DAVISON v. ST. PAUL FIRE & MARINE INS. CO.,

75 Wis.2d 190 (1977)

248 N.W.2d 433             CONTENTS TABLE




DAVISON, and husband, Plaintiffs-Respondents, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, and another, Defendants-Appellants.
Supreme Court  No. 72-245. Argued December 1, 1976.  Decided January 6, 1977.
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APPEAL from an order of the circuit court for

Milwaukee county:

GEORGE A. BURNS, JR., Circuit Judge. 



Affirmed.



A tort action has been commenced by Margie Davison and

Howard Davison, her husband, plaintiffs-respondents,

against Columbia Hospital and its insurer,

defendants-appellants, to recover damages for alleged

negligence and medical malpractice in the care and

treatment afforded Margie Davison while a patient at

the hospital.



On July 21, 1975, the trial court entered an order

directing the hospital to produce, for inspection and

copying by counsel for the plaintiffs, certain written

materials pursuant to Section 269.57(1), Stats.

1973.[fn1] The hospital has appealed from this order.



For the appellants there was a brief by Richard J.

Palmersheim, James L. Thomas and Law Offices of Richard

J. Palmersheim, and oral argument by James L. Thomas,

all of Milwaukee.
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For the respondents there was a brief by Stanley F.

Schellinger, James G. Doyle, James A. Baxter and

Schellinger & Doyle, S.C., and oral argument by Mr.

Baxter, all of Milwaukee.



CONNOR T. HANSEN, J.



The complaint alleges that the hospital negligently

permitted a staff physician (Dr. John W. R. Thoma), who

it knew or should have known was unqualified and

incompetent, to perform a hysterectomy upon Margie

Davison; that the hospital negligently failed to bring

to the attention of a qualified physician clinical

signs of post-operative complications; that the

hospital negligently failed to see to it that Margie

Davison received competent medical post-operative care;

and that the hospital negligently failed to ascertain

that the attending staff physician had adopted an

inadequate preoperative diagnosis.



The hospital answered, denying all negligence.



This appeal centers around the discovery activities of

the plaintiffs during the pendency of the action.



Sometime prior to November, 1974, the plaintiffs served

a subpoena duces tecum upon four staff physician

members of the Hospital Tissue Committee, the Hospital

Executive Committee, and the Department of Obstetrics

and Gynecology.



The subpoena ordered the physicians to produce all

notes, records, correspondence, reports or memorandum

of the said committees relating to the care and

treatment of Margie Davison by Dr. Thoma from July 1,

1970, on.



The plaintiffs also sought to take the depositions of

the same four staff physicians, Doctors Erbes, Boyd,

Burgess and Kretzschmar.



On November 1, 1974, the trial court, on request of the

hospital issued an order commanding the plaintiffs to

show cause why the court should not issue a protective

order pursuant to Section 887.12(3), Stats.,

suppressing the depositions of the four staff

physicians and denying discovery of papers and

documents set forth in the subpoena on the grounds that

such testimony, papers and documents were privileged

and irrelevant.
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Following a hearing on the order to show cause the

trial court determined that it would withhold a ruling

on the motion for a protective order until the

adjourned depositions were held and an actual refusal

to produce the reports was on the record and certified

to the circuit court for resolution.



On April 11, 1975, the plaintiffs served a second

subpoena duces tecum on the hospital's administrator,

Paul Kempe, as custodian of a different and more

detailed enumerated series of committee notes, records,

recommendations, correspondence, reports, memorandum,

minutes and other writings, directing him to produce

the same at a deposition to be held on April 22, 1975.



Joseph C. Rogers, assistant administrator of the

hospital, appeared at the hearing with all of the

demanded reports and documents known to be in existence

in the hospital files, in a sealed envelope.



On the advice of counsel, Rogers refused to produce the

documents.



Dr. Boyd also appeared at the deposition but refused to

answer certain questions relating to the Hospital

Tissue Committee activities on the grounds of

privilege.



The questions involving the production of the documents

and depositions of Rogers and Dr. Boyd were certified

to the circuit court for disposition.



On May 16, 1975, the plaintiffs brought an order to

show cause seeking to resolve the controversy

surrounding the privilege asserted by the hospital, and

to compel the production of the various committee

documents demanded by the April 11, 1975, subpoena for

inspection and copying.



The trial court then issued a memorandum decision in

which it determined that the privilege asserted by the

hospital did not exist under either statutory or common

law.
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It also denied the motion of the hospital for a

protective order as to the first subpoena duces tecum.



On July 21, 1975, the plaintiffs brought on another

order to show cause seeking, among other things, to

compel the hospital to produce the committee

documentation previously subpoenaed on April 11, 1975,

for inspection and copying.



On the same date, the court issued an order, pursuant

to Section 269.57(1), Stats., directing the hospital to

produce for inspection and copying, the written

materials set forth in the subpoena served upon Paul

Kempe, the hospital administrator, on April 11, 1975.



All previous orders imposing time limitations were

vacated and the pretrial order was stayed pending this

appeal.



The first subpoena and the April 11, 1975, subpoena

served on the hospital administrator demanded the

production of somewhat different information.



However, for the purpose of this appeal, we do

not deem the differences to be significant.



Three issues are presented:



1.   Does a statutory testimonial privilege exist,

     protecting the proceedings and reports of the

     Hospital Tissue Committee and other similar

     hospital staff peer review committees from

     disclosure through discovery devices in civil

     litigation?



2.   Does a common-law testimonial privilege exist,

     protecting the proceedings and reports of the

     Hospital Tissue Committee and other similar

     hospital staff peer review committees from

     disclosure through discovery devices in civil

     litigation?



3.   If neither statutory nor common-law testimonial

     privilege exist, should this court, on appeal,

     create such a privilege?



STATUTORY PRIVILEGE.



The hospital asserts that a statutory privilege exists,

which protects the proceedings and reports of the

proceedings of the Hospital Tissue Committee

and other hospital staff peer review committees

from discovery in civil litigation.
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It is the position of the hospital that Section 905.02,

Stats., together with Section H24.04(1)(n) of the

Wisconsin Administrative Code, operate to grant a

privilege to hospital staff peer review committees.



Section 905.02 reads as follows:



905.02    Required reports privileged by statute.



     A person, corporation, association, or other

     organization or entity, either public or

     private, making a return or report required

     by law to be made has a privilege to refuse

     to disclose and to prevent any other person

     from disclosing the return or report, if

     provided by law.



     A public officer or agency to whom a return

     or report is required by law to be made has a

     privilege to refuse to disclose the return or

     report if provided by law.



     No privilege exists under this section in

     actions involving false swearing, fraudulent

     writing, fraud in the return or report, or

     other failure to comply with the law in

     question.



Section H24.04(1), of the Wisconsin Administrative Code

governs the organization and administration of

hospitals in Wisconsin.



Section H24.04(1)(j) requires the establishment of an

executive committee; Section H24.04(1)(k) requires the

establishment of a credentials committee; and Section

H24.04(1)(n) requires the establishment of a hospital

tissue committee.



As set forth in the Code, the functions and

responsibilities of the various committees include

postoperative:



(1)  review and analysis of clinical work done by

     the hospital and the hospital medical staff

     personnel;



(2)  consideration of various cases in terms of

     potential errors in diagnosis and the results

     of treatment;



(3)  review, analysis and evaluating of the

     clinical work of staff members;



(4)  constructive professional criticism of staff

     members; and



(5)  continuing medical education.



The hospital relies upon the language of the

Administrative Code pertaining to the hospital tissue

committee to argue that the reports and proceedings of

the tissue committee are to remain confidential and

that in the terms of Section 905.02, Stats., this

privilege is ". . . provided by law."
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Section H24.04(1)(n) states that the hospital tissue

committee is required to review and evaluate all

surgery performed in the hospital on the basis of an

agreement or disagreement among the preoperative,

postoperative and pathological diagnoses, and on the

acceptability of the procedure undertaken.



Section H24.04(1)(n) 1. requires the committee to

meet monthly and file a written report of its

proceedings to the hospital executive committee.



Section H24.04(1)(n)2., upon which the hospital

specifically relies for the privilege, reads:



2.   This committee's work shall include

     continuing education through such mechanisms

     as utilization of its findings in the form of

     hypothetical cases and/or review of cases by

     category at staff meetings and/or publishing

     in coded form physicians' standings in the

     hospital regarding percentage of cases in

     which normal tissue is involved.



It is the position of the hospital that Section

H24.04(1)(n)2. of the Wisconsin Administrative Code,

which requires that the committee's findings be in the

form of hypothetical cases and in coded form as to

physicians, indicates a clear legislative intent that

the reports and proceedings of the committee are to

remain confidential.



Thus, submits the hospital, this expression of intent

affords the committee activity the privilege referred

to in Section 905.02, Stats.



Our reading of Section 905.02, Stats., and related

cases, brings us to the opposite conclusion.



Section 905.02 recognizes a privilege such as the

hospital seeks, ". . . if provided by law."



The judicial council committee note following Section

905.02 lists the following statutes, as illustrative of

the subject of Section 905.02:
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Sec. 48.26  Peace officer's records concerning

children under 18; Section 48.78  Records received

concerning individuals in licensed child welfare

agencies, day care centers and maternity hospitals;

Section 48.93  Adoption proceedings; Section 71.11 

Income and franchise taxes; Section 143.07 

Communicable diseases; Section 247.081  Reconciliation

effort report; and Section 346.73  Accident reports

confidential.



A review of each of the above statutes indicates that

in each, the legislature has specifically and

unequivocally established a privilege against the

disclosure of the specific materials.



Such a specific and unequivocal statement of privilege

is absent from Section H24.04(1)(n)2.



Although the Administrative Code requires, the weekly

reports, subsection 2. of Section H24.04(1)(n)

concerns itself merely with the educational

aspects of those reports.



While that subsection may provide for a limited

protection or privilege (i.e., nondisclosure of

patient's or physician's name) in the context of an

educational setting, it does not grant the overall

privilege sought by hospital.



This court has consistently strictly interpreted

privileges and confidentialities granted by statute.



In State v. Driscoll, 53 Wis.2d 699, 193 N.W.2d 851

(1972), the defendant therein argued that statements he

made to a social worker about sexual relations he had

had with his daughter were privileged under Section

247.081, Stats. Under that section, communications to

family court conciliation department personnel or

appointed social workers made during reconciliation

efforts in pending divorce or separation actions were

privileged.



This court, in denying the privilege sought,

stated at pp. 704, 705:



     "Since no action for divorce or legal

     separation was pending and the conference

     with the social worker was not at the behest

     of a family court commissioner, Section

     247.081, Stats., is not applicable.



     While it is argued this situation has all the

     earmarks of a situation which calls for

     testimonial confidentiality, we cannot give

     the section such a liberal construction as

     would change the express language of its

     scope and applicability.



     Lukaszewicz v. Concrete Research, Inc. (1969),

      43 Wis.2d 335, 342,

     168 N.W.2d 581."
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In



Luedtke v. Shedivy,

 51 Wis.2d 110,

186 N.W.2d 220 (1971),



a wife brought an action to recover damages for the

wrongful death of her husband who had been killed when

his parked vehicle was struck by another car.



The county coroner, shortly after the death, had taken

a blood sample from the deceased, which, upon analysis,

indicated that he was intoxicated.



Section 979.20(3), Stats., allowed the coroner to

collect and analyze body fluids in order

to determine the cause of death.



Specifically, however, that section prohibited the

use of such test results in any civil action ". . .

against the deceased or his estate, . . ."



The defendant in the civil action sought to

introduce the test results into evidence.



The wife objected on the grounds of the Section

979.20(3) "privilege" aspect of those test results.



This court, strictly construing the "privilege," stated

at pp. 117, 118:



     . . . Moreover, even if Section 979.20 were

     applicable here, it would not prohibit the

     admission of the test results because such

     results are inadmissible in an action

     "against the deceased or his estate."



     No one in this case has brought an action

     against the estate of the deceased.



     Appellant points out that the results

     of the tests are being used as a

     defense in the action.



     That is  they are being used

     against the deceased.



     This is claimed to be equivalent to a "civil

     action against the deceased or his estate."

     We do not agree.  In no way can the language

     of Section 979.20(3), Stats., be interpreted

     to mean that affirmative defenses are the

     same as a "civil action against the

     deceased."



This court's strict construction of statutorily

granted privileges is in accord with the generally

expressed attitudes of the commentators advocating

a narrowing of the field of privileges.
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(See:  McCormick, Evidence (2d ed. hornbook series),

p. 156, Section 77; 8 Wigmore, Evidence (McNaughton

rev. 1961), p. 527, Section 2285), and with the recent

United States Supreme Court expression on the subject

in United States v. Nixon (1974), 418 U.S. 683, 94 Sup.

Ct. 3090, 41 L.Ed.2d 1039, at pp. 709, 710:



     . . . The privileges referred to by the Court

     are designed to protect weighty and

     legitimate competing interests.



     Thus, the Fifth Amendment to the Constitution

     provides that no man "shall be compelled in

     any criminal case to be a witness against

     himself." And, generally, an attorney or a

     priest may not be required to disclose what

     has been revealed in professional confidence.



     These and other interests are recognized in

     law by privileges against forced disclosure,

     established in the Constitution, by statute,

     or at common law.



     Whatever their origins, these exceptions to

     the demand for every man's evidence are not

     lightly created nor expansively construed,

     for they are in derogation of the search for

     truth."[fn2]



The provisions of Section H24.04(1)(n)2., Wisconsin

Administrative Code do not unequivocally grant the

privilege which the hospital here seeks.



Moreover, the limited privilege or confidentiality

which that section does grant cannot be expanded or

interpreted so as to bring it within the provisions of

Section 905.02, Stats.



Subsequent to the filing of briefs, the hospital

brought to this court's attention, ch. 187, Laws of

1975, effective April 3, 1976.



That Act created sections 146.37 and 146.38, Stats.

relating to civil immunity for persons evaluating

health care providers and facilities and the

confidentiality of information acquired

in such reviews.



The effective date of the above statute

was April 3, 1976.



If the instant controversy had arisen after the

effective date of Section 146.38, Stats., at

least some of the elements of information

sought by the respondents might have been

privileged and beyond discovery under

the provisions of Section 905.02.
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The question of the retroactive effect of

Section 146.38, Stats., has not been

addressed by the parties herein.



However, the long expressed general rule cited by

this court is that statutes granting or rescinding

substantive rights will not be given retroactive

effect unless such intent was clearly expressed

by the legislature.



Feest v. Allis Chalmers Corp.,

 68 Wis.2d 760,

229 N.W.2d 651 (1975);



Mosing v. Hagen,

 33 Wis.2d 636,

148 N.W.2d 93 (1967);



Bair v. Staats,

 10 Wis.2d 70,

102 N.W.2d 267 (1960);



State ex rel. McKenna v. District No. 8,

243 Wis. 324,

 10 N.W.2d 155 (1943);



State ex rel. Schmidt v. District No. 2,

237 Wis. 186,

295 N.W. 36 (1941).



The legislature here has expressed no intent that

Section 146.38(3), Stats., should apply retroactively.



The question remains, however, as to whether

Section 146.38 involves a substantive right

of either the hospital or the plaintiffs.



Absent an established privilege, the plaintiffs,

on April 11, 1975, were entitled to discovery

of the subpoenaed documents under the

provisions of Section 269.57(1).



It is equally clear that on that date the

hospital possessed no statutory right

of privilege as to those documents.



In the context of this case, where the plaintiffs have

initiated and brought to a conclusion all possible

efforts to obtain the sought-after documents; where the

trial court has issued an order to the hospital,

commanding the production of those documents; but where

the hospital has caused the temporary delay of the

proceedings by bringing this appeal; it cannot be said

that the right to discovery has not become vested in

the plaintiffs.



Viewed in such a light, Section 146.38, Stats., does

affect the substantive rights of the plaintiffs and it

cannot be given retroactive effect.
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We conclude that at the time of the entry of the order

appealed from, no statutory right of testimonial

privilege protecting the documents in question, from

discovery, existed.



COMMON LAW PRIVILEGE.



The hospital asserts, in its brief, that a common law

privilege existed which protected the sought-after

documents from discovery, and that under the provisions

of art. XIV, Section 13, Wisconsin Constitution, this

court could and should give recognition

to such common law right.



Article XIV, Section 13, Wisconsin Constitution,

reads as follows:



     Common law continued in force.



     SECTION 13.



     Such parts of the common law as are now in

     force in the territory of Wisconsin, not

     inconsistent with this constitution, shall

     be and continue part of the law of this

     state until altered or suspended by

     the legislature.



The common law to which the constitutional provision

applies has consistently been defined as the law

arising from English court decisions rendered

prior to the Revolutionary War.



Coburn v. Harvey,

 18 Wis. 156 (*147) (1864);



Estate of Budd,

 11 Wis.2d 248,

105 N.W.2d 358 (1960);





Bielski v. Schulze,

 16 Wis.2d 1,

114 N.W.2d 105 (1962);



State v. Esser,

 16 Wis.2d 567,

115 N.W.2d 505 (1962).



There is now no question that this court can adopt

and change existing common law principles.



Bielski, supra;



Esser, supra;



Dippel v. Sciano,

 37 Wis.2d 443,

155 N.W.2d 55 (1967);



Garcia v. Hargrove,

 46 Wis.2d 724,

176 N.W.2d 566 (1970);



1971 Wis. L. Rev., 818-824.



But before this court may adopt or change any common

law privileges, those privileges must be shown to have

existed in the common law.  We have been directed to no

authority showing the existence of a common law right

or privilege such as is asserted here and none has come

to our attention.
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Neither McCormick, nor Wigmore, in their dissertation

on privilege recognize such a common law privilege.



We are of the opinion no such common law

privilege exists.



Furthermore, the enactment of Section 905.01, Stats.,

Wisconsin Rules of Evidence, is an alteration or

suspension of the common law within the

contemplation of the constitution.



Section 905.01 reads:



     905.01 Privileges recognized only as

     provided.  Except as provided by or inherent

     or implicit in statute or in rules adopted by

     the supreme court or required by the

     constitution of the United States or

     Wisconsin, no person has a privilege to:





     (1)  Refuse to be a witness; or



     (2)  Refuse to disclose any matter; or



     (3)  Refuse to produce any object or writing; or



     (4)  Prevent another from being a witness or

          disclosing any matter or producing any

          object or writing.



Even if there existed a prior common law privilege of

the type here asserted by the hospital, unless such

privilege was provided by or was inherent or implicit

in statutes, or in the rules of the supreme court,

or was required by the United States or Wisconsin

Constitution at the time the appellant asserted

the privilege, this court could not, after the

enactment of Section 905.01, recognize such

a privilege.



The claimed privilege does not relate to a

constitutional guarantee, nor does the privilege

arise from statute or supreme court rule.



If there did exist a common law privilege, that common

law right, at the time of the proceedings below, was

not reflected in nor implicit in statute or supreme

court rule and was not required by the United States

or Wisconsin Constitution.



Thus, Section 905.01, Stats., would preclude its

recognition.
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COURT CREATION OF PRIVILEGE.



As a final argument, the hospital suggests that even if

a common law or statutory privilege does not exist,

this court should, in this case, judicially

create such a privilege.



Our attention has been directed to Bredice v. Doctors

Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), affirmed,

479 F.2d 920 (D.C. Cir. 1973), wherein under similar

circumstances the federal court held that proceedings

and reports of hospital staff review committees were

entitled to a qualified privilege on the basis of

overwhelming public interest.



See also:



Gillman v. United States,

53 F.R.D. 316 (S.D.N.Y. 1971),





and



Banks v. Lockheed-Georgia Company,

53 F.R.D. 283 (N.D. Ga. 1971).



State v. Driscoll, supra, 706, sets forth four

prerequisites for granting a privilege by quoting with

approval, 8 Wigmore, Evidence, Section 2285, p. 527. 

Those prerequisites are:



(1)  The communications must originate in a

     confidence that they will not be disclosed;



(2)  confidentiality must be essential to the full

     and satisfactory maintenance of the relation

     between the parties;



(3)  the relationship should be one which, in the

     opinion of the community, ought to be

     sedulously fostered;



(4)  the injury which would inure to the

     relationship by disclosure must be greater

     than the benefit gained for the correct

     disposal of litigation.



8 Wigmore, Evidence, supra, notes that all four

of the above conditions must be present

before a privilege is recognized.



Although setting forth the prerequisites for the

granting of a privilege, Wigmore does not indicate

whether the court or the legislature is the proper

body to grant such privilege.



McCormick, supra, p. 156, observed that



     "the development of judge-made privileges

     virtually halted a century ago."



8 Wigmore, Evidence, Section 2286, p. 532, noted that

in recent times most new privileges have been sought

through legislation rather than court action.
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In State v. Driscoll, supra, this court was urged to

create a privileged confidential relationship for

private and governmental social workers.



This court stated at p. 706:



     "We are urged to create by case law a

     privileged confidential relationship for

     private and governmental social workers.



     This is possible. . ."



This court cited the four prerequisites set forth by

Wigmore and stated further, p. 706:



     ". . . We think public policy is not so

     definitely compelling or clear or the area so

     limited that we should grant testimonial

     confidentiality by court decision to social

     workers."



In this case, as in State v. Driscoll, supra, the

public policy decision to be made is not so clear or so

limited as to convince this court that it should grant

the confidentiality requested.



Furthermore, the legislature has acted in the passage

of Section 146.38, Stats., purporting to grant the

privilege sought here, and thus resolve the

conflicting public policy concerns.



However, without specifically construing the provisions

of Section 146.38, we have determined that, under the

circumstances presented in this case, it is not to

have retroactive effect.



The fact that the legislature has attempted to resolve

the public policy concerns does not make the underlying

public policy any more compelling, clear or limited.



The action of the legislature subsequent to the

commencement of this action does not persuade us

that this court should now decide a public policy

issue of the character involved here.



Also, there is serious doubt as to whether

this court can now grant the privilege

sought on a case-by-case basis.



If, as the hospital originally asserted, the privilege

sought had its basis in common law, it would appear

that Section 905.01, Stats., precludes its

enlargement on a case-by-case basis.



The judicial council committee's note following

Section 905.01, states, at 59 Wis.2d R101:
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     ". . . Common law privileges, not originating

     in the constitution, could not be enlarged on

     a case by case basis."





In its interpretation of the above language, in the

memorandum opinion denying the hospital's motion to

suppress discovery, the trial court stated:



     "Finally, and with more difficulty, we

     approach the question of whether the

     Defendants have a privilage [sic] which

     should be recognized under the common law. 

     It is true that Section 905.01 seems to

     indicate that as common law privileges are

     only recognized if they stem from the

     Constitution of either the United States or

     Wisconsin.



     905.01 is written as a general rule of no

     privilege, with exceptions to the general

     rule if such exceptions are inherent or

     implicit in a statute, the rules adopted by

     our Supreme Court, or required by the United

     States or Wisconsin Constitution.



     Significantly, there is no mention of

     any common law privilege.



     This may well lead one to conclude

     that such privileges no longer exist.



     However, the Judicial Council Committee's

     notes do say that common law privileges not

     [sic] or emanating from the Constitution

     could not be enlargEd on a case by case

     basis.



     This seems, by implication, to indicate that

     there are common law privileges.



     My interpretation of this is that common law

     privileges still exist but only if they have

     been codified by a statute, Court rule, or

     required under the Constitution.



     For example, the attorney-client privilege,

     well recognized at common law, is codified in

     the Wisconsin Rules of Evidence.



     Under this interpretation, if there were any

     common law privileges available and

     applicable to these facts they are no longer

     available under 905.01 and none can be made

     available on a case by case basis. . . ."



We believe the interpretation of the trial court,

insofar as it pertains to common law bases for

privileges is correct.



If the sought after privilege arises from common law

then it must be adopted by either supreme court rule

or by statute, and not on a case-by-case basis.



Any indication to the contrary drawn from the language

of State v. Driscoll, supra, 706, is negated by the

fact that that case was decided before the

effective date of Section 905.01, Stats.
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Since the privilege sought by the hospital has no basis

in common law, the creation of such a privilege could

only be accomplished by legislative enactment or under

the provisions of Section 251.18, Stats., after public

hearing, and in the same manner as was followed in the

promulgation of the Wisconsin Rules of Evidence.



That procedure was utilized to re-enact previously

existing privileges as in Sections 905.03-905.06; to

reassert privileges already existing at law, Section

905.02; and to establish specific new privileges,

Sections 905.07-905.10; and is the proper procedure to

be utilized in the present case.



We decline to judicially create the privilege here

sought by the hospital.



By the Court. Order affirmed.



_______________________________________________________



[fn1]



Repealed and renumbered by supreme court order

promulgating the Wisconsin Rules of Civil Procedure,

effective January 1, 1976. 67 Wis.2d 587.



See:  Sections 804.01 and 804.09, Stats.,

      at pages 654 and 678.



[fn2]



See also:



Branzburg v. Hayes (1972), 408 U.S. 665, 688,

92 Sup. Ct. 2646, 33 L.Ed.2d 626;



United States v. Bryan (1950), 339 U.S. 323, 331,

70 Sup. Ct. 724, 94 L.Ed. 884;



Blackmer v. United States (1932),

284 U.S. 421, 438, 52 Sup. Ct. 252, 76 L.Ed. 375.
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