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J.W. v. B.B.5/26/2005
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.
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.
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 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.
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, , 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.
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. 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 m
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