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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
treating an obstetrical patient], required the patient to be moved to Labor and Delivery and the attending physician or the staff physician to be contacted to assess the patient."
* At 6:00 a.m., "The standard of care required Dr. Lindemann to notify an upper level senior resident or the attending obstetrician and move Marlene Phelps to the Labor and Delivery section for closer monitoring by labor and delivery nurses and the staff or attending obstetrician."
* That the defendant, Dr. Matthew Lindemann was negligent in his care and treatment of Marlene Phelps and Adam Phelps under both the standard of care applicable to a first year resident and the standard determined to be applicable by this court in its decision dated November 27, 2002.
Thus, as applied to the facts of this case, the competing standards of care were not as disparate as the court of appeals surmised. A review of the record indicates that the circuit court found Dr. Lindemann negligent under either standard, and that his negligent conduct was essentially the same: (1) the failure to consult with another physician; and (2) the failure to move Marlene to the Labor and Delivery section of the hospital. Given these findings, we are not persuaded that the percentages of comparative negligence allocated to Dr. Lindemann for his actions and St. Joseph's Hospital for the implementation of its residency program would be influenced by a change in the standards by which their relative conduct was measured. Accordingly, we conclude that the circuit court's exercise of discretion was not clearly erroneous.
V.
We turn next to the applicability of the health care services review privilege found in Wis. Stat. § 146.38. This issue stems from a letter written by Dr. Worthington to Dr. Cruikshank regarding Dr. Lindemann's actions on November 24, 1998. In the letter, Dr. Worthington complained that Dr. Lindemann had "failed in a number of areas," which he specified, in connection with his treatment of Marlene. PIC claims that the letter was protected from disclosure by Wis. Stat. § 146.38. The Phelpses, by contrast, argue that the privilege does not apply.
Wisconsin Stat. § 146.38(1m) provides, with exceptions not material here, that " o person who participates in the review or evaluation of the services of health care providers . . . may disclose any information acquired in connection with such review or evaluation." Wis. Stat. § 146.38(2) addresses several distinct categories of materials created by the statute and the applicability of the privilege to each one:
All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10(4) or otherwise except as provided in sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10(4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
The purpose of the health care services privilege is to "'protect the confidentiality of the peer review process, in the hope that confidentiality would encourage free and open dis
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