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J.W. v. B.B.5/26/2005
doing so comports with the standard of care. In that event, evidence that the physician was disciplined or discharged for performing unnecessary prostate exams under similar circumstances might be admissible to impeach the credibility of this testimony.
Conversely, the physician might testify that, ordinarily, he would not perform prostate exams on healthy young males during routine physicals but, on these two occasions, he discerned medical reasons for doing so. Evidence, if it exists, that he has been the subject of complaints or sanctions for performing medically unnecessary prostate exams in the past might then be admissible to establish the physician's "habit" of performing medically unnecessary prostate exams. See WIS. STAT.§ 904.06. Such evidence would not only tend to impeach the physician's testimony, but it might also be used to show that his present conduct "was in conformity with the habit." See id.; Steinberg v. Arcilla, 194 Wis. 2d 759, 765-70, 535 N.W.2d 444 (Ct. App. 1995) (distinguishing "habit" evidence from "character" evidence and concluding trial court did not err in admitting evidence in a malpractice action of a physician's habit of positioning a patient's arms during surgery).
We emphasize that we do not determine here whether any information the physician provides in response to the appealed orders will necessarily be admissible at trial. The future evidentiary rulings are committed to the sound discretion of the circuit court, to be based on the testimony and other evidence adduced at trial and the specific nature of the proffered evidence and objections to it. Admissibility of any "other acts" evidence at trial may also turn on the circuit court's discretionary weighing of its probative value versus the danger of unfair prejudice or other considerations. See WIS. STAT.§ 904.03. For present purposes, however, we cannot conclude that the order to the physician to disclose "other complaints by inmates, clients, patients, or examinees, to the effect that touched them inappropriately or unnecessarily did rectal or prostate exams, and ... the reasons left previous professional employment" is not "reasonably calculated to lead to the discovery of admissible evidence" under WIS. STAT.§ 804.01(2)(a).
Accordingly, we conclude that the circuit court did not erroneously exercise its discretion in ordering these disclosures as being within the scope of permissible discovery. We note that the circuit court directed the parties to attempt to agree on the wording of a "protective order" designed to ensure that any disclosures in response to the discovery order are not made public. The record before us does not indicate whether such an order has been agreed upon or entered. Our understanding of the circuit court's remarks when it granted the plaintiffs' discovery motions is that the physician will not be required to make the ordered disclosures until the court has entered a protective order to preserve the confidentiality of his responses until further order of the court.
CONCLUSION
For the reasons discussed above, we reverse the appealed orders insofar as they require the physician to disclose his sexual orientation. We affirm the orders in all other respects.
By the Court.--Orders affirmed in part; reversed in part and cause remanded.
Recommended for publication in the official reports.
Ordered published (06-22-2005).
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