physician
Perchik,
tiffs
was Zintek v.
163 Wis.
(Ct.
1991).
App.
Zintek,
2d
Under rule, [defendant's] proposed patient loses control of privilege. While we are confident the [defendant's] counsel would adhere to the letter and spirit authorizations, of the [defen- proposed dant's] rule system creates an honor rather than one controlled by patient and rules *20 adopt of choose not to a rule which so tram- law. We undetected, mels, plaintiff's a exercise of his or her privilege.
Id. to Steinberg, 237, 186 Wis. the last case to
Prior Us, Inc., v. "R" Toys was Wikrent apply Klieger 179 Wis. 1993). Wikrent, (Ct. In 297, 507 2d N.W.2d 130 App. injured toy claimed that she was when
plaintiff fell on her in the defendant's store. At the refrigerator of the Dr. David request family physician, report examined the her a plaintiff gave Hartman She, turn, of his of the findings. gave copy report her the plaintiff defense counsel. During deposition, and testified physician-patient privilege waived received from her about the treatment that she openly Hartman. Defense counsel including Dr. physicians, him to called Dr. Hartman and met with subsequently his Dr. Hartman later tes findings. agreed discuss on of the defendant. tify behalf communications, of these ex
Upon learning in limine to preclude filed a motion plaintiff trial. The court granted Hartman from at testifying found in favor of the motion, and the jury subsequently that Klieger The defendant appealed, arguing plaintiff. none of the conversations did not because apply confidences that were outside Dr. Hartman involved therefore, Dr. and, Dr. Hartman's report of scope excluded. improperly Hartman's was testimony affirmed the stat- judgment, The court appeals ing: 905.11, Stats., provides that a though
[ E]ven
Rule
Stats.,
by
if
granted
chapter
is waived
privilege
privilege 'voluntarily
of the
discloses
the holder
any significant part'
consents to the disclosure
*21
material,
for
protected
the
the rule is not license
opposing
parte
counsel to have ex
communications
subject
privilege. Simply put,
those
to the
with
filing of this lawsuit and her
although Wikrent's
her
subsequent
aspects
revelation of
of
communica-
physicians
her other
tions with Dr. Hartman and
these
may prevent
enforcing
privilege,
her from
Klieger's requirement
do not vitiate
actions
inquiry
only
into these areas be made
in the course
discovery procedures.
of formal
Wikrent,
Wikrent,
We
privi-
expansive interpretation
physician-patient
and we now hold that defense counsel
is not
lege,
from
ex
absolutely prohibited
communicating
parte
with a plaintiffs
treating physicians. Statutory privi-
are to be
construed.
leges
strictly
narrowly
2d 366, 386,
Franzen v. Children's
169 Wis.
Hospital,
(1992). The
14See 64 Wis.
Gen.
Wilkins v.
Durand,
527, 540,
(1970); Boyle
47 Wis. 2d
Because defense prohibit does ceedings, privilege communications from engaging counsel Furthermore, with a physicians. right not have the does privilege, patient under from engaging treating physicians his or her prevent judicial simply outside a proceeding conversation any be potentially could because confidential information imparted. *22 that mean, however, lawyers
This not does medi a plaintiffs are free to discuss physicians openly occurs cal treatment as the conversation long so an a owe ethical Physicians outside judicial proceeding. their is broader confidentiality patients of to duty of the language statutory physician- the express than v. Altenberg, See Schuster 144 Wis. patient privilege. (1988). duty 159 The ethical 223, 251, 424 2d N.W.2d because confidentiality privilege is broader than of whether a law duty applies irrespective the ethical lawsuit, a a patient- has filed. By filing suit been as certain informat plaintiff privilege waives not consent automatically but "does ion,15 existing relationship of the confidential termination Petrillo, and... patient] physician." [the [the] between 959. 449 N.E.2d is generally
The ethical owed duty by physicians Med- Oath,16 the American set forth in the Hippocratic Ethics, Medical icál Association's Principles 15 lawsuit, retains filing plaintiff-patient of a a Despite only treating physicians will right expect her that his or mental, or physical, relevant to the release information condition in issue. See sec. 905.04(4)(c), Stats. emotional 16 provides part: in Hippocratic Oath Ameri- of the Council of the Judicial Opinions Current Syntex Petrillo v. See Association. Medical can (Ill. Inc., Ct. Laboratories, App. N.E.2d 1986). a prohibits patient's duty generally ethical This infor- confidential disclosing from treating physicians However, it does consent. the patient's mation without com- from treating physicians not a prohibit defense each other with municating information. nonconfidential regarding counsel or law either physicians not presume We will by misconduct engage professional will yers information about confidential discussing knowingly would demean a presumption Such plaintiff-patient.17 See Jacque legal profession. and the both the medical Interviews With Ex parte al., M. Asher et line Plaintiff's the Physi Use Physicians Treating — The Offensive 501, 528 Det. L. Rev. Privilege, cian-Patient 67 Univ. (1990). are
Nonetheless,
physicians
we realize that
some safe-
and,
therefore,
absent
technicians
legal
ex parte
an
guards,
physician
participating
inadvertently
dis-
with an
could
attorney
conversation
*23
a plaintiff-patient.
close confidential
information about
confidentiality
the ethical
of
obligation
Based on
Whatever,
my professional practice,
in
or not
in connection with
men,
it,
hear,
ought not
connection with
I see or
in the life of
which
abroad,
spoken
divulge,
reckoning
be
all such should
be
I will not
as
kept secret.
Petrillo,
on the physician-patient
reveal,
or
to
will not
inside
physicians
that
right
expect
a patient
outside
confidences
judicial proceedings,
the physician-patient
relationship.
discloses during
Petrillo,
In
See
safeguard
In a we public policy, as matter ex "dis- engage parte that defense counsel may Unlike covery" treating physicians. ex communication, parte discovery simple wherein and answer session private question akin asks to elicit designed previously thé lawyer questions a prac- information from the Such physician. unknown easily it can lead tice is because improper discovery disclosure and consequent inadvertent attorney confidential information. The questioning physician's cannot simply reasonably anticipate the dis- and, therefore, protect against cannot response Absent consent closure of confidential information. an who desires attorney from the plaintiff-patient, *24 treating physician questions do so either must ask of a through opposing presence or a writ- in ing, of counsel duplicate sent which must be exact of an concurrently opposing counsel.18 parte prohibit all com- not ex
These restrictions do plaintiff- a counsel and munications between defense patient's treating may physicians. Defense counsel treating physi- parte plaintiffs a ex with communicate present long a as the communication does cian so disclosing any information, and so confidential risk of long represented by physician as a is not counsel as party instance, For defense counsel to the lawsuit.19 scheduling procedural may matters and discuss might joined may physician as a he or she be a tell party the lawsuit. allowing any parte Steinbergs argue plaintiffs practi- place
communications on would uncovering cally of insurmountable burden part treating physicians showing wrongdoing of on the plaintiffs disagree. Although or defense counsel. We way knowing the of an ex have no of exact substance between defense counsel and a communication physician, we counsel believe any adequately of such conver- can reach the substance example, employing For if is interested in defense counsel treating physician expert a as an and wants to ask the witness case, his her physician about or views on the defense counsel counsel, presence opposing as must do so either in the a alternative, practical through writing, copy more a an exact concurrently opposing must which be sent to counsel. 19Supreme provides: Court Rule 20:4.2 lawyer representing client, In a shall not communicate about subject representation party lawyer of the knows represented by matter, lawyer lawyer be another in the unless lawyer by has the consent the other or is authorized law to do so. *25 through cross- methods and through discovery sations Furthermore, the con- fully by exploring examination. cross-examination, may counsel plaintiff's on versation or has been biased treating physician show that showing undoubtedly a would influenced. Such unduly of the plaintiff. inure to the benefit or of the court finds that one more If the trial has confiden- disclosed treating physicians plaintiffs counsel, the trial court tial defense information its sanctions impose should exercise discretion by to the plaintiff match the caused prejudice of confidential information. For exam- disclosure that a prior treating if court finds to trial the trial ple, infor- prejudicial has disclosed confidential physician counsel, the physician's mation to defense exclusion of an We remedy. at trial would be testimony appropriate in select- courts have broad discretion stress that trial to the that matches the caused prejudice a sanction ing plaintiff. out holding places we that our
Finally,
point
In Stein
on
not on
lawyers,
physicians.
restrictions
265-66,
of
held
2d at
the court
berg,
appeals
186 Wis.
privilege
prohibits
the physician-patient
communicating
from
physicians
plaintiffs
or
regarding
other
treatment
with each
of
sec.
disagree
interpretation
condition. We
reasons.
905.04, Stats., for two
discussed,
does
First,
privilege
as previously
It is a testimo-
judicial proceedings.
not
outside
apply
evidence,
a
rule of law. In
substantive
nial rule
lacks
mandate,
this court
statutory
the absence of a
between
communications
authority
regulate pretrial
or
to the
parties
who are either
witnesses
individuals
held at the
were
the communications
lawsuit, unless
party
presence
request
counsel.
in the
of or
statutory
assuming
definition
that the
Second,
patient
applies,
medical
when a
seeks
"confidential"
physician,
commu-
communicates with
care and
present
"those
as between
nication is not confidential
plaintiff in the consulta-
interest of the
to further the
interview,"
those
examination,
or as between
tion,
diagnosis
participating in the
and treatment
"who are
physician." Section
of the
the direction
under
905.04(l)(b).
relating
information
Because
*26
patient's
or treatment
is not confi-
medical condition
treating physicians,
patient's
as between the
dential
duty
physicians'
privilege
of
ethical
nor the
neither the
confidentiality
physicians
prohibits
from discuss-
the
ing
The initiation
information with each other.20
such
infor-
not transform nonconfidential
of a lawsuit does
information.
mation into confidential
Klieger,
expressly
468,
125 Wis.
overrule
We
they
applying
are also incon-
it to the extent
the cases
Klieger
in
case.21 The
our decision
sistent with
misplaced
905.04, Stats.,
on sec.
was
court's reliance
only
judicial proceed-
privilege applies
the
because
20Otherwise, physicians would not be able to consult with
be a loss
regarding
patient's
a
condition. This would
each other
because,
recog
appeals cogently
as the court of
patients
for
nized,
intra-disciplinary communications often result
in
such
Steinberg,
receiving higher quality
care. See
patients
medical
First, it "a communication equates with "a formal method scope discovery" within the phrases things. The two refer to different discovery." to the .class of information The former refers phrase the discovery process, could be learned through The through if it learned other means. actually even which the infor- refers to the manner phrase latter learned. mation is it the statute also
Second, excepts overlooks "relevant communications that are from privilege mental, emotional condi- to" plaintiffs physical, communications will not all relevant tion.22 Certainly discovery, of formal which auspices under occur leads to our third point. Wis- incorrectly decision assumes that Klieger define the exclusive forum
consin's rules discovery *27 lawsuit, retains Despite filing plaintiff-patient a a only physician will expect that his her right or litigation. in to the issues release information is relevant by privilege a although party typically waives We note that injuries malpractice, a personal or medical filing complaint a for by raising party privilege in other contexts can also waive mental, during health physical, or emotional an issue of a case, as defendant enters such when a criminal course a pursuant or defect plea guilty by reason of mental disease of not Taylor, Stats. See State v. 36, 41, 417 971.15, 142 Wis. 2d sec. (Ct. 1987). App. N.W.2d 192 wit- with potential communicate can litigants
which Nothing not true. simply This is or litigants. nesses not communicate litigants may rules states litigants. witnesses with informally potential III. on the are premised Steinbergs' arguments The of the physi- interpretation incorrect court's Klieger The 905.04, Stats. sec. privilege, cian-patient Klieger overrule fail because we Steinbergs' arguments (1) is a privilege physician-patient hold and in judicial only that applies rule of evidence testimonial (2) may engage counsel that defense settings, a plaintiffs communications limited do the communications long so as treating physicians information. the discussion of confidential not involve at issue here. communications are separate Two Jensen, Ber- Drs. first is the between meeting The not take place did oukhim, meeting This Wong. it is not Therefore, gov- during judicial proceeding. Furthermore, we note that 905.04, Stats. erned sec. by is not confidentiality implicated duty the physicians' that no confiden- trial court found implicitly here. The meeting. this during tial information was discussed as "a situation meeting characterized court communicated to who was sued being where the doctor sued, that he was violation being the other doctors we Accordingly, casual conversation." nothing, just of the court of decision hold- part appeals' reverse that physician-patient that Dr. Jensen violated the ing meeting. 905.04, by entertaining sec. privilege, tele- communication at issue is the The second Attorney Kelly, conversation between phone *28 Dr. This communication also Jensen, and Hanna. is and, therefore, a proceeding occurred outside judicial 905.04, our holding sec. Stats. Under governed by in an ex case, lawyer engages in this a defense who physi- conversation with parte plaintiffs (1) at the physician beginning cian should inform the he or has the to decline right the conversation that she (2) the con- counsel, with defense warn that speak must limited to matters that are not versation be (3) confidential, not to disclose or physician instruct might possibly he or she believes anything discuss (4) confidential, practi- take all steps reasonably be not stray cable to ensure that the conversation does into a of confidential information. Because discussion which are rooted procedures, these four recommended law, in their change public policy, represent only.23 application prospective at However, existing the law the time Attor- under defense were Hanna, lawyers called Dr. ney Kelly discovery from engaging parte prohibited examine Thus, we will treating physicians. in ex Attorney discovery Kelly engaged whether Attor- Hanna. will also examine whether with Dr. We if and, information elicited confidential ney Kelly any so, whether information prejudiced Steinbergs. he the court made
Attorney Kelly informed testimony Dr. Hanna's trial this call to schedule testimony he still since his confirm that would appear, numerous times. During had been rescheduled already Hanna what he conversation, asked ensuing testifying. about what he would be should review and limited, After the conversation must be warning that 23Generally, prospective application given a decision is only changes existing it when law. *29 deposition to his Dr. review Kelly told Hanna
Attorney he about the treatment testifying that he would be and Dr. Jen- that Mrs. the treatment Steinberg, to provided the of Maxzide. use Steinberg, to Mrs. sen provided scheduling proce- on This discussion focused discovering a risk of and did not present dural matters Attorney We note that information. confidential any he not attempting the court that was assured Kelly that this in The court found discovery. ex parte engage had Kelly that Attorney was credible and assurance that in The trial court thus concluded good acted faith. parte discovery. in ex Kelly engaged had not Attorney this conclusion. We with agree Steinbergs wide latitude gave The trial court cross-exam- conversation on telephone exploring subsequently the trial court what Despite ination. cross-examination," as "vigorous characterized that testimony indicating not elicit Steinbergs any did confi- any involved the discussion the conversation no there is absolutely dential information. Because information was that confidential any evidence conversation,24 during telephone this brief imparted we did not contravene Attorney Kelly hold that physician-patient that public policy underpins of confidenti- duty and the ethical privilege physician's reverse that of the court Accordingly, part we ality. conversa- holding telephone decision appeals' sec. privilege, the physician-patient tion violated 905.04, Stats. during Attorney Kelly Dr. Hanna
24We note called already testimony. his had been trial to schedule Hanna unlikely Attorney attempt deposed. Thus, Kelly it is was ing stage engaging discovery in further at of the proceedings. appeals
By
the court of
the Court —The decision of
is remanded
the court of
reversed and the cause
erroneously
appeals
whether the trial court
to consider
jury
on the issue of causation.
instructed
(concurring).
ABRAHAMSON, J.
I
S.
SHIRLEY
agree
separately
I
with the basic rule
because
write
Klieger Alby,
2d,
125 Wis.
v.
established
(Ct.
1985),
App.
cases,
and its successor
N.W.2d 57
agree
Klieger's
although
all of
rationale or
I do not
overruling
majority
Klieger.
language.1
errs in
*30
agree
approach
Finally,
of,
the
or result
I do not
with
appeals
by,
bar,
in the case at
the court of
reached
Steinberg
Jensen,
237,
2d
1 of law of Wisconsin on ex For a commentator's view the Ex Nilles, treating physician, Terry see E. parte with a contacts Witnesses, Expert Law., 1994, Dec. at Parte Contacts with Wis. 18. parte of the of ex communications
For discussions issue treating physician the different state and with a Physician-Patient The Relation rules, Jennings, see, e.g., John Permissibility Between ship: Ex Parte Communications The of Counsel, 59 Treating Physicians and L. Mo. Plaintiff's Defense Restricting Ex (1994); Drigotas, Eggleston Rev. 441 Elizabeth Physicians, 69. Nonparty Treating L. Parte Interviews with N.C. Bower, B. (1991); F. Redden and William Rev. 1381 Charles Physicians, Qualifications to Bar Ex Parte Contacts with the Woodard, Shielding the (1991); Ill. 442 L. 79 B.J. David Plaintiff Physician: Ex Parte Contacts a and The Prohibition of Physician, (1991); Treating L. 233 Campbell 13 Rev. Plaintiff's Physi Parte Between Ex Contacts Philip Corboy, H. Plaintiff's Patient-Litigant's Attorneys: Protecting cian and Defense (1990). Trial, Right to a Fair Loy. 21 U. Chi. 1001 L.J.
I. ex dis- Klieger parte rule as prohibiting I read a defense nature between of a substantive cussions after treating physician and a attorney patient's Klieger, 125 Wis. 2d at a lawsuit. has initiated patient from communi- lawyer Klieger prohibit does 474. insubstantial about treating physician with a cating matters. See or scheduling procedural matters such as v. Wis. 2d 442 N.W.2d Temple, Haack (1989). however, overrules opinion, The majority the Klieger forth Klieger setting without adequately at Majority op. rule flaws that rule. indicating 471. rule, it, I to bal- Klieger as understand serves preserving interest in patient's privacy
ance a physician, against communications with confidential an effective presenting a defendant's interest interest defense, public's having against of the needed to obtain a fair resolution full disclosure that substantive informa- dispute. Klieger recognizes for a be obtained through tion defense can necessary discovery. Klieger, 125 Wis. channels established Klieger rule minimizes communication 2d at 474. The greatest by forbidding to the extent feasible a defense lawyer substantive communication between physician. a patient's treating *31 rule ex com- Finally, parte the substantive against on the that assumption munication does not rest in mis- lawyers professional or will "physicians engage _" Instead, at it Majority recognizes conduct 467. op. to certain information confi- patient's right keep that a dential the that a communication outweighs potential a a attorney between defense and physician in of might, unintentionally, even result a breach confi- dential this court's rule Similarly, information. a communications between parte judge ex prohibiting that is not judge pre- a before lawyer appearing and will judges lawyers on the that assumption mised the misconduct.2 It that merely recognizes engage to important enough guard to fair trial right a or undermine, could that against anything potentially undermining, right. have the of appearance Klieger the as The court read plaintiffs urge law- all communications between a defense prohibiting assert treating physician. and a yer of pose communications the risk even insubstantial I information. While recognize confidential disclosing risk, line "no-communica- I believe that bright rule tions-about-anything-under-any-circumstances" of a detriment be to the overprotective plaintiff would sanctions for defendant, might subject of a who be rule. minor, irrelevant infractions Such even by exceptions would be resolved inequities rule the rule eventually at until chipped away that Klieger already the mandate resembled represents. lead to overrule following majority's
Instead of Klieger, pro- I this court should strengthen believe to provide. balance that Klieger attempts tection and more basis and way explain fully legal One is to Klieger, as Justice Janine implications public policy might does. Other techniques Geske's concurrence 20:3.5(b) Supreme provides: Court Rule lawyer A shall not: (b) juror juror, judge, prospective [a communicate scheduling except permitted by official]
other . . . as law or for purposes permitted by if the court: If communication between a matter, lawyer judge has occurred order schedule lawyer notify lawyer promptly for the other involved shall party unrepresented, party, such or the other if communication. *32 protective include a order or a restrictive authorization parte by about ex communications issued the circuit requirement court; this court's that a record be made of any parte requirement communication;3 this court's parte that when an ex communication occurs between a lawyer plaintiffs treating physician, defense and a lawyer "promptly notif~y lawyer should for the other party party, unrepresented, or the other if of such com 20:3.5(b) (relating munication . . .." SCR to ex judge). technique communications with a Still another suggested by majority opinion, namely attorneys treating physicians defense advise about any confidential communications before Majority op. discussion. pub Plaintiffs, at 468. defendants and the protected ways. lic interest can be in various I believe explore the court would be wise to them.
II. apply Klieger I next turn to rule to the case at bar. In this case the circuit court determined that the three-way telephone Jensen, conversation of Dr. his lawyer Klieger and Dr. Hanna violated the rule because the conversation included a discussion of Dr. Steinberg. Hanna's treatment of Mrs. The circuit court meeting Jensen, also concluded that the of Drs. Ber- Wong Klieger oukhim and did not violate the rule lawyer participate because Dr. Jensen's did not in the conversation, the conversation was not of a substantive nature, and the doctors were entitled to see the medical perplexity records involved. The circuit court voiced appropriate Klieger about the sanctions for the rule Jacqueline Asher, al., 3 See M. et Ex Parte Interview with Treating Physicians-The Physi Plaintiff's Offensive Use of the Privilege, (1990). cian-Patient 67 U. Det. L. Rev. 501 *33 ultimately deciding that the viola- violation, because egregious, were not severe sanctions tion was not required.4 Instead, court admonished the circuit lawyer Klieger to in the future. to adhere Jensen's appellate a circuit court's deter- An court reviews Klieger of and sanctions mination a violation of the erroneous exercise warranted under discretion determination will not be The circuit court's standard. appeal and was on if it has a reasonable basis reversed with the facts of record and with made accord legal Toys accepted Us, Inc., Wikrent v. "R" standards. (Ct. App. 130, 297, 306, 2d 507 133 179 Wis. 1993). N.W.2d Although appeals the erro- the court referred to I do think the standard, exercise of discretion not neous appeals applied that standard in case. court of appeals decision, I court of Rather, as read its concluding novo, that both con- reviewed record de Klieger rule that a new trial versations violated the and appropriate against the defendant. sanction was did not errone- I the circuit court conclude ously court its discretion. The circuit exercise way a and reasoned its examined the facts of the case applicable law. consistent with reasonable conclusion appeals Accordingly should I that the court of believe decision. have the circuit court's affirmed I concur in the mandate. forth, For the reasons set Although (concurring). I GESKE, JANINE P. J. separately agree I court, the mandate of the write Klieger Alby, emphasize 125 ex v. Wis. that State rel. imposed Klieger be for a violation The sanction that should question. A poses very should be fair both difficult sanction meaningless overly parties nor harsh. and should be neither (Ct. 1985), erroneously- 468, App. 2d 373 N.W.2d is privilege the physician-patient concluded rule a lawsuit. The upon commencement waived an attor- communications between prohibiting physician regarding an party's ney opposing be must party of the opposing medical information not upon considerations upon policy public based Stats., rules of 804, or the rules under ch. discovery under ch. Stats. evidence Klieger, case, the court In a medical malpractice there "no case law to support stated that is appeals privilege statutory physician-patient notion *34 to allow on of a lawsuit so as waived commencement unless treating physicians, with informal conferences unrelated exceptions." is lost due to the privilege conclusion, reaching 2d at In Klieger, Wis. 473. circuit court of considered whether the appeals the for attorneys the prohibit erred it refused to court when from infor- hospital and the defendant-physician the about the doctor mally consulting analyzed the of appeals case. court Specifically, the 905.04(4)(c), in exception § the provided whether Id. The court Stats., "informal discovery." allowed such physi- the to the statutory exception concluded that informal did not cover cian-patient privilege of is discussion, reasoning exception the the scope through limited to which is uncovered only evidence as such statutorily discovery, methods of permitted In par- or depositions interrogatories. oral written ticular, following the of relied appeals upon court the 905.04(4)(c): in is no ... as language privilege "There § of to communications relevant to or within the scope does discovery words, . . .."In other patient-litigant not waive physician-patient privilege regard of formal any scope evidence that is outside to discovery. Klieger
I misinter- appeals the court of believe 905.04(4)(c). not an The statute does create preted § within the for- scope to the exception privilege only his puts once a discovery. Clearly, patient-litigant mal condition into mental, emotional physical, or her lawsuit, any physician-patient confidential issue in issue, including to those relating communications 804, Stats., ch. are under discovery relevant privileged. lawsuit, patient-litigant, of a filing
Despite
that his or her treat-
right
expect
retains the
fact,
is
the information that
only
will
release
ing physician
The
litigation.
in the
physician-
relevant
the issues
confidentiality.
upon
relationship
premised
patient
Oath,
American Medical Associa-
Hippocratic
Ethics,
the Current
of Medical
Principles
tion's
Medi-
American
Council
the Judicial
Opinions
ethical
define
physician's
cal Association
See Petrillo
confidentiality.
regarding
responsibilities
(Ill.
Inc.,
Laboratories,
952, 957
Syntex
v.
499 N.E.2d
1986).
all high-
These three ethical sources
Ct.
App.
nature of the physician-
"the
confidential
highly
light
.."Id.
A
who discloses
.
doctor
.
relationship
patient
*35
a
the course of con-
information in
confidential patient
liability
himself or herself to
bemay
exposing
versation
of that confidential
tort for breach
for a common law
must adhere
attorneys,
like
Physicians,
relationship.
the preser-
ethical rules regarding
their profession's
patient confidentiality.
vation of
Klieger,
attorney
a
desires
When,
defense
as
the pres-
doctor outside
treating
to a
informally
talk
a
risk
is
substantial
of the
there
patient-litigant,
ence
the medical
wander outside
the conversation will
information "relevant
to or within the
of discov-
scope
examination of an issue of the
ery
physical, mental or
emotional condition
patient,"
905.04(4)(c), Stats.,
of a
§
and into medical
information
is still privileged
904.04(2)
under both
and the general rules of physi-
§
Since
cian-patient
confidentiality.
neither
the patient-
nor
or
litigant
his
her
are
attorney
present,
they
unable to protect
the disclosure of
against
the confiden-
tial and privileged
lawsuit,
information.
In filing a
waives the
patient-litigant
and confidential-
privilege
ity
as to some
only
information,
but
"does not
automatically
consent
to the termination
of the confi-
dential relationship existing
[the
between
patient]
Petrillo,
... physician."
1 I adopt note here that this court does not the rule stated Petrillo. *36 patient-litigant presence
physician of the outside great conversation not to allow the take care must information. confidential include majority correctly defense counsel holds that parte patient-litigant's may communicate physician long treating does as the communication so or discussion confidential involve the disclosure not repre- long physician is not so as the information and op. holding Majority by at 469. This counsel. sented permits appropriate nonconfidential communications attorney and defendant's between prohib- physician. are Ex communications which sanctity they by undermine the rule because ited relationship physician-patient must, therefore, be the clearly distinguished permitted are
from those which they information. confidential do disclose because Justice Nathan to state that Chief I am authorized Shirley join S. Abrahamson and Justice Heffeenan S. concurring opinion.