Section 905.04. Physician-patient, registered nurse-patient, chiropractor-patient, psychologist-patient, social worker-patient, marriage and family therapist-patient, podiatrist-patient and professional counselor-patient privilege.

 

(1)   Definitions. In this section:

(a) “Chiropractor" means a person licensed under s. 446.02 , or a person reasonably believed by the patient to be a chiropractor.

(b) A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, to persons reasonably necessary for the transmission of the communication or information, or to persons who are participating in the diagnosis and treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.

(bm) “Marriage and family therapist" means an individual who is licensed as a marriage and family therapist under ch. 457 or an individual reasonably believed by the patient to be a marriage and family therapist.

(c) “Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.

(d) “Physician" means a person as defined in s. 990.01 (28) , or reasonably believed by the patient so to be.

(dg) “Podiatrist" means a person licensed under s. 448.63 or a person reasonably believed by the patient to be a podiatrist.

(dm) “Professional counselor" means an individual who is licensed as a professional counselor under ch. 457 or an individual reasonably believed by the patient to be a professional counselor.

(e) “Psychologist" means a licensed psychologist, as that term is defined in s. 455.01 (4) , or a person reasonably believed by the patient to be a psychologist.

(f) “Registered nurse" means a nurse who is licensed under s. 441.06 or licensed as a registered nurse in a party state, as defined in s. 441.50 (2) (j) , or a person reasonably believed by the patient to be a registered nurse.

(g) “Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under ch. 457 or an individual reasonably believed by the patient to be a social worker, advanced practice social worker, independent social worker, or clinical social worker.

(2)   General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's podiatrist, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.

(3)   Who may claim the privilege. The privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary.

(4)   Exceptions.

(a) Proceedings for commitment, guardianship, protective services, or protective placement or for control, care, or treatment of a sexually violent person. There is no privilege under this rule as to communications and information relevant to an issue in probable cause or final proceedings to commit the patient for mental illness under s. 51.20 , to appoint a guardian in this state, for court-ordered protective services or protective placement, for review of guardianship, protective services, or protective placement orders, or for control, care, or treatment of a sexually violent person under ch. 980 , if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of commitment, guardianship, protective services, or protective placement or control, care, and treatment as a sexually violent person.

(am) Proceedings for guardianship. There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under s. 54.36 (1) or s. 880.33 (1) , 2003 stats.

(b) Examination by order of judge. If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(c) Condition an element of claim or defense. There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(d) Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.

(e) Abused or neglected child or abused unborn child.

2m. There is no privilege for information contained in a report of child abuse or neglect that is provided under s. 48.981 (3) .

3. There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

(f) Tests for intoxication. There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in s. 340.01 (1v) .

(g) Paternity proceedings. There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under subch. IX of ch. 767 .

(h) Reporting wounds and burn injuries. There is no privilege regarding information contained in a report under s. 255.40 pertaining to a patient's name and type of wound or burn injury.

(i) Providing services to court in juvenile matters. There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under s. 48.067 , 48.069 , 938.067 or 938.069 . An intake worker or dispositional staff member may disclose information obtained while providing services under s. 48.067 or 48.069 only as provided in s. 48.78 and may disclose information obtained while providing services under s. 938.067 or 938.069 only as provided in s. 938.78 .

Sup. Ct. Order, 59 Wis. 2d R121; 1975 c. 393 ; 1977 c. 61 , 418 ; 1979 c. 32 s. 92 (1) ; 1979 c. 221 , 352 ; 1983 a. 400 , 535 ; 1987 a. 233 , 264 ; Sup. Ct. Order, 151 Wis. 2d xxi (1989); 1991 a. 32 , 39 , 160 ; 1993 a. 98 ; 1995 a. 77 , 275 , 436 ; 1997 a. 292 ; 1999 a. 22 ; 2001 a. 80 ; 2005 a. 387 , 434 ; 2005 a. 443 s. 265 ; 2007 a. 53 , 97 , 130 ; 2009 a. 113 ; 2013 a. 158 . Sub. (4) (a) applies to proceedings to extend a commitment under the sex crimes act. State v. Hungerford, 84 Wis. 2d 236 , 267 N.W.2d 258 (1978). By entering a plea of not guilty by reason of mental disease or defect, the defendant lost the physician-patient privilege by virtue of sub. (4) (c) and the confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor, 142 Wis. 2d 36 , 417 N.W.2d 192 (Ct. App. 1987). A psychotherapist's duty to 3rd parties for dangerous patients' intentional behavior is discussed. Schuster v. Altenberg, 144 Wis. 2d 223 , 424 N.W.2d 159 (1988). A defendant did not have standing to complain that a physician's testimony violated a witness's physician-patient's privilege under this section; the defendant was not authorized to claim the privilege on the patient's behalf. State v. Echols, 152 Wis. 2d 725 , 449 N.W.2d 320 (Ct. App. 1989). Under sub. (4) (g), the history of a pregnancy is discoverable. The court may permit discovery of the history as long as information regarding the mother's sexual relations outside of the conceptive period is eliminated. In re Paternity of J.S.P. 158 Wis. 2d 100 , 461 N.W.2d 794 (Ct. App. 1990). Because under sub. (4) (f) there is no privilege for chemical tests for intoxication, the results of a test taken for diagnostic purposes are admissible in an OMVWI trial. City of Muskego v. Godec, 167 Wis. 2d 536 , 482 N.W.2d 79 (1992). A patient's mere presence in a physician's office is not within the ambit of this privilege. A defendant charged with trespass to a medical facility, s. 943.145, is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576 , 489 N.W.2d 678 (Ct. App. 1992). To be entitled to an in camera inspection of privileged records, a criminal defendant must show that the sought after evidence is relevant and may be necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 Wis. 2d 600 , 499 N.W.2d 719 (Ct. App. 1993). See also State v. Lynch, 2015 WI App 2 , 359 Wis. 2d 482 , 859 N.W.2d 125 , 11-2680 . State v. Lynch, 2015 WI App 2 , affirmed by State v. Lynch, 2016 WI 66 , ___ Wis. 2d ___, ___ N.W.2d ___, 11-2680 . The patient's objectively reasonable expectations of confidentiality from the medical provider are the proper gauge of the privilege. State v. Locke, 177 Wis. 2d 590 , 502 N.W.2d 891 (Ct. App. 1993). When a patient's medical condition is at issue the patient-client privilege gives way. Wikrent v. Toys “R" Us, 179 Wis. 2d 297 , 507 N.W.2d 130 (Ct. App. 1993). Ex parte contacts between several treating physicians after the commencement of litigation did not violate this section. This section applies only to judicial proceedings and places restrictions on lawyers, not physicians. Limited ex parte contacts between defense counsel and plaintiff's physicians are permissible, but ex parte discovery is not. Steinberg v. Jensen, 194 Wis. 2d 439 , 534 N.W.2d 361 (1995). There is no general exception to privileged status for communications gathered from incarcerated persons. State v. Joseph P. 200 Wis. 2d 227 , 546 N.W.2d 494 (Ct. App. 1996), 95-2547 . Both initial sex offender commitment and discharge hearings under ch. 980 are “proceedings for hospitalization" within the exception to the privilege under sub. (4) (a). State v. Zanelli, 212 Wis. 2d 358 , 569 N.W.2d 301 (Ct. App. 1997), 96-2159 . A party may not challenge on appeal an in camera review of records conducted at his own request. State v. Darcy N.K. 218 Wis. 2d 640 , 581 N.W.2d 567 (Ct. App. 1998), 97-0458 . This section does not regulate the conduct of physicians outside of a courtroom. Accordingly it does not give a patient the right to exclude others from a treatment area. State v. Thompson, 222 Wis. 2d 179 , 585 N.W.2d 905 (Ct. App. 1998), 97-2744 . When a motion has been made seeking a minor victim's health care records, the state shall give notice to the victim and the victim's parents, providing a reasonable time to object to the disclosure. If the victim does not expressly consent to disclosure, the state shall not waive the materiality hearing under Schiffra. Jessica J.L. v. State, 223 Wis. 2d 622 , 589 N.W.2d 660 (Ct. App. 1998), 97-1368 . The psychotherapist-patient privilege does not automatically or absolutely foreclose the introduction of a therapeutic communication. When a therapist had reasonable cause to believe a patient was dangerous and that contacting police would prevent harm and facilitate the patient's hospitalization, the patient's statements fell within a dangerous patient exception to the privilege. State v. Agacki, 226 Wis. 2d 349 , 595 N.W.2d 31 (Ct. App. 1999), 97-3463 . Under the Schiffra test, an in camera inspection of the victim's mental health records was allowed. The defendant established more than the mere possibility that the requested records might be necessary for a fair determination of guilt or innocence. State v. Walther, 2001 WI App 23 , 240 Wis. 2d 619 , 623 N.W.2d 205 . Release of records containing information of previous assaultive behavior by a nursing home resident was not prohibited by the physician-patient privilege. A nursing home resident does not have a reasonable expectation of privacy in assaultive conduct. The information may be released by court order. Crawford v. Care Concepts, Inc. 2001 WI 45 , 243 Wis. 2d 119 , 625 N.W.2d 876 , 99-0863 . An in camera inspection of confidential records under Schiffra is not restricted to mental health records. State v. Navarro, 2001 WI App 225 , 248 Wis. 2d 396 , 636 N.W.2d 481 , 00-0795 . The preliminary showing for an in camera review of a victim's mental health records requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative of other evidence available to the defendant. The information will be “necessary to a determination of guilt or innocence" if it “tends to create a reasonable doubt that might not otherwise exist." State v. Green, 2002 WI 68 , 253 Wis. 2d 356 , 646 N.W.2d 298 , 00-1392 . The test set out in Shiffra and Green , pertaining to access to privileged mental health records applies to a defendant requesting confidential records during postconviction discovery and the defendant should be required to meet the preliminary Shiffra-Green burden. State v. Robertson, 2003 WI App 84 , 349 Wis. 2d 349 , 661 N.W.2d 105 , 02-1718 . Communications with an unlicensed therapist were privileged because of the patient's reasonable expectation that they would be and because the unlicensed therapist worked under the direction of a physician. Johnson v. Rogers Memorial Hospital, Inc. 2005 WI 114 , 283 Wis. 2d 384 , 627 N.W.2d 890 , 03-00784. The privilege under this section is not a principle of substantive law, but merely an evidentiary rule applicable at all stages of civil and criminal proceedings, except actual trial on the merits in homicide cases. 64 Atty. Gen. 82. A person claiming a privilege in a communication with a person who was not a medical provider under sub. (1) (d) to (g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. U.S. v. Schwenson, 942 F. Supp. 902 (1996).