Sylvia M. Crawford, by June E. Goodyear, her guardian, Plaintiff-Respondent, v. Care Concepts, Inc., d/b/a Premier Care and St. Paul Fire & Marine Insurance Company, Defendants-Appellants, Donna Shalala, Secretary of the United States Department of Health & Human Services, Defendant, 233 Wis. 2d 609

EICH, J. ¶ 1. Sylvia Crawford, a patient at one of Care Concepts' nursing homes, sued Care Concepts and its insurer, claiming she was injured when physically attacked by another patient. Crawford submitted interrogatories to Care Concepts asking, among other things, whether the attacker had, in the past, engaged in (

a) conduct directed against other patients or staff which was likely to cause "physical pain or injury," or (

b) conduct having "a tendency to cause a disturbance." In each instance, Care Concepts was asked to describe any such incidents and indicate whether they were memorialized in reports or records. Care Concepts refused to answer, claiming that disclosure of the requested information is prohibited by the physician-patient privilege stated in Wis. Stat. § 905.04. The circuit court disagreed and granted Crawford's motion to compel. ¶ 2.

We conclude that, as a matter of law, the information sought by the first set of interrogatories is not subject to the statutory privilege, and we affirm the circuit court's order in that regard. We also conclude that the other set of interrogatories might possibly reach privileged information — but that that determination cannot be made without having Care Concepts' actual answers before us.

We therefore reverse the circuit court's order with respect to the latter set of interrogatories, remanding the case with directions to order their in camera submission so that the court may take such action on Care Concepts' motion as it may consider appropriate in light of this decision. ¶ 3. The facts are not in dispute. Crawford was attacked and seriously injured by D.D., another patient residing at the home.

In her lawsuit, Crawford claimed the Care Concepts staff was negligent for "allowing... [D.D.], knowing that she was violent and [had] attacked other persons, to be in a position where she could attack . . . Crawford." Among the interrogatories Crawford served on Care Concepts were the following: INTERROGATORY NO. 4: State whether or not [D.D.] ever engaged in conduct towards an employee, of defendant, Care Concepts, Inc., a resident of defendant, Care Concepts Inc., or any other person which caused or reasonably could have been expected to cause physical pain or injury, illness, or other physical impairment.

INTERROGATORY NO. 5: If the answer to Interrogatory No. 4 is in the affirmative, for each such incident please provide the following information: A. The date such incident occurred. B. The name and current address of any person against whom such action was taken. C. State whether or not any record or reports of the incidents were prepared by defendant, Care Concepts, Inc., or on its behalf. D. Describe in detail the nature of the incident.

INTERROGATORY NO. 6: State whether or not, in addition to any incident described in the answers to Interrogatories Nos. 4 and 5, [D.D.] ever engaged in any conduct the nature of which has a tendency to cause a disturbance. INTERROGATORY NO. 7: If the answer to Interrogatory No. 6 is in the affirmative, for each such incident please provide the following information: A. The date such incident occurred. B. State whether or not any record or reports of the incidents were prepared by defendant, Care Concepts, Inc., or on its behalf. C. Describe in detail the nature of the incident. ¶ 4.

Care Concepts asks that we reverse the circuit court's order in its entirety on grounds that WlS. Stat. § 905.04(2) prevents Care Concepts from disclosing any and all information requested in the interrogatories. The application of a statute to conceded facts is a question of law which we review de novo. Steinberg v. Jensen, 194 Wis. 2d 439, 458, 534 N.W.2d 361 (1995). ¶ 5. Wisconsin Stat. § 905.04(2) provides:

(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 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 person, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor (emphasis added).

"Confidential" is defined as follows in Wis. Stat. § 905.04(l)(b): A communication or information is 'confidential' if [it is] 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, or persons reasonably necessary for the transmission of the communication or information or persons who are participating in the diagnosis and treatment under the direction of the physician, registered nurse . . . psychologist, social worker . . . or professional counselor.... ¶ 6.

Care Concepts argues that because Wisconsin law requires nursing home personnel to document each resident's mental and physical condition, D.D.'s health care records must necessarily contain confidential information regarding her care and treatment — including "observations of her behavior and how she is responding to treatment." "These observations," it argues — observations which must necessarily include observations of her assaultive and/or disruptive behavior toward Crawford and others — "are as much a part of her confidential health care record as any communications she made during the course of her stay at the nursing home," and are therefore protected by the statutory privilege. ¶ 7.

Looking to the language of the statute, we observe first that, reasonably construed, the word "confidential" must be considered as modifying both "communications made" and "information obtained or disseminated." As may be seen above, the statute defining the term "confidential," Wis. Stat. § 905.04(l)(b), uses "communications" and "information" interchangeably.

We are thus satisfied that,, by its plain terms, § 905.04(2) applies to confidential communications made by a patient to a health-care provider (or confidential information relating to the patient which is obtained by or disseminated to a health-care provider) under circumstances where the communication (or information): (1) is made (or disseminated) for the purpose of diagnosing or treating the patient's physical or mental condition; and (2) the patient intends that the communication (or information) not be disclosed to anyone other than participating healthcare providers for any purpose other than "to further the patient's interest in the consultation, examination or interview at which the communication is made or the information obtained or disseminated." ¶ 8.

The "physical harm" interrogatories — Interrogatories Nos. 4 and 5 — seek information, including records or reports, regarding incidents in which D.D. engaged in conduct directed toward a particular person which either caused, or reasonably could have been expected to cause, "physical pain or injury . . . or . . . impairment." The conduct sought to be discovered is, in essence, assaultive conduct. See Meyer v. Briggs, 18 Wis. 2d 628, 630, 119 N.W.2d 354 (1963) (assault is an unlawful attempt, coupled with apparent and real present ability, to do bodily harm to another).

And we fail to see what a nursing home resident's assaultive conduct — whether undertaken intentionally or impulsively and whether occurring in a residential or care-giving setting within the home — has to do with confidential information obtained by, or disseminated to, health-care providers for purposes of diagnosis or treatment. ¶ 9. We have also held that "the proper gauge of the scope of the § 905.04(2) privilege" is "[t]he patient's objectively reasonable perceptions and expectations," State v. Locke, 177 Wis. 2d 590, 604, 502 N.W.2d 891 (Ct.

App. 1993), and we similarly fail to see how a nursing home resident could have a reasonable expectation of privacy in such assaultive conduct — again, regardless of whether it is intentional or impulsive and regardless of where it occurs within the home. Finally, the privilege exists to encourage patients to freely and candidly discuss medical concerns with health-care providers by assuring them that those concerns will not be unnecessarily disclosed to third parties. Steinberg, 194 Wis. 2d at 459.

Crawford is not requesting release of any records of D.D.'s health or medical care — the interrogatories seek only to discover non-medical information which may exist in records or reports maintained by the nursing home relating to prior incidents where D.D. was involved in conduct that actually caused — or had the potential to cause — physical harm or injury to others. We think the gap between the information sought by Interrogatories Nos. 4 and 5 and the statute's raison d'etre is even wider than the gap between that information and the plain language of privilege embodied in Wis. Stat. § 904.05(2).

We therefore conclude that the circuit court did not err in granting Crawford's motion to compel Care Concepts to answer those interrogatories. ¶ 10. We see the situation somewhat differently with respect to Interrogatories Nos. 6 and 7. They seek information, including records and reports, relating to any conduct engaged in by D.D. "the nature of which has a tendency to cause a disturbance." The language is quite general and not limited to the assaultive-type conduct inquired into by Interrogatories Nos. 4 and 5.

It could conceivably reach matters that are arguably privileged — such as D.D.'s reactions or resistance to actual medical or psychiatric treatment, in the privacy of the treatment room, which might be said to cause a "disturbance" in that setting. And even though we believe the chance of these interrogatories reaching privileged information is indeed slim, it nonetheless exists and we do not think it should be ignored. ¶ 11. In the past, when facing disputed issues of privilege, we have recognized the value of in camera proceedings as an appropriate means of resolving such disputes. Dyson v.

Hempe, 140 Wis. 2d 792, 805-06, 413 N.W.2d 379 (Ct. App. 1987). Indeed, in another physician-patient case, we said that the in camera inspection of materials claimed to be privileged under WlS. Stat. § 905.04(2) is "the best tool" available for making such a determination, see State v. Munoz, 200 Wis. 2d 391, 399-400, 546 N.W.2d 570 (Ct. App. 1996); and we think that process is particularly applicable here. ¶ 12.

We therefore reverse the circuit court's order with respect to Interrogatories Nos. 6 and 7 and remand to allow the court to order in camera production of the requested materials so that it may determine, under the rules we have discussed above, whether any information so produced may be privileged under WlS. Stat. § 905.04(2). In all other aspects, we affirm. By the Court. — Order affirmed in part; reversed in part and cause remanded with directions. A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

We granted Care Concepts' petition for leave to appeal from the court's interlocutory order. Care Concepts refers us to Wis. Admin. Code § HFS 132.45 (5)(c)(3), which requires "a narrative nursing note" to document each resident's condition. For residents requiring skilled care, these notes are required "as needed . . . but at least weekly," whereas for residents not requiring skilled care, the notes are required "as often as needed ... but at least every other week." Care Concepts also argued to the circuit court (and to us) that WlS.

STAT. § 146.82, which prohibits release of patient health care records to unauthorized persons without the patient's consent, bars Crawford's interrogatories. The statute also states, however, that such records may be released "under a lawful order of a court." Wis. Stat. § 146.82(2)(a)4. As a result, any privileged material would not be released under any circumstances, and any material that is non-privileged could be released by order of the court.