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,
ST. PAUL FIRE & MARINE INSURANCE COMPANY,
and another, Defendants-Appellants.
Supreme Court No. 72-245.
Argued December 1, 1976.
Decided January 6, 1977.
APPEAL from an order of the circuit court for
GEORGE A. BURNS, JR., Circuit Judge.
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
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.
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
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,
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
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
Dr. Boyd also appeared at the deposition but refused to
answer certain questions relating to the Hospital
Tissue Committee activities on the grounds of
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
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
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
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
3. If neither statutory nor common-law testimonial
privilege exist, should this court, on appeal,
create such a 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.
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
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
As set forth in the Code, the functions and
responsibilities of the various committees include
(1) review and analysis of clinical work done by
the hospital and the hospital medical staff
(2) consideration of various cases in terms of
potential errors in diagnosis and the results
(3) review, analysis and evaluating of the
clinical work of staff members;
(4) constructive professional criticism of staff
(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."
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
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:
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
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
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."
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
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.
(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
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.
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
Viewed in such a light, Section 146.38, Stats., does
affect the substantive rights of the plaintiffs and it
cannot be given retroactive effect.
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
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.
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 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.
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.
Neither McCormick, nor Wigmore, in their dissertation
on privilege recognize such a common law privilege.
We are of the opinion no such common law
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
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
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.
Gillman v. United States,
53 F.R.D. 316 (S.D.N.Y. 1971),
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
(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.
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
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:
". . . 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
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
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.
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.
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.
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.