Johannes v. Baehr, No. 2007AP2332 (Wis. App. 8/13/2008)

Decision Date13 August 2008
Docket NumberNo. 2007AP2332.,2007AP2332.
PartiesAlice L. Johannes, Plaintiff-Appellant, v. Peter H. Baehr, D.C., Baehr Chiropractic Center, S.C. and NCMIC Insurance Company, Defendants-Respondents.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Reversed.

Before Brown, C.J., Anderson, P.J., and Neubauer, J.


We granted Alice L. Johannes' petition for leave to appeal, WIS. STAT. § 808.03(2) (2005-06),1 seeking to challenge the circuit court's order limiting the scope of discovery by barring her from learning the names of individuals who had complained that Dr. Peter H. Baehr had touched them inappropriately during the course of chiropractic adjustments. The circuit court held that Baehr had a privilege under state and federal law not to identify names of patients who had complained about inappropriate touching. The court also held that complaints involving other patients would be inadmissible other acts evidence. We now reverse the circuit court because it erroneously exercised its discretion.

¶ 2 Johannes commenced this action against Baehr alleging that during treatment for a lower back injury Baehr unhooked her bra and touched and massaged her breast for five minutes. Johannes pled three causes of action:

(1) chiropractic negligence, (2) failure to obtain informed consent, and

(3) offensive bodily contact. She sought compensatory and punitive damages.

¶ 3 Approximately seven months after suit was commenced Baehr filed a motion for a protective order under WIS. STAT. § 804.01(3). The motion stated that the catalyst for the request was that

[a]t the recent telephone scheduling conference with the Court, plaintiff's counsel suggested that he plans to discuss at depositions other acts where Dr. Baehr may have touched female patients inappropriately. During the telephone conference, Judge Weinke indicated that he normally does not admit "other acts" evidence in civil cases.

¶ 4 In the motion, Baehr asserted that Johannes was seeking to discover other acts evidence that would be inadmissible at trial; the evidence would be unfairly prejudicial; discovery would violate the privacy laws found in the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 201 (HIPAA)2; and the evidence would be annoying, embarrassing, unduly burdensome and expensive. Baehr did not file any evidentiary affidavit in support of his motion.3

¶ 5 In a response brief, Johannes asserted, "It is public knowledge based on multiple newspaper reports that at least one dozen women have complained to local law enforcement about Dr. Baehr."4 She relied on J.W. v. B.B., 2005 WI App 125, ¶¶20-26, 284 Wis. 2d 493, 700 N.W.2d 277, for the proposition that complaints against a doctor for inappropriate touching are discoverable, subject to a protective order. She also contended that WIS. STAT. § 804.01(2)(a), permits broad discovery as long as it might lead to the discovery of admissible evidence. She argued that other acts evidence is relevant to her claim for punitive damages. Finally, she contended that privacy issues under state and federal law can be addressed with a limited protective order.

¶ 6 The court granted Baehr's motion in a brief order:

1. Dr. Baehr has a privilege under applicable state and federal law to not identify the names of other patients, the treatment provided to such other patients, and whether there have been any complaints made by any other patients in regard to the pending litigation.

2. The Court finds that the alleged other complaints involving other patients are inadmissible other acts evidence. Any minimal probative value of such evidence is outweighed by the danger of unfair prejudice, confusion of the issues, and the potential to mislead the jury.

We granted Johannes' petition for leave to appeal challenging the circuit court's issuance of the protective order.

¶ 7 Johannes maintains that under Wis. Stat. § 804.01 she is permitted to pursue information that is reasonably calculated to lead to the discovery of admissible information, and the protective order in this case runs afoul of liberal discovery. She argues that it was inappropriate for the court to rule near the beginning of this lawsuit that other acts evidence would be inadmissible and suggests the ruling should have been delayed until the nature of the other acts evidence had been learned through discovery. Johannes points out that the circuit court failed to undertake the analysis mandated by State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998), when holding that other acts evidence would be inadmissible.

¶ 8 She asserts that the circuit court protective order ignores J.W., 284 Wis. 2d 493, ¶¶20-26, which she characterizes as making "crystal clear that evidence that a doctor has touched other patients in an allegedly sexual manner is discoverable." Johannes contends that evidence of other similar bad acts is relevant to punitive damages. Finally, she insists that under HIPAA, specifically 45 C.F.R. § 164.512(e), health care records can be discovered during the course of judicial proceedings. Johannes faults the court for not considering a limited protective order under which the court would have communicated with the complainants identified by Baehr and given them the opportunity to permit or forbid disclosure of their identity to Johannes.

¶ 9 Circuit courts have broad discretion in determining whether to limit discovery through a protective order. State v. Beloit Concrete Stone Co., 103 Wis. 2d 506, 511, 309 N.W.2d 28 (Ct. App. 1981). Our standard of review is whether the circuit court mistakenly exercised its discretion in granting the order. Shibilski v. St. Joseph's Hospital, 83 Wis. 2d 459, 470-71, 266 N.W.2d 264 (1978).

A proper exercise of discretion requires a statement on the record of the trial court's reasoned application of the appropriate legal standard to the relevant facts of the case. If there is no statement of the trial court's reasoning, the reviewing court may examine the record to determine whether the facts support the trial court's decision. The trial court misuses its discretion when it bases its decision on an error of law.

Earl v. Gulf & W. Mfg. Co., 123 Wis. 2d 200, 204-205, 366 N.W.2d 160 (Ct. App. 1985) (citations omitted).

¶ 10 We conclude that the circuit court erroneously exercised its discretion in a number of respects. First, there is no statement in the record supporting the court's conclusion that "Dr. Baehr has a privilege under applicable state and federal law to not identify the names of other patients." The court failed to apply the legal standards of HIPAA and WIS. STAT. § 146.82 to the sparse facts of the record. Second, the court held any other acts evidence inadmissible without conducting the analysis required by Sullivan, 216 Wis. 2d 768; it failed to consider the applicability of J.W.; and it did not consider whether other acts evidence is relevant to punitive damages.

¶ 11 Turning first to privacy concerns raised by HIPAA and WIS. STAT. § 146.82. HIPAA, and the rules issued by the federal government under it, "are intended to protect the privacy of a broad range of health care information." Timothy A. Hartin, New Federal Privacy Rules for Health Care Providers, 75 WISCONSIN LAWYER 14, 14 (2002). While HIPAA provides privacy protection, the 7th Circuit has noted HIPAA does not create a privilege for patients' medical information, it merely provides the procedures one must follow in order to secure the disclosure of such information from a "covered entity." Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 925-26 (7th Cir.2004).

¶ 12 We need not discuss in depth the workings of HIPAA and WIS. STAT. § 146.82 because Baehr concedes state and federal medical privacy laws do not bar discovery of the identity of other complainants. Baehr does not respond in any manner to Johannes' assertion that patient health care records are discoverable under state and federal law pursuant to an order of the court or her suggestion that a limited protective order could be drafted to protect the identity of other complainants. We take the absence of a reply as a concession, see Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (arguments ignored may be deemed conceded), and, therefore, we reverse that portion of the circuit court's protective order based on state and federal privacy laws. Still, we make some observations before leaving this topic.

¶ 13 HIPAA preempts all state medical privacy laws except those that are more stringent. Jay E. Grenig and Jeffery S. Kinsler, 8 WISCONSIN PRACTICE SERIES, CIVIL DISCOVERY § 16:4 (Thomson/West 2008). WISCONSIN STAT. § 146.82 is more stringent than HIPAA because the statute limits discovery of medical records to lawful court orders; however, in some instances, HIPAA permits discovery through the use of a subpoena or discovery request issued by an attorney. Grenig at § 16:4.

¶ 14 We note that "the HIPAA regulations [45 C.F.R. § 164.512(e)] permit discovery of protected health information so long as a court order or agreement of the parties prohibits disclosure of the information outside the litigation and requires the return of the information once the proceedings are concluded." A Helping Hand, LLC v. Baltimore County, Md., 295 F.Supp.2d 585, 592 (D. Md., 2003). It has been suggested that the parties and court prepare an order for disclosure and protective order with precision because only health care information expressly authorized by the order can be released.5 Grenig at § 16:3. A precise court order that complies with HIPAA will also constitute a lawful court order required by WIS. STAT. § 146.82(2)(a)4.

¶ 15 Of course, another means of obtaining protected health care information is the informed written consent of the patient. Grenig at § 16:4. A properly prepared written consent of the patient is...

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