Crawford Ex Rel. Goodyear v. Care Concepts, Inc.

ROGGENSACK, J.

¶ 13. (dissenting). The majority concludes that the information requested in interrogatories 4 and 5, which relates to acts of D.D., is *619not the type of information protected by the privilege set forth within Wis. Stat. § 905.04, and therefore it affirms the order compelling discovery. I conclude that under Wis. Stat. § 146.82(1), records of the conduct of a patient who has dementia, a mental health problem, is as much a confidential health care record as is the recorded blood pressure of a hypertensive patient and that the court's order directing release of information collected about D.D. was not a "lawful order." I also conclude that the majority's proposed in camera release of information contained in D.D.'s health care records, to determine whether it should be provided in response to interrogatories 6 and 7, contravenes § 146.82(2). Therefore, I respectfully dissent.

Release of Mental Health Information.

¶ 14. In order to answer the questions posed by this appeal, we must determine whether answering the interrogatories will involve disclosing information obtained from D.D.'s health care records, and/or disclosing the records themselves, and whether such disclosures are prohibited under Wisconsin law. At least two statutes bear upon these questions: Wis. Stat. §§ 146.82 and 905.04.

1. Standard of Review.

¶ 15. Determining whether the information requested by Crawford constitutes a patient health care record, protected under Wis. Stat. § 146.82, and whether it constitutes a confidential communication made for the purpose of diagnosis or treatment, protected by Wis. Stat. § 905.04, requires statutory interpretations, tasks this court proceeds upon without deference to the circuit court's decision. See Franzen v. *620Children's Hosp. of Wis., Inc., 169 Wis. 2d 366, 376, 485 N.W.2d 603, 606 (Ct. App. 1992). Determining whether the circuit court's order was "lawful" also requires us to engage in a de novo review of the statutes. See State v. Allen, 200 Wis. 2d 301, 308, 546 N.W.2d 517, 520 (Ct. App. 1996).

2. Health Care Record.

¶ 16. Care Concepts contends that the information it collected, which is sought by Crawford, is within D.D.'s health care records and should not be provided because it is both a privileged communication, within the meaning of WlS. Stat. § 905.04(2), and a patient health care record, within the meaning of WlS. Stat. § 146.81(4), whose confidentiality is established by Wis. Stat. § 146.82(1) and whose access without informed consent is controlled by § 146.82(2).1 The majority concludes that D.D.'s "assaultive conduct" cannot be confidential health care information obtained for purposes of treatment or diagnosis and thereafter concludes that it falls outside the scope of § 905.04(2)'s privilege. The majority opinion does not examine whether recordings of D.D.'s conduct are confidential patient health care records under § 146.82.

¶ 17. At the time of the incident which gives rise to this lawsuit, D.D. was being cared for at Care Concepts, a nursing home, due to dementia. As part of the nursing home's responsibility, it was required to docu*621ment D.D.'s activities. See WlS. Admin. Code § HFS 132.45(5)(c)3.2

¶ 18. Wisconsin Stat. § 146.81(4) defines patient health care records as: "[A]ll records related to the health of a patient prepared by or under the supervision of a health care provider3 ... but not those records subject to s. 51.30 ... ."4 Therefore, one question posed by this appeal is whether a record of D.D's conduct is a record "related to" her health. This question has not been previously addressed under Wis. Stat. § 146.82 for a person suffering from a mental health condition such as dementia. However, we have examined records relating to a person's mental health under Wis. Stat. ch. 51, and we have concluded that the Mental Health Act and its administrative rules severely restrict the release of information describing the conduct of an emotionally disturbed person, unless that individual *622consents to the disclosure. See Daniel A. v. Walter H., 195 Wis. 2d 971, 983-84, 537 N.W.2d 103, 108 (Ct. App. 1995).

¶ 19. In Daniel A., the parents of children who were allegedly sexually assaulted by a mental health patient who had been placed in the parents' home as a foster placement brought an action against the patient, the county, the private care provider and employees of the county. During that personal injury action, the parents sought to compel discovery by oral deposition of county employees concerning incidents of the patient's "sexuality" of which county employees were aware before and subsequent to placement in the parents' home. The county opposed the discovery requests on the grounds that the information was contained in treatment records and subject to privilege and confidentiality protections. We agreed and concluded that the employees could not be deposed about their knowledge of the patient's conduct, if it was obtained through records kept about his conduct, but that employees could be deposed where they obtained information through their own personal observations. See id. at 990, 537 N.W.2d at 111. In so doing, we implicitly concluded that a record of the conduct of a mental health patient recorded by health care providers was a treatment record, within the ambit of Wis. Stat. § 51.30(l)(b) and protected from disclosure, except as provided in § 51.30.

¶ 20. Although Daniel A. is not directly on point, its reasoning leads me to conclude that the recorded conduct of D.D., who suffers from a type of dementia, is related to her health and the care she is afforded by Care Concepts. Indeed, records of a mental health patient's conduct may be the only evidence that the health care provider has in deciding how to structure *623care or a treatment plan best suited to that patient. Therefore, I conclude that writings about D.D.'s conduct are patient health care records within the ambit of Wis. Stat. § 146.81(4), whose disclosure without informed consent is regulated by Wis. Stat. § 146.82(2).5

3. Lawful Order of the Court.

¶ 21. The confidentiality of all patient health care records is established in Wis. Stat. § 146.82(1), which states:

Confidentiality. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.

Because I have concluded that the records sought are patient health care records, they may be released without informed consent only under certain enumerated circumstances. See § 146.82(2). The majority relies on § 146.82(2)(a)4., "lawful order of a court of record," for its conclusion that the order for a release of some of the records did not violate § 146.82(2). However, the conclusion that the release was lawful because it was done by court order begs the question: Was the court's order lawful?

*624¶ 22. No appellate decision has examined Wis. Stat. § 146.82(2)(a)4. to determine when court orders releasing patient health care records may be lawful. However, the circumstances under which WlS. Stat. ch. 51 treatment records may be lawfully disclosed through the use of a court order were discussed by the supreme court in Billy Jo W. v. Metro, 182 Wis. 2d 616, 514 N.W.2d 707 (1994).6 There, the Racine Journal Times and others sought access to Billy Jo W.'s civil commitment court file, pursuant to WlS. Stat. § 51.30(3). The court reasoned that the statute provided no "precise guide" to what records the legislature intended to permit a court to release upon such a request. See Billy Jo W., 182 Wis. 2d at 633, 514 N.W.2d at 711. But in its analysis, it enunciated the policy that underlies the legislation which affords privacy to mental health records. It reasoned that the stigmatization that individuals still receive when they suffer from a mental illness required limiting access to records which contain mental health information. See id. at 632, 514 N.W.2d at 711. That same policy, preventing the stigmatization of those with mental health problems, which the court identified as promoting the confidentiality of treatment records under ch. 51, applies equally to the information Crawford seeks *625about D.D., because she, too, may be stigmatized by relaying her conduct.7

¶ 23. In addition to articulating the policy that underlies the confidentiality of mental health records, the decision in Billy Jo W. also provides additional guidance for my analysis of Crawford's discovery requests. Billy Jo W. identified a method by which to determine when a court's order releasing otherwise confidential records is "lawful." It did so by comparing Wis. Stat. § 51.30(4), which governs access to an individual's treatment records, as it construed § 51.30(3), which governs access to the records of a civil commitment because both statutes permit release pursuant to "lawful order" of a court. After a lengthy analysis, it concluded that the directive, pursuant to "lawful order," must mean something distinct from the statutorily listed exceptions of § 51.30(4), but "substantially similar to those . . . enumerated exceptions." See Billy Jo W., 182 Wis. 2d at 637, 514 N.W.2d at 713. The court in Billy Jo W. then went on to balance the interests of the public to information concerning a criminal proceeding, in which Billy Jo W. was a defendant, with the policies underlying circumstances sufficient to release records under § 51.30(3). However, Billy Jo W. is instructive for establishing the three components of a request to release patient information, which it reasoned were necessary before an order of a court was a "lawful order" under the statutes. They are: (1) a purpose similar in type to those listed in the statute; (2) information given only to a person who is effectuating such a purpose; and (3) information limited in amount *626to only that which is necessary to achieve such a purpose. See Billy Jo W., 182 Wis. 2d at 635-36, 514 N.W.2d at 712.

¶ 24. I conclude that the reasoning in Billy Jo W. is very instructive. Therefore, I would apply a test similar to that set out in Billy Jo W. to determine if the release granted by the circuit court was afforded by a "lawful order," pursuant to WlS. Stat. § 146.82(2)(a)4. In order to conclude that the court's order was lawful, I would need to conclude that the purpose which the order serves is different from, but substantially similar to, those purposes enumerated in § 146.82(2) for which release may be had without the consent of the patient; that the person to whom the release was granted would effectuate such a substantially similar purpose; and that the amount of information released was only that necessary to effectuate such a purpose.

¶ 25. Here, the circuit court ordered the release of information relating to D.D. in response to a WlS. Stat. ch. 804 discovery request, in a pending personal injury action by Crawford against Care Concepts. WlS CONSIN Stat. § 146.82(2) lists numerous purposes for which the release of patient health care records are authorized by the legislature without the patient's consent: e.g., to conduct various types of audits, to better assist the care of patients, to facilitate research, etc. However, not one of the purposes listed in § 146.82(2) is substantially similar to providing information to a plaintiff in a personal injury action against a health care provider. Therefore, based on the reasoning of Daniel A. and Billy Jo W., I conclude that Care Concepts should not be compelled to provide answers to the interrogatories that are the subject of this appeal, if to do so will cause it to review and relate information from *627records kept on D.D. while she was in its care.8 Accordingly, I also conclude that answers to the interrogatories were not ordered pursuant to a lawful order.

¶ 26. Additionally, I would further conclude that an in camera inspection is not authorized by WlS. STAT. § 146.82. No portion of the statute permits a court to invade what are otherwise confidential records to assist a plaintiff in a personal injury action; and therefore, disclosure to the court under the circumstances presented by this case can never result in a "lawful order" under the statutes. Accordingly, an in camera disclosure can serve no purpose. Therefore, I dissent.

The record does not reflect whether Crawford sought permission from D.D.'s guardian to receive the information she seeks.

Furthermore, Wis. Admin. Code § HFS 132.45(5)(c)2. states:

Medical Records — Content. Except for persons admitted for short term care, to whom s. HFS 132.70(7) applies, each resident's medical record shall contain:
(c) Nursing service documentation....
2. Initial care plan as required by s. HFS 132.52(4), and the care plan required by s. HFS 132.60(8).

A nursing home is a health care provider as defined by Wis. Stat. § 146.81(l)(m) as it incorporates Wis. Stat. § 50.135(1).

Neither party argues that Care Concepts is a treatment facility, pursuant to WlS. STAT. § 51.01(19), the release of whose patient records is controlled by WlS. STAT. § 51.30. But if it were, the patient records would then be WlS. Stat. ch. 51 treatment records and subject to the confidentiality provisions of § 51.30(4) and an analysis similar to that set out below. See Billy Jo W. v. Metro, 182 Wis. 2d 616, 514 N.W.2d 707 (1994).

Courts in at least one other jurisdiction have concluded that records of a mental health care patient's prior acts were confidential, in very similar circumstances. See House v. Swedish-American Hosp., 564 N.E.2d 922, 923—24 (Ill. App. Ct. 1990) (concluding that records of a patient's "prior conduct" were protected from disclosure by the patient's rights of confidentiality).

Billy Jo W. arose from WlS. Stat. ch. 51and its restrictions on the release of the treatment records of a mental health care patient. Therefore, it parsed the circumstances under which WlS. STAT. § 51.30(3) permits the release of treatment records "pursuant to lawful order" of a court. However, as the phrase, "lawful order," is identical to that used in Wis. Stat. § 146.82(2)(a)4., the reasoning of Billy Jo W. is very helpful.

See also ROBERT M. Levy & Leonard S. Rubenstein, The Rights of People with Mental Disabilities (4th ed. 1999), for a good discussion of the many adverse effects that flow from disclosure of a patient's mental health records.

In certain circumstances, the records of patients in nursing homes have privacy protections under federal law as well. See 42 U.S.C. § 1395i-3(a)-(h) (1993 & Supp. 1999). Because neither party brought federal statutes to the attention of the court, I do not address whether federal law has any application to Crawford's requests of Care Concepts.