A Primer for Wisconsin Healthcare Providers Regarding Testimony in Criminal Cases

Most healthcare providers are well-versed in mandatory reporting requirements regarding abuse, neglect, and domestic violence.  Similarly, most healthcare providers are well aware of their ability to provide information to law enforcement officers in emergency health care situations.  Less frequently, a healthcare provider may find himself or herself subpoenaed to be a fact witness in a criminal case.  It is worthwhile for any healthcare provider to be aware of the practical and legal issues involved in being a courtroom witness.

How do Rules About Privacy and Confidentiality Impact my Ability to Testify?

State and federal law both impact the ability of a healthcare provider to testify in court.  At the federal level, the most significant law is the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) issued by the U.S. Department of Health and Human Services to implement the requirement of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).[1]  Generally, the Privacy Rule prohibits the use of disclosure of protected health information by covered entities except in two circumstances: (i) pursuant to a written authorization from the affected individual (or the individual’s personal representative); or, (ii) as the Privacy Rule permits or requires.[2]

Ideally – for the healthcare provider – a crime victim will execute a written authorization that will clearly allow the healthcare provider to speak with attorneys and investigators leading up to trial.  The Privacy Rule, however does not require a healthcare provider to voluntarily speak with an attorney or investigator (as opposed to appearing in court to testify in response to a valid subpoena).  (Nor does Wisconsin Law require any fact witness to submit to voluntary pre-trial meetings). Another factor to consider under Privacy Rule is the validity of another person’s authority to authorize the release of or access to another individual’s protected health information.  In certain circumstances, a healthcare provider may be barred by state law or the provider’s determination under the Privacy Rule to allow someone to act as a personal representative for the disclosure of protected health information.[3]

In the absence of a written authorization, permitted disclosures may occur in the course of judicial and administrative proceedings, [4] as well as in response to law enforcement requests.[5]  In each circumstance, however, the Privacy Rule places requirements on the covered entity to make sure that the party seeking the protected health information complies with certain actions or representations under the Privacy Rule.

Although in general the Privacy Rule preempts state law, [6] the Privacy Rule also allows states like Wisconsin to create more stringent privacy protections  and additional requirements regarding the disclosure of protected health information.[7]  In general, the Wisconsin Statutes do not drastically impact the ability of a healthcare provider to testify in court.  Sections 146.82 to 146.836 of the Wisconsin Statutes spell out Wisconsin-specific details the duties of mandatory reporters to share information and also discuss the limitations on certain people to act as personal representatives and authorize disclosure of protected health information.  Chapter 51 of the Wisconsin Statutes also contains additional limitations on the ability of parents of children 14 and older to obtain access to those records or to consent to the disclosure, depending upon the child’s wishes.[8]

One final legal matter to consider is the evidentiary privilege available to a patient under Wis. Stat. § 905.04 to:

Refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient’s physical, mental or emotional condition, among the patient, the patient’s physician, the patient’s podiatrist, the patient’s registered nurse, the patient’s chiropractor, the patient’s psychologist, the patient’s social worker, the patient’s marriage and family therapist, the patient’s professional counselor or persons, including members of the patient’s family, who are participating in the diagnosis or treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.[9]

This privilege belongs to the patient but the healthcare provider may claim it on behalf of the patient.  The authority for a healthcare provider to claim this privilege is presumed in the absence of contrary evidence.[10]  This evidentiary rule contains several exceptions to the general rule, most notably in cases involving crimes against children and homicides.

Isn’t There a Law in Wisconsin That Says Healthcare Providers Cannot be Compelled to be Witnesses?

Wisconsin healthcare providers enjoy a qualified privilege that allows them to refuse to provide expert testimony. This is commonly called the “Alt privilege,” based upon the case in which the Wisconsin Supreme Court adopted this privilege.[11]  Alt essentially stands for the proposition that – without compelling circumstances – a person cannot be compelled to give expert testimony. Alt does not bar anyone from being compelled to give factual testimony about his or actions or observations.  Assuming that a healthcare provider has relevant factual testimony about things he or she saw heard, or did, that healthcare provider must comply with a subpoena to testify.

Do I Have to Testify in Person?

Most people do not like having to testify in court, based upon the disruption to their lives, the stress of being asked questions by attorneys, or both.  In criminal cases, a criminal defendant has a right under the United States and Wisconsin Constitutions to confront witnesses in court.[12]  Certain exceptions, however, apply to this rule and, on occasion, certified healthcare records may be admitted into evidence without anyone testifying.[13]  It is worth asking an attorney who issues a subpoena to a healthcare provider if his or her testimony is really necessary or if records alone could be used to establish the evidentiary point the attorney is trying to make.

Do I Have to Talk to the Prosecutor or Defense Attorney Before the Trial?

As indicated above, no witness needs to speak with a prosecutor or defense attorney prior to testifying in court.  As a practical matter – assuming that there are no confidentiality restrictions – pre-trial contact can be useful if for no other reason than to establish whether a healthcare provider’s testimony is necessary and to communicate about when a witness actually needs to appear to testify.  Occasionally, attorneys issue subpoenas for multiple days and, occasionally, attorneys may subpoena anyone involved in a patient’s care without actually scrutinizing what each provider actually did, saw, heard, or can testify about. Communicating ahead of time may reduce the provider’s time on the witness stand by educating the attorney issuing the subpoena about what relevant testimony the provider has (or has not).  It can also alert the provider to issues he or she may be asked about so that the provider can be ready to clearly and coherently respond to questions.  Finally, a healthcare provider may want to ask whether he or she will be asked to review any documents or testify about documents on the witness stand.  Anything a witness reviews in preparation for testifying likely needs to be turned over to the attorney who will cross-examine the witness.[14]  Therefore, it is preferable that a witness ask the attorney who is calling the witness to provide records that the witness should review prior to trial to the witness, even if the witness could access those records himself or herself.

There is no requirement that a provider agree to meet with or communicate with both the prosecutor and the defense attorney.  If the provider chooses to only meet with the prosecutor, or vice versa, that is fine.  Be aware that any discussions the healthcare provider has with attorneys who do not represent that provider are not privileged and the provider can be required to answer questions about those discussions.

Any Tips on Testifying?

When called to testify, a witness will be placed under oath and asked to sit in the front of the courtroom near the judge and – if there is one – the jury.  Regardless of whether a witness has met with the attorney calling him or her, the witness is expected to abide by any court rulings that may limit the witness’ testimony.  These rulings may require the witness to not discuss certain observations or statements, or to refrain from disclosing certain information even if that information is responsive to a question the witness is asked.  Occasionally, a judge may have ruled that certain words could not be used during a trial.[15]  The attorney calling the witness should clearly indicate those rulings to the witness, but – if the attorney does not do so – the witness should ask the attorney to identify and explain any rulings before the witness enters the courtroom.

Rule Number One of being a witness is, “Tell the truth.”  Following Rule Number One, remember to listen carefully to the questions as they are asked, and to respond to the questions that are asked.  It is not uncommon for a witness to be asked a question that an attorney things calls for a yes or no answer, and that the witness thinks requires an explanation.  The witness should do his or her best to provide truthful and accurate testimony in response to these questions, but, at some level, the adversary legal system may limit the witness’ ability to fully explain his or her answer.  If a witness does not understand a question or did not hear the entirety of a question, it is acceptable for a witness to indicate the lack of understanding or to ask an attorney to repeat the question.

It is the duty of the trial judge to control the mode of interrogation in the courtroom.  If an attorney is inappropriately questioning a witness, i.e., engaging in repetitive question, being overly argumentative, asking unintelligible questions, the judge may intervene and direct the attorney to change his or her conduct.[16] The judge may also choose to question a witness as well either to elicit additional information or to resolve a subject and move on.[17]  Finally, the judge will rule upon objections made regarding questions asked of a witness as well as requests to strike portions of a witness’ testimony.[18]  If an objection is made during the course of questioning, a witness should not answer the question unless the judge overrules the objection, or otherwise directs the witness to answer. If uncertain, it is acceptable for a witness to ask a judge if he or she should answer the question.

A witness may sometime leave the witness stand feeling as if he or she did poorly because of something about which the witness was not able to testify, either based upon a judge’s ruling or the failure of the attorneys to ask appropriate questions.  Fundamentally, it is the duty of the attorneys – not the witness – to determine how to best present the witness’ testimony based upon the facts of the case and legal standards.

Do I Need my Own Attorney?

If a healthcare provider receives a subpoena or request to testify in a criminal case, it is prudent to alert the provider’s entity’s legal counsel or risk management professional.  If the entity determines an outside attorney is necessary, many malpractice insurance policies contain coverage for events like these.  An attorney can help protect the healthcare provider’s legal interests in complying with privacy and confidentiality issues, as well as helping the healthcare provider feel comfortable and prepared to testify.

 


[1] Pub. L. 104-191.

[2] 45 C.F.R. 164.502(a).

[3] 45 C.F.R. 164.502(g).

[4] 45 C.F.R 164.512(e).

[5] 45 C.F.R. 164.512(f).

[6] 45 C.F.R. 164.202

[7] 45 C.F.R. 164.203.

[8] Wis. Stat. § 51.30(50)(b).

[9] Wis. Stat. § 905.04(2).

[10] Wis. Stat. § 905.04(3).

[11] Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999).

[12] U.S. Const., amend. VI; Wis. Const. art. I, § 7.

[13] Wis. Stat. §§ 908.03(4) and (6m), Wis. Stat. § 909.02(11).

[14] Wis. Stat. § 906.12.

[15] The writer is aware of one trial where witnesses were not allowed to identify a substance as blood, but only to refer to it as a “red liquid substance.”

[16] Wis. Stat. § 906.11.

[17] Wis. Stat. § 906.14.

[18] Wis. Stat. § 901.03.

This news update is designed to provide general, educational information on pertinent legal topics, and the statements therein do not constitute legal advice. This news update is not intended to create an attorney-client relationship between you and Corneille Law Group, LLC. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

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