JW v. BB

Decision Date26 May 2005
Docket Number No. 2004AP11., No. 2004AP9
PartiesJ.W., Plaintiff-Respondent, v. B.B., M.D., et. al., Defendant-Appellant. G.M., Plaintiff-Respondent, v. B.B., M.D., et al., Defendant-Appellant.
CourtWisconsin Court of Appeals

284 Wis.2d 493
2005 WI App 125
700 N.W.2d 277

J.W., Plaintiff-Respondent,
v.
B.B., M.D., et. al., Defendant-Appellant.
G.M., Plaintiff-Respondent,
v.
B.B., M.D., et al., Defendant-Appellant

Nos. 2004AP9, 2004AP11.

Court of Appeals of Wisconsin.

Submitted on briefs November 8, 2004.

Decided May 26, 2005.


On behalf of the defendant-appellant, the cause was submitted on the briefs of John W. Markson of Bell, Gierhart & Moore, S.C., Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of Eric J. Haag of Gingras, Cates & Luebke, S.C., Madison.

Before Deininger, P.J., Vergeront and Higginbotham, JJ.

284 Wis.2d 496
¶ 1. DEININGER, P.J

We granted a physician leave to appeal two orders that compel him to respond to certain discovery requests from the plaintiffs in these two medical malpractice actions. The physician claims the trial court erred when it ordered him to disclose his sexual orientation, his employment history and any prior complaints against him involving conduct similar to what the plaintiffs have alleged in this action. We conclude the trial court did not erroneously exercise its discretion in ordering disclosure of the physician's employment history and prior complaints regarding his practice of medicine. We also conclude, however, that the court erred in ordering the physician to disclose his sexual orientation because it is not relevant to the issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.

284 Wis.2d 497
BACKGROUND

¶ 2. The plaintiffs filed a complaint alleging the physician was "negligent in his care and treatment" for performing digital-rectal prostate exams on them during pre-employment medical examinations.1 They also alleged the physician failed to obtain their informed consent before performing the exams. The plaintiffs asserted that the physician told them the prostate exams were required for their employment physicals.

¶ 3. During a deposition of the physician, his attorney objected to the following questions put by plaintiffs' counsel, stating as grounds that the questions were irrelevant and not reasonably calculated to lead to the discovery of admissible evidence:

Are you aware of any complaints that any individuals made against you while you were at [a former employment] alleging inappropriate touching?
Why did you leave [employment with another health care provider]?
What is your sexual orientation, doctor?

On advice of his counsel, the physician did not answer these questions.

¶ 4. The plaintiffs filed a motion to compel discovery regarding the physician's sexual orientation, prior complaints against him and his employment history. The circuit court, citing a case that upheld the admission of evidence of a criminal defendant's homosexuality as being probative of his motive for committing the charged

284 Wis.2d 498
crime,2 reasoned that disclosure of the physician's sexual orientation could lead to evidence of his motive for conducting the digital-rectal exams. The court did not separately discuss the request for information regarding past complaints against the physician and his employment history. The court explained that it was not ruling on the admissibility of any of the requested information, only that the physician must respond because his responses might lead to the discovery of admissible evidence. The court also directed the parties to submit "a good, strong protective order on any answers that might be compelled."

¶ 5. The court entered orders requiring the physician to disclose: (1) his "sexual orientation"; (2) "other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams"; and (3) "the reasons [he] left previous professional employment." We granted the physician's petition for leave to appeal the orders compelling discovery. See WIS. STAT. § 808.03(2).3

ANALYSIS

¶ 6. Whether to compel a party to disclose information requested in discovery is committed to the circuit court's discretion. See Earl v. Gulf & W. Mfg. Co.,

284 Wis.2d 499
123 Wis. 2d 200, 204, 366 N.W.2d 160 (Ct. App. 1985). Properly exercised discretion involves "a statement on the record of the trial court's reasoned application of the appropriate legal standard to the relevant facts of the case." Id. at 204-05. If the circuit court does not fully explicate its reasoning, we may "examine the record to determine whether the facts support" its decision. Id. at 205. If, however, the circuit court bases its decision on an error of law, it has erroneously exercised its discretion. Id.

¶ 7. The scope of permissible discovery in a civil suit is established by WIS. STAT. § 804.01(2)(a), which provides 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 .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The physician does not claim that any of the information he was ordered to disclose is privileged. Rather, his claim is that his sexual orientation, past complaints against him, and his employment history are not relevant to any claim or defense in these actions, and, further, that the requested information is not reasonably calculated to lead to the discovery of admissible evidence.

¶ 8. We first address the ordered disclosure of the physician's sexual orientation. Relevant evidence is evidence that has a "tendency to make the existence of any fact that is of consequence to the determination of

284 Wis.2d 500
the action more probable or less probable than it would be without the evidence." WIS. STAT. § 904.01. The physician contends that his motive for conducting the examinations at issue is of no consequence to the determination of the plaintiffs' malpractice and lack of informed consent claims because both causes of action sound in negligence, where the only question is whether his conduct met the applicable standard of professional care. We agree

¶ 9. The applicable three-year statute of limitations describes a medical malpractice action as one "to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider." WIS. STAT. § 893.55(1). To prevail, the plaintiffs must prove that the physician committed a negligent act (or omission) that caused the plaintiffs injury or damages. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860. The plaintiffs so allege in their first cause of action: "[the physician], through his acts and omissions, was negligent in his care and treatment of [the plaintiffs], including but not limited to his conducting of the prostate examinations," which resulted in "pain, suffering, fright, embarrassment and emotional distress" on the part of the plaintiffs.

¶ 10. The plaintiffs' allegations in this case bear some similarities to the facts in Deborah S.S. v. Yogesh, 175 Wis. 2d 436, 442-43, 499 N.W.2d 272 (Ct. App. 1993), where the plaintiff claimed a physician touched her inappropriately during a neurological examination. As in Deborah S.S., these actions were filed between two and three years after the conduct in question, and thus, any claims of medical malpractice were timely filed, but any assault or battery claims would be time-barred.

284 Wis.2d 501
See id. at 445. Unlike the plaintiff in Deborah S.S., however, the present plaintiffs do not allege the physician touched them in places or in ways that served no medical purpose or reason, such that the prostate exams were not a part of the medical treatment the physician provided. See id. at 443 (noting that "the parties agree that the acts alleged against the physician did not serve any medical reason," and thus "the physician's offending conduct was not part of the medical treatment accorded the patient.")....

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5 cases
  • Doe v. Mayo Clinic Health System-Eau Claire Clinic, Inc.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • April 3, 2015
    ...339 N.W.2d 583. Under that malpractice theory, a claim would normally accrue upon receipt of the unnecessary treatment. See, e.g., J.W. 2005 WI App 125, at ¶ 10, 284 Wis.2d 493, 700 N.W.2d 277 (medical malpractice claims based on unnecessary and inappropriate prostate exams were timely file......
  • Doe v. Mayo Clinic Health System—Eau Claire Clinic, Inc.
    • United States
    • Wisconsin Supreme Court
    • June 23, 2016
    ...there exists, however, a legitimate medical purpose for a genital examination, a claim can fall within medical malpractice. See J.W. v. B.B., 2005 WI App 125, ¶ 10, 284 Wis.2d 493, 700 N.W.2d 277 (digital-rectal prostate exams done as part of a pre-employment physical properly fell within m......
  • State v. Muckerheide
    • United States
    • Wisconsin Supreme Court
    • January 17, 2007
    ...the listing of circumstances under sec. 904.04(2) ... is not exclusionary but, rather, illustrative. (Citation omitted.) See also J.W. v. B.B., 2005 WI App 125, ¶ 22, 284 Wis.2d 493, 700 N.W.2d 5. In State v. Young, 48 Wash.App. 406, 739 P.2d 1170 (1987), the Washington appellate court held......
  • Johannes v. Baehr, No. 2007AP2332 (Wis. App. 8/13/2008)
    • United States
    • Wisconsin Court of Appeals
    • August 13, 2008
    ...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......
  • Request a trial to view additional results
3 books & journal articles
  • Defending discovery's limits
    • United States
    • James Publishing Practical Law Books Guerrilla Discovery
    • April 1, 2022
    ...The term “relevant” as used in Rule 26(b) is very liberal. Relevancy, under this Rule, does not even require materiality. J.W. v. B.B. , 700 N.W.2d 277, 284 Wis.2d 493 (Wis.App., 2005). In a medical malpractice action that arose from digital-rectal exams that a physician performed on applic......
  • Defending Discovery's Limits
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2015 Contents
    • August 5, 2015
    ...The term “relevant” as used in Rule 26(b) is very liberal. Relevancy, under this Rule, does not even require materiality. J.W. v. B.B., 700 N.W.2d 277, 284 Wis.2d 493 (Wis.App., 2005). In a medical malpractice action that arose from digital-rectal exams that a physician performed on applica......
  • Defending Discovery's Limits
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2014 Contents
    • August 5, 2014
    ...The term “relevant” as used in Rule 26(b) is very liberal. Relevancy, under this Rule, does not even require materiality. J.W. v. B.B., 700 N.W.2d 277, 284 Wis.2d 493 (Wis.App., 2005). In a medical malpractice action that arose from digital-rectal exams that a physician performed on applica......

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