2009 - 2010 LEGISLATURE
March 9, 2010 - Introduced by Representatives Richards, Pasch, Turner, Soletski,
Pope-Roberts
and A. Williams, cosponsored by Senator Sullivan. Referred
to Committee on Judiciary and Ethics.
AB815,1,4 1An Act to renumber and amend 804.10 (1); to amend 804.10 (2), 804.10 (3)
2(a) and 905.04 (4) (c); and to create 804.10 (1) (b), 804.10 (2m) and 804.10 (6)
3of the statutes; relating to: physical examinations and discovery of patients'
4records in civil actions.
Analysis by the Legislative Reference Bureau
This bill makes changes to the scope of, and procedure for, discovery in civil
cases where the mental or physical condition of a party is in issue. Under current
law, if a claimant raises an issue involving his or her mental or physical condition,
the court may, upon a motion and notice from the defending party, order the claimant
to undergo a physical, mental, or vocational examination. Under current law, the
court order specifies the time, place, manner, conditions, and scope of the
examination.
Current law requires the court to order a claimant who seeks damages for
personal injuries to give the defending party, and any physician named in the order,
permission to inspect the claimant's X-rays and hospital or medical records and
reports, unless the X-rays, records, or reports are beyond the scope of general
discovery in the case. Under current law, the defending party must give a copy of any
report he or she receives from the person who conducted the examination of the
claimant or the inspection of the claimant's X-rays, records, or reports to the
claimant. If the defending party does not give a copy of the report to the claimant
within ten days after he or she receives it, the defending party may not introduce at

trial any evidence that the defending party obtained from the examination or
inspection.
Under this bill, if a claimant raises an issue involving his or her mental or
physical condition, the court may order the claimant to undergo one physical,
mental, or vocational examination, unless the defending party shows good cause for
the claimant to undergo more than one examination. Under the bill, the order for
the examination must do all of the following: 1) specify the time, place, manner,
conditions, and scope of the examination, and identify who will conduct the
examination; 2) prohibit the person who is conducting the examination from
inquiring into any issue relating to liability in the underlying action; 3) allow the
claimant to record the examination electronically and have one or more witnesses
present at the examination; 4) require the examination to be conducted within 100
miles of where the claimant lives, is employed, or transacts business, 5) require the
defending party to pay the claimant's expenses relating to the examination,
including travel expenses, child care expenses, and a minimum of $30 per hour.
Under the bill, if a claimant seeks damages for personal injuries, a court may
order the claimant to give the defending party, and any physician named in the order,
permission to inspect any X-rays or hospital or medical records and reports that
were taken in the course of diagnosing or treating the injuries for which the claimant
seeks damages. If the defending party seeks additional discovery, the bill requires
the defending party to prove, by clear, satisfactory, and convincing evidence to a
reasonable certainty, that the additional discovery is essential to the defense relating
to the cause of the claimant's injuries and that the discovery relates to a pre-existing
condition that is at least substantially similar to the injuries for which the claimant
seeks damages.
Under the bill, the defending party must give a copy of any report that is made
pursuant to an examination or inspection within 15 days after the examination or
inspection takes place to the claimant. If a defending party fails to do so, the
defending party may not introduce at trial any evidence that the defending party
obtained from the examination or inspection. Under the bill, a claimant may
introduce evidence obtained from the examination or inspection, regardless of
whether the defending party seeks to introduce the evidence.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB815, s. 1 1Section 1. 804.10 (1) of the statutes is renumbered 804.10 (1) (a) and amended
2to read:
AB815,3,53 804.10 (1) (a) When the mental or physical condition, including the blood group
4or the ability to pursue a vocation, of a party is in issue, the court in which the action
5is pending may order the party to submit to a single physical, mental, or vocational

1examination. The order may be made on motion for cause shown and upon motion
2and
notice to all parties and by the moving party or parties united in interest, unless
3good cause is shown to order an additional examination. The order
shall specify the
4time, place, manner, conditions, and scope of the examination and the person or
5persons by whom it is to be made
who will conduct the examination.
AB815, s. 2 6Section 2. 804.10 (1) (b) of the statutes is created to read:
AB815,3,77 804.10 (1) (b) Any order issued under par. (a) shall:
AB815,3,98 1. Allow the party being examined to record the examination electronically and
9have one or more witnesses present at the examination.
AB815,3,1110 2. Prohibit the person conducting the examination from inquiring into any
11issue bearing on any party's liability in the underlying action.
AB815,3,1412 3. Require the examination be conducted at any place within 100 miles of the
13place where the party being examined resides, is employed, or transacts business in
14person.
AB815,3,1915 4. Require the adverse party or parties united in interest who request the
16examination to pay the reasonable expenses of the person being examined, including
17travelling expenses at the rate established by 26 USC 162; an hourly wage
18reimbursement of $30 or the person's actual hourly wage, whichever is greater; and
19reimbursement for child care expenses.
AB815, s. 3 20Section 3. 804.10 (2) of the statutes is amended to read:
AB815,4,321 804.10 (2) In any action brought to recover damages for personal injuries, the
22court shall also may order the claimant, upon such terms as are just, to give to the
23other party or any physician named in the order, within a specified time, consent and
24the right to inspect any X-ray or photograph or hospital, medical, or other record
25taken in the course of the diagnosis or treatment of the claimant. The court shall also

1order the claimant to give consent and the right to inspect and copy any hospital,
2medical or other records and reports that are within the scope of discovery under s.
3804.01 (2)
for the injuries for which the claimant seeks damages.
AB815, s. 4 4Section 4. 804.10 (2m) of the statutes is created to read:
AB815,4,125 804.10 (2m) If a party seeks discovery for physical, psychological, or
6psychiatric injuries that is beyond the scope of sub. (2), the court shall hold a hearing
7to determine whether to allow the additional discovery. The party seeking discovery
8bears the burden of establishing by clear, satisfactory, and convincing evidence to a
9reasonable certainty that the discovery relates to a pre-existing condition that is
10identical to or substantially similar to the injury for which the claimant seeks
11damages and that predates the injury for which the claimant seeks damages, and
12disclosure is essential to the defense relating to the cause of the injury.
AB815, s. 5 13Section 5. 804.10 (3) (a) of the statutes is amended to read:
AB815,5,414 804.10 (3) (a) No Within 15 days after a court-ordered examination under sub.
15(1) or an inspection under sub. (2) or (2m) takes place, the party adverse to the
16claimant shall deliver a true copy of any oral or written report made pursuant to the
17examination or inspection. No party adverse to the claimant may introduce
evidence
18obtained by an the adverse party by a court-ordered examination under sub. (1) or
19inspection under sub. (2) shall be admitted upon the trial by reference or otherwise
20or (2m) unless true copies of all reports prepared pursuant to such examination or
21inspection and received by such adverse party have been delivered to the other party
22claimant or to his or her attorney not later than 10 15 days after the reports are
23received by the adverse party. The party claiming damages shall deliver to the
24adverse party, in return for copies of reports based on court-ordered examination or
25inspection, a true copy of all reports of each person who has examined or treated the

1claimant with respect to the injuries for which damages are claimed
examination or
2inspection takes place. The claimant may introduce evidence obtained by the
3examination under sub. (1) or inspection under sub. (2) or (2m) regardless of whether
4the adverse party seeks to introduce the evidence
.
AB815, s. 6 5Section 6. 804.10 (6) of the statutes is created to read:
AB815,5,76 804.10 (6) Any X-ray or photograph or hospital, medical, or other record that
7is not discoverable under sub. (2), (2m), or (4) remains privileged under s. 905.04.
AB815, s. 7 8Section 7. 905.04 (4) (c) of the statutes is amended to read:
AB815,5,159 905.04 (4) (c) Condition an element of claim or defense. There is no privilege
10under this section as to communications relevant to or within the scope of discovery
11examination allowed under s. 804.10 of an issue of the physical, mental, or emotional
12condition of a patient in any proceedings in which the patient relies upon the
13condition as an element of the patient's claim or defense, or, after the patient's death,
14in any proceeding in which any party relies upon the condition as an element of the
15party's claim or defense.
AB815,5,1616 (End)
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