804.10 Physical and mental examination of parties; inspection of medical documents.

(1) When the mental or physical condition, including the blood group or the ability to pursue a vocation, of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

(2) In any action brought to recover damages for personal injuries, the court shall also order the claimant, upon such terms as are just, to give to the other party or any physician named in the order, within a specified time, consent and the right to inspect any X-ray photograph taken in the course of the diagnosis or treatment of the claimant. The court shall also order the claimant to give consent and the right to inspect and copy any hospital, medical or other records and reports that are within the scope of discovery under s. 804.01 (2).

(3)

(a) No evidence obtained by an adverse party by a court-ordered examination under sub. (1) or inspection under sub. (2) shall be admitted upon the trial by reference or otherwise unless true copies of all reports prepared pursuant to such examination or inspection and received by such adverse party have been delivered to the other party or attorney not later than 10 days after the reports are received by the adverse party. The party claiming damages shall deliver to the adverse party, in return for copies of reports based on court-ordered examination or inspection, a true copy of all reports of each person who has examined or treated the claimant with respect to the injuries for which damages are claimed.

(b) This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with any other statute.

(4) Upon receipt of written authorization and consent signed by a person who has been the subject of medical care or treatment, or in case of the death of such person, signed by the personal representative or by the beneficiary of an insurance policy on the person's life, the physician or other person having custody of any medical or hospital records or reports concerning such care or treatment, shall forthwith permit the person designated in such authorization to inspect and copy such records and reports. Any person having custody of such records and reports who unreasonably refuses to comply with such authorization shall be liable to the party seeking the records or reports for the reasonable and necessary costs of enforcing the party's right to discover.

History: Sup. Ct. Order, 67 Wis. 2d 585, 680 (1975); 1975 c. 218; 1993 a. 424; 1995 a. 345.

Although a personal injury claimant's counsel attended a stipulated independent medical examination without court order or the defendant's knowledge, the trial court did not abuse its discretion in refusing to limit cross-examination of the physician since the presence of counsel was not prejudicial and the court order could have been obtained under Whanger guidelines. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284, 254 N.W.2d 255 (1977).

The trial court may order a claimant to consent to the release and inspection of health care records and reports of treatment received prior to the claimed injury if the requester shows that the records may reasonably lead to discovery of admissible evidence and the claimant has an opportunity to assert physician-patient privilege. Ambrose v. General Cas. Co. 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990).

Medical records discovery in Wisconsin personal injury litigation. 1974 WLR 524.

Avoiding E-Discovery Traps. Kehoe & Rummelhoff. Wis. Law. June 2011.