PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
April 11,
2001
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 00-0901
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
II
Roslyn L. Braverman,
Plaintiff-Appellant,
v.
Columbia Hospital, Inc.,
OHIC Insurance Company
and Wisconsin Patients
Compensation Fund,
Defendants-Respondents,
Clay J. Frank, M.D. and
Physicians Insurance
Company of Wisconsin,
Defendants.
APPEAL from an order of the circuit court for Waukesha County: JAMES R.
KIEFFER, Judge. Affirmed in part; reversed in part and cause remanded.
Before Brown, P.J., Nettesheim and Anderson, JJ.
¶1. NETTESHEIM, J. This is a medical malpractice case commenced by
Roslyn L. Braverman against Columbia Hospital, Inc., its liability insurer and the Wisconsin
Patients Compensation Fund (collectively, Columbia).1 We previously granted Braverman's petition for
leave to appeal a nonfinal protective order barring Braverman from discovering certain
records relating to Columbia's quality assurance procedures. The trial court issued the
protective order pursuant to Wis. Stat. §146.38(2) (1999-2000)2 which bars the release of the record of a review
or evaluation conducted under a health care provider's quality assurance program.
¶2. Braverman raises three issues on appeal. First, she contends that her
discovery request for Columbia's statistical data on its infection rates is not barred by Wis.
Stat. §146.38. Second, she contends that a report issued by the Wisconsin Department
of Health and Family Services (Department) in conjunction with Columbia's quality
assurance review is not barred by the statute. Third, she contends that the trial court erred
by refusing to conduct an in camera review of the materials she sought by discovery. We
agree with Braverman's first argument. We hold that Columbia's statistical data of infection
rates is subject to discovery. We reverse that portion of the protective order. We reject the
balance of Braverman's arguments and affirm the balance of the protective order. We
remand for further proceedings.
FACTS
¶3. The facts of this case are not in dispute. We take them from
Braverman's original and amended complaints and from the various affidavits filed by
Columbia in support of its motion for a protective order.
¶4. On February 23, 1998, Braverman underwent surgery at Columbia
Hospital for cervical spinal stenosis and left upper extremities polyradiculopathy.
Subsequently, Braverman was diagnosed with a nosocomial infection. She was rehospitalized
from March 6 through March 16, 1998, and again from March 31 through April 7, 1998, for
treatment of the infection.
¶5. As mandated by Wis. Admin. Code §HFS 124.08, Columbia
maintains an Infection Control Committee (ICC). Its purpose is to influence and improve the
quality of health care through the practice of infection control. The ICC recommends
practices to reduce risk of infection to patients, visitors and health care workers. The ICC
membership includes officers and members of the various departments within the hospital
who meet on a monthly basis and are governed by a set of rules. Columbia's Hospital
Infection Control Practitioners compile infection statistics. The ICC conducts an
investigation or study of any postoperative infection for purposes of quality assurance. The
ICC coordinates its infection control processes in compliance with the by-laws and rules of
the medical staff in order to reduce the risk of hospital acquired infections in patients,
visitors and health care workers.
¶6. Columbia's various medical departments have Medical Staff
Committees. A subset of these committees is the Medical Council, which is also
denominated the Quality Assessment and Quality Improvement Committee. All of
Columbia's medical staff departments report their quality assessment agenda deliberations to
the Medical Council, which, in turn, makes recommendations and acts upon those
deliberations.
¶7. On October 31, 1996, Judy Hintzman, Columbia's Infection Control
Coordinator, requested Mary Proctor, a supervisor of the Communicable Disease
Epidemiology Unit for the State of Wisconsin, Department of Health and Family Services, to
review and evaluate Columbia's services for purposes of quality assurance. Proctor's
ensuing report states that Hintzman's request was prompted by "[a] preliminary report
investigating an increase in nosocomial infections following open heart surgery at Columbia
Hospital [between] July 1 and October29, 1996 ...."
PROCEDURAL HISTORY
¶8. Braverman's original complaint alleged that Columbia was negligent in its
treatment of her. Her second amended complaint added a claim that Columbia had failed to
adequately inform Braverman under the law of informed consent. Columbia answered,
denying the allegations.
¶9. Braverman followed with a series of interrogatories and document requests.
Columbia objected on the grounds that some of the information sought by Braverman was a
record of its review and evaluation procedures under Wis. Stat. §146.38 and therefore
was privileged pursuant to subsecs. (1m) and (2) of the statute. In its written decision, the
trial court categorized the disputed material as follows: "(1) infection control
materials, including meeting minutes, infection rates, and the results of any investigations
conducted by quality assurance/peer review committees; (2) reports and/or evaluations of the
Joint Commission on Hospital Accreditation; and (3) information derived from a quality
assurance investigation conducted in association with the Wisconsin Department of
Health." Applying the court of appeals decisions in State ex rel. Good Samaritan
v. Moroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1985), Franzen
v. Children's Hospital, 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992),
and Mallon v. Campbell, 178 Wis. 2d 278, 504 N.W.2d 357 (Ct. App.
1993), the court ruled that all three categories of materials were privileged.
¶10. Braverman appeals. We will discuss the trial court's ruling in greater
detail as we discuss the various issues.
STANDARD OF REVIEW AND GENERAL
PRINCIPLES OF PRIVILEGE LAW
¶11. Generally, discovery disputes are addressed to the trial
court's discretion. Franzen, 169 Wis. 2d at 376. We will uphold a
discretionary decision if the trial court applied the relevant law to facts of record using a
process of logical reasoning. Id. When the trial court's discretionary
ruling is based on an error of law, the court has erred in the exercise of its discretion.
Id.
¶12. However, in this case, the ultimate issue is the meaning of Wis. Stat.
§146.38 as applied to the undisputed facts. That exercise presents a question of law
which we review de novo. Briggs v. Farmers Ins. Exch., 2000 WI App
40, ¶14, 233 Wis. 2d 163, 607 N.W.2d 670. Despite our de novo standard, we value
a trial court's decision on the question. Scheunemann v. West Bend, 179
Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). Here, although we disagree with one
portion of the trial court's ruling, the court has nonetheless provided us with a helpful and
thorough decision on the issues.
¶13. A party asserting a privilege carries the burden to establish the privilege.
Franzen, 169 Wis. 2d at 386. We narrowly interpret privileges created
by statute. Id. When determining whether a privilege exists, we inquire
into the existence of the relationship upon which the privilege is based and the nature of the
information sought. Id. The determination of privilege is one for the
courts, not for the professionals involved. Id.
WIS. STAT. §146.38 AND THE CASE LAW
¶14. We set out the relevant portions of Wis. Stat. §146.38 in the
accompanying footnote.3 The
purpose of the privilege created by §146.38 is "to protect the confidentiality of
the peer review process, in the hope that confidentiality would encourage free and open
discussion, among physicians knowledgeable in an area, of the quality of treatment rendered
by other physicians." Moroney, 123 Wis. 2d at 98. The review
contemplated by the statute is intended to aid physicians on the hospital staff in maintaining
and improving the quality of their work, and the review lies at the core of the protection
afforded by the statute. Id.
¶15. In Mallon, the court of appeals held that quality
assurance records are privileged under Wis. Stat. §146.38 if two elements are
satisfied. Mallon, 178 Wis. 2d at 287. First, the
investigation must be part of a program organized and operated to improve the quality of
health care at the hospital. Id. Second, the organization contemplated by
the statute is a group with relatively constant membership, officers, a purpose and a set of
regulations. Id.
¶16. In Franzen, the court of appeals further analyzed Wis.
Stat. §146.38, and set out a methodology for trial courts to follow when addressing a
privilege question under §146.38. The court addressed the three distinct categories of
materials created by the statute and whether the privilege applied to each:
We first note that the plain language of
this section creates three distinct categories of materials: (1) a "record of [ ]
investigations, inquiries, proceedings and conclusions," (2) "information,
documents or records presented during the review," and (3) "matters within [a
person's] knowledge." Materials in the first category are expressly protected from the
discovery process. Materials in the second category are not protected by this subsection.
Materials in the third categories are expressly made available in "any civil
action.
Franzen, 169
Wis. 2d at 377-78 (footnote omitted).
¶17. Franzen took particular note that Wis. Stat.
§146.38(2) recognizes two distinct kinds of records: (1) records of the investigations,
inquiries, proceedings and conclusions; and (2) records presented during the review or
evaluation. Franzen, 169 Wis. 2d at 378-80. Since the former are
privileged whereas the latter are not, Franzen held that a trial court must
distinguish between the two. Id. at 381. The trial court performs this
task by making three distinct findings of fact:
(1) identify those individuals preparing
a record in order to determine if they are either evaluators or members of an organization
"reviewing or evaluating services,"
(2) determine if a record pertains to an investigation, inquiry, proceeding or
conclusion of the evaluator or organization identified in step one,
(3) determine if a record was presented to the
evaluator/organization or was kept by the
evaluator/organization.
Id. at 381-82
(footnote omitted).
¶18. In this case, the trial court applied the Mallon and
Franzen tests to the three categories of disputed materials. We do not
read Braverman's appellate briefs or her presentation at oral argument to quarrel with the
trial court's application of the Mallon and Franzen
tests, assuming that Wis. Stat. §146.38(2) applies. Rather, Braverman's
arguments are more fundamental. She contends that Columbia's statistical data of infection
rates is not covered by the statute. And even if this data is covered, Braverman contends
that it is exempted from the privilege by virtue of para. (3)(d). Braverman similarly argues
that the statute does not apply to the Department or the report it issued. In addition,
Braverman contends that the trial court was required to conduct an in camera inspection of
the materials she sought by discovery.
DISCUSSION
1. Statistical Data of Infection Rates
¶19. Braverman sought Columbia's statistical data regarding the rates of
infection for postoperative patients from the year 1990 to the date of her discovery request.
Columbia does not deny that this information exists. In her response to one of Braverman's
interrogatories, Judy Hintzman, Columbia's Infection Control Coordinator, acknowledged
that the hospital's infection control surveillance plan provides for the monitoring of infection
rates. And in her affidavit in support of Columbia's protective order, Hintzman stated that
the hospital's infection control practitioners compile infection statistics.
¶20. Braverman first argues that this kind of statistical data is not even covered
by Wis. Stat. §146.38. But we do not address this argument because we conclude that
such information is exempt from the privilege pursuant to para. (3)(d). This provision reads:
(3) Information acquired in
connection with the review and evaluation of health care services shall be
disclosed and records of such review and evaluation shall be released, with
the identity of any patient whose treatment is reviewed being withheld unless the patient has
granted permission to disclose identity, in the following circumstances:
....
(d) In a report in statistical form. The report may identify any
provider or facility to which the statistics relate[.] (Emphasis added.)
¶21. We see this language as clear
and unambiguous. And since Columbia's statistical data qualifies under the paragraph, we
conclude that Braverman is entitled to discover this data.
¶22. Columbia disagrees. It argues that Wis. Stat. §146.38(3)(d) is
rendered ambiguous when considered in light of the entire statute. See State v.
Williams, 198 Wis. 2d 516, 527, 544 N.W.2d 406 (1996) ("Subsections
of a statute must be interpreted in a manner consistent with the purpose of the statute as a
whole .... `A statute should be construed to give effect to its leading idea, and the entire
statute should be brought into harmony with the statute's purpose.'"). Columbia argues
that the exemption set out in para. (3)(d) collides with the privilege otherwise conferred by
the statute and therefore the statute is ambiguous. Columbia then turns to certain legislative
history, which, according to Columbia, reveals that the exemption for statistical data set out
in para. (3)(d) was not intended as a full-blown exception to the privilege otherwise created
by the statute. Instead, Columbia contends that the exception was intended to apply only to
data sharing between professional standards review organizations and health care system
agencies.
¶23. We have no quarrel with Columbia's argument that we should construe
the subsections of a statute in light of the purpose of the statute as a whole. But that does
not allow us to rewrite a statute which is otherwise plain and unambiguous on its face. The
legislature routinely enacts laws that recite a general rule followed by exceptions. Such
action, standing alone, does not render the exception, or the statute, ambiguous. While we
can look to legislative history to confirm that a statute is unambiguous, we are not at liberty
to do so in the face of language which is clear and unambiguous. State v.
Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991). "[W]e
presume the legislature chose its terms carefully and with precision to express its
meaning." Landis v. Physicians Ins. Co., 2000 WI App 164,
¶9, 238 Wis. 2d 190, 616 N.W.2d 910. Columbia's argument also runs afoul of the
maxim that privileges created by statute are to be narrowly construed.
Franzen, 169 Wis. 2d at 386. That is all the more reason to respect the
clear language of the exemption that the legislature has set out in Wis. Stat.
§146.38(3)(d).
¶24. We recognize that we may not apply the ordinary and accepted meaning
of the language in a statute if it leads to an absurd result. Seider v.
O'Connell, 2000 WI 76, ¶32, 236 Wis. 2d 211, 612 N.W.2d 659.
However, we see nothing absurd about the legislature choosing to exempt statistical data
from the general rule of privilege otherwise conferred on the record of a quality assurance
procedure under Wis. Stat. §146.38. While we need not speculate about this
legislative choice, it may have come about because the legislature recognized that litigants
such as Braverman would have a need for such data, particularly in an informed consent case
such as this. Regardless, our role is not to justify the legislative action or to substitute our
judgment for that of the legislature. Rather, our role is to examine and interpret the
legislative language. And if that language is plain on its face, we are not free to rummage in
the legislative history to change the meaning.
¶25. In summary, Columbia's remedy lies with the legislature. "If a
statute fails to cover a particular situation, and the omission should be cured, the remedy lies
with the legislature, not the courts." Michael T. v. Briggs, 204
Wis. 2d 401, 410, 555 N.W.2d 651 (Ct. App. 1996) (citation omitted).
¶26. We hold that Braverman is entitled to discover this statistical data. We
reverse this portion of the protective order.
2. Report of the Wisconsin Department of Health and
Family Services
¶27. Braverman also sought discovery of the report generated by the Wisconsin
Department of Health and Family Services. This report was the result of Judy Hintzman's
request on behalf of Columbia that the Department review and evaluate Columbia's infection
quality assurance in light of the increase in nosocomial infections following certain types of
surgeries. After applying the Mallon and Franzen
tests, the trial court concluded that the Department's report was privileged. 4
¶28. As noted earlier, we do not read Braverman to dispute the trial court's
determination that the Department qualifies as an "organization" under the
Mallon test or the court's factual findings under the
Franzen methodology. Rather, Braverman's argument is more
fundamental. She contends on a threshold basis that Wis. Stat. §146.38 does not apply
to the Department or the report it issued. Instead, Braverman says that other statutes which
speak specifically to the Department govern the question of whether she may discover the
Department's report.
¶29. Wisconsin Stat. §15.19 creates the Department. Wisconsin Stat.
§250.03 assigns certain responsibilities to the Department. Wisconsin Stat.
§250.04(1) confers authority on the Department to "investigate the cause and
circumstances of any special or unusual disease." Section 250.04(3)(b) says that the
Department "shall analyze occurrences, trends and patterns of acute, communicable or
chronic diseases ... and distribute information based on the analyses."
(Emphasis added.) Braverman contends that these statutes collectively, and
§250.04(3)(b) in particular, demonstrate that the records of the Department are subject
to disclosure. Braverman also contends that by utilizing the services of the Department, a
public entity, Columbia should have expected that the results of any investigation by the
Department would be subject to disclosure.5
¶30. This issue requires us to decide which law applies to the Department's
report-the privilege provisions of Wis. Stat. §146.38 or the relevant provisions of Wis.
Stat. ch. 250. We conclude that §146.38 is the controlling statute because it is the
more specific in this setting. "Where a general statute conflicts with a specific statute,
the specific statute prevails." Landis, 2000 WI
App 164 at ¶16. While the relevant provisions of ch. 250 recite the responsibilities
and authority of the Department, they do not speak to a situation where the Department is
invited by a health care provider to assist in a quality assurance review under §146.38.
Nor do any of the relevant statutes in ch. 250 address any privilege implications resulting
from such assistance.6
¶31. Instead, those matters are specifically addressed in Wis. Stat.
§146.38. That statute clearly envisions entities beyond the health care provider itself
participating in the review and evaluation process. Section 146.38(1m) says, "No
person who participates in the review or evaluation of the services of health care providers or
facilities or charges for such services may disclose any information acquired in connection
with such review or evaluation except as provided in sub. (3)." The language
"[n]o person" is extremely broad and would certainly include an agency such as
the Department. And the language contemplating "charges for such services"
additionally reveals that the legislature anticipated outside entities assisting in the review or
evaluation. Finally, we note that §146.38 does not contain any language suggesting
that the statute does not govern the Department or any other state agency.
¶32. In summary, we conclude that Wis. Stat. §146.38 is the specific
statute that applies under the facts of this case. We affirm the trial court's ruling that
Braverman was not entitled to discover the Department's report.
3. In Camera Inspection
¶33. Braverman argues that the trial court was obligated to conduct an in
camera inspection of the materials she sought. Braverman contends that the trial court
cannot perform a meaningful Franzen analysis absent such an inspection.
A request to conduct an in camera inspection is addressed to the trial court's discretion.
Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 302-03, 441
N.W.2d 255 (Ct. App. 1989).
¶34. Braverman first argues that both Moroney and
Franzen mandate an in camera inspection. True, the
Moroney court upheld the trial court's directive that the chairperson of the
Wisconsin Patients Compensation Panel review certain of the records in camera to determine
whether the materials were privileged. Moroney, 123 Wis. 2d at 100-01.
However, unlike this case, the health care provider in Moroney did not
claim that the discovery request facially supported the privilege. Id. at
101. Rather, the health care provider's argument was that the panel chairperson, who also
served as a member of the panel, would be prejudiced by exposure to material that ultimately
might be ruled inadmissible. Id. The court of appeals rejected that
argument. In short, the argument made by Braverman in this case was not before the court
in Moroney.
¶35. Nor was Braverman's argument before the court in
Franzen. There, the trial court had conducted an in camera inspection.
Franzen, 169 Wis. 2d at 374. After the court of appeals analyzed Wis.
Stat. §146.38 and set out the methodology for a trial court to follow when addressing a
privilege question under the statute, the court of appeals directed the trial court to resume
that procedure on remand. Franzen, 169 Wis. 2d at 384. However, the
court of appeals did not announce that an in camera inspection was essential to the analysis in
every instance. More importantly, the methodology set out by the
Franzen court does not mention an in camera procedure.
Franzen does not support Braverman's argument.
¶36. Instead, the controlling case on this issue is Ollman v. Health Care
Liability Insurance Plan, 178 Wis. 2d 648, 505 N.W.2d 399 (Ct. App. 1993).
There, the plaintiff sought to discover a letter reciting the conclusions of the board of inquiry
that had conducted an inquiry under Wis. Stat. §146.38. Ollman,
178 Wis. 2d at 667-68. The court acknowledged that "where discovery requests `do
not, on their face, request materials and information which fall under the protection of sec.
146.38,' but the party upon whom the discovery request was made, nonetheless, objects to
producing the document, an in camera inspection of the document should be
utilized to sort out privileged materials." Ollman, 178 Wis. 2d at
669-70 (citation omitted). However, the court went on to say that where the discovery
request, "on its face," seeks information that is clearly protected by
§146.38, the trial court is not required to conduct an in camera inspection.
Ollman, 178 Wis. 2d at 670. Because the discovery request on its face
sought the conclusions of the board of inquiry, the court held that the letter was privileged
under §146.38. Ollman, 178 Wis. 2d at 670.
¶37. Therefore, under Ollman, our focus is on the materials
sought in Braverman's discovery request. As described by the trial court, Braverman sought:
"(1) infection control materials, including meeting minutes, infection
rates,7 and the results of any
investigations conducted by quality assurance/peer review committees; (2) reports and/or
evaluations of the Joint Commission on Hospital Accreditation; and (3) information derived
from a quality assurance investigation conducted in association with the Wisconsin
Department of Health." On their face, these discovery requests sought the
"record of [Columbia's] investigations, inquiries, proceedings and conclusions"
under Wis. Stat. §146.38(2).
¶38. Braverman's argument that only an in camera inspection by the trial court
will assure a meaningful Franzen analysis leap frogs the first level of the
inquiry under Ollman-whether the discovery request is facially sufficient
to support the opposing party's invocation of the privilege. Ollman, 178
Wis. 2d at 670. Instead, Braverman would shift the initial burden to the trial court to sift
and winnow through the material sought. We reject that approach. While the burden to
demonstrate a privilege is on the party asserting it, id., the burden to
frame a proper discovery demand logically lies with the party making such demand.
¶39. Our holding does not leave Braverman without a meaningful ability to
conduct discovery. This is because Wis. Stat. §146.38(2) allows discovery of evidence
that is not subject to the privilege conferred by the statute:
No such record may be used in any
civil action for personal injuries against the health care provider or facility; however,
information, documents or records presented during the review or evaluation may not be
construed as immune from discovery under s. 804.10(4) or use in any civil action merely
because they were so presented. (Emphasis added.)
Braverman should have worded
her discovery requests to target this material. Instead, she filed discovery requests that
invaded the privilege of §146.38, and, as a result, she seeks to burden the trial court
with the task of ferreting out what is privileged and what is not. Braverman has the cart
before the horse. Her obligation was to make a discovery request which did not facially
establish Columbia's privilege. Had she filed a proper request, and if Columbia still claimed
privilege, then the trial court may well have been required to conduct an in camera
review.8
¶40. We hold that the trial court did not err in the exercise of its discretion
when it chose not to conduct an in camera inspection of the materials sought by Braverman.
CONCLUSION
¶41. We reverse that portion of the protective order that barred Braverman
from discovering Columbia's statistical reports of infection rates. We affirm that portion of
the protective order that barred Braverman from discovering the report furnished by the
Wisconsin Department of Health and Family Services. We affirm the trial court's rejection
of Braverman's request that the court conduct an in camera inspection of the materials sought
by Braverman.
¶42. Costs are not awarded.
By the Court.-Order affirmed in part; reversed in part and cause
remanded.
Recommended for publication in the official reports.
1 Braverman's original and amended complaints named additional defendants. However, the
issues on appeal concern only Columbia, its liability insurer and the Wisconsin Patients
Compensation Fund.
2 All references to the Wisconsin Statutes are to the 1999-2000 version.
3 Wisconsin Stat. §146.38 reads in part as follows:
(1m) No person who
participates in the review or evaluation of the services of health care providers or facilities or
charges for such services may disclose any information acquired in connection with such
review or evaluation except as provided in sub. (3).
(2) All organizations or evaluators reviewing or evaluating the
services of health care providers shall keep a record of their investigations, inquiries,
proceedings and conclusions. No such record may be released to any person under s.
804.10(4) or otherwise except as provided in sub. (3). No such record may be used in any
civil action for personal injuries against the health care provider or facility; however,
information, documents or records presented during the review or evaluation may not be
construed as immune from discovery under s. 804.10(4) or use in any civil action merely
because they were so presented. Any person who testifies during or participates in the
review or evaluation may testify in any civil action as to matters within his or her
knowledge, but may not testify as to information obtained through his or her participation in
the review or evaluation, nor as to any conclusion of such review or evaluation.
(3) Information acquired in connection with the review and evaluation
of health care services shall be disclosed and records of such review and evaluation shall be
released, with the identity of any patient whose treatment is reviewed being withheld unless
the patient has granted permission to disclose identity, in the following circumstances:
....
(d) In a report in a statistical form. The report may identify any provider or
facility to which the statistics
relate[.]
4 Despite the trial court's ruling, Braverman nonetheless obtained a copy of the report
directly from the Department. Therefore, it may be that this issue is moot. Nonetheless, we
choose to answer the issue on the merits because our discussion, although limited to
discovery, may have some bearing on the admissibility of the report at the trial.
5 Braverman also cites to the Open Records Law, Chapter 19, Subchapter II in support of
her argument.
6 The closest that Wis. Stat. ch. 250 comes to this topic is Wis. Stat. §250.04(6)
which authorizes the Department to "provide consultation, technical assistance and
training regarding public health to local health departments, community organizations
and others." (Emphasis added.) But this statute is silent as to
privilege.
7 We have previously held in this opinion that Braverman is entitled to discover Columbia's
statistical reports regarding the infection rates under the exemption created in Wis. Stat.
§146.38(3)(d).
8 Although not germane to this case, we observe that Wis. Stat. §146.38(2) also
provides that "[a]ny person who testifies during or participates in the review or
evaluation may testify in any civil action as to matters within his or her knowledge, but may
not testify as to information obtained through his or her participation in the review or
evaluation, nor as to any conclusion of such review or evaluation." This preserves
Braverman's ability to obtain the testimony, by deposition or otherwise, of persons who have
relevant testimony on her claim. Besides the "escape hatches" of §146.38,
Braverman also has all of the other conventional discovery tools available to her.