In Re Paternity of JSP

461 N.W.2d 794, 158 Wis. 2d 100
CourtCourt of Appeals of Wisconsin
DecidedSeptember 5, 1990
Docket89-1997
StatusPublished

This text of 461 N.W.2d 794 (In Re Paternity of JSP) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Paternity of JSP, 461 N.W.2d 794, 158 Wis. 2d 100 (Wis. Ct. App. 1990).

Opinion

158 Wis.2d 100 (1990)
461 N.W.2d 794

IN RE the PATERNITY OF J.S.P.: FAMILY PLANNING HEALTH SERVICES, INC., Appellant-Cross Respondent,
v.
T.G., Respondent-Cross Appellant.

No. 89-1997.

Court of Appeals of Wisconsin.

Submitted on briefs May 22, 1990.
Decided September 5, 1990.

*103 On behalf of appellant-cross respondent, the cause was submitted on the brief of Debra L. Hayes of Mallery & Zimmerman, S.C. of Wausau.

On behalf of respondent-cross appellant, the cause was submitted on the brief of Peter C. Gunther of Crooks, Low & Connell, S.C. of Wausau.

*104 Before Cane, P.J., LaRocque and Myse, JJ.

LaROCQUE, J.

Family Planning Health Services, Inc. appeals a court order compelling it to produce documents relating to G.P.'s pregnancy at the preliminary hearing in an action to determine the paternity of her child. The alleged father, T.G., seeks all of the clinic records for a two-year period that could include notes that relate to sexual relations with other males. Family Planning argues that statements of the patient concerning her sexual behavior are not discoverable because they are privileged communications under sec. 905.04(2), Stats., and that the two-year period for which records are sought is too broad. The trial court found that the challenged records are excepted from the privilege by sec. 905.04(4)(g) as "testimony about the medical circumstances of a pregnancy" in a paternity hearing. We uphold the order refusing to quash the subpoena duces tecum, but direct the circuit court to modify the language therein to prohibit solicitation of information relating to the sexual relations of the mother occurring at any time other than the probable time of conception, as required by sec. 767.475(4), Stats. The order is modified and affirmed.

Family Planning is a government-funded, nonprofit corporation that provides reproductive health care services to female patients of financially limited means. G.P. has been a patient at Family Planning since 1980. In December of 1987, G.P. had a pregnancy test at Family Planning. A nurse gave her the positive test results, counseled her on prenatal care and instructed her to contact her personal physician. G.P. visited Family Planning on subsequent occasions as a patient, including at least one time after the birth of her child. The child *105 was born on August 14, 1988, and the conceptive period was from October 17, 1987, to December 16, 1987.

G.P. testified at the preliminary hearing that she told the nurse at Family Planning that T.G., her live-in boyfriend at the time, was the child's father. G.P. testified that she also told the nurse that she had sexual intercourse subsequent to the positive pregnancy test with S.D. on December 26, 1987.[1]

Because G.P. is receiving public assistance, the state has initiated an action to determine the paternity of her child. G.P. has accused T.G. of being the father. In his attempt to defend this action, T.G. wants to have a blood sample taken from S.D. In order to do so, or to take a blood sample of any other potential father, T.G. needs to establish probable cause of sexual intercourse between G.P. and another during the possible conceptive time. See sec. 767.48, Stats.[2]

T.G. subpoenaed Lon Newman, the director of Family Planning, to produce all documents in the clinic's possession relating to the mother beginning one month prior to the conceptive period through the date of the *106 court order; specifically, from September 17, 1987, to October 17, 1989.[3]

Family Planning claims that some of the documents requested are privileged by sec. 905.04(2), Stats.[4] The trial court inspected the documents in camera and concluded that documents entitled "Progress Notes" were subject to the subpoena because they concerned the history of G.P.'s pregnancy and were thus excepted from the privilege by sec. 905.04(4)(g).[5] The trial court stayed disclosure of these records pending appeal.

[1-3]

T.G. first argues that Family Planning lacks standing to appeal the trial court order because it was not a named party in the lawsuit. The law of standing is to be liberally construed. Bence v. City of Milwaukee, 107 Wis. 2d 469, 478, 320 N.W.2d 199, 203 (1982). "A right to appeal from a judgment or order . . . is confined to parties aggrieved in some appreciable manner by the court *107 action." Tierney v. Lacenski, 114 Wis. 2d 298, 302, 338 N.W.2d 522, 524 (Ct. App. 1983). A person may be an aggrieved party even though he or she is not a named party to the suit if he or she has a substantial interest adverse to the judgment or order. Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 218, 418 N.W.2d 14, 15 (Ct. App. 1987). Family Planning is aggrieved by the fact that it is being compelled to bring otherwise confidential records to court, and confidentiality is a key part of Family Planning's services. We therefore conclude that Family Planning has standing to appeal the court's order.

Family Planning contends that the trial court erred by ordering it to produce some of G.P.'s records because they are privileged by sec. 905.04(2), Stats. Family Planning argues that by finding that the records fall within the sec. 905.04(4)(g) exception to the privilege, the trial court erred in two ways: first, by concluding that the history of G.P.'s pregnancy is a "medical circumstance[ ] of a pregnancy," and, second, by ordering the disclosure of records outside the conceptive period.

[4-6]

The issue here is one of statutory construction. Interpretation of a statute presents a question of law that we review de novo. Sturgis v. Town of Neenah Bd. of Canvassers, 153 Wis. 2d 193, 198, 450 N.W.2d 481, 483 (Ct. App. 1989). We must give effect to the legislature's intent. We ascertain that intent by looking to the language of the statute itself. Id. Only if the statutory language is ambiguous are we permitted to look beyond the language of the statute and examine the scope, history, content, subject matter and object of the statute to discern legislative intent. State v. Pham, 137 Wis. 2d 31, 34, 403 N.W.2d 35, 36 (1987).

*108 [7, 8]

A statute, or a portion of it, is ambiguous if reasonable persons can disagree as to its meaning, Hemerley v. American Family Mut. Ins. Co., 127 Wis. 2d 304, 307, 379 N.W.2d 860, 862 (Ct. App. 1985), or if it is capable of being understood by a reasonable person in more than one way. Sturgis, 153 Wis.2d at 198, 450 N.W.2d at 483. The phrase "medical circumstances of a pregnancy," set out in sec. 905.04(4)(g), Stats., is not precise and is subject to more than one interpretation. Accordingly, we hold that it is ambiguous.

[9, 10]

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Family Planning Health Services, Inc. v. T.G.
461 N.W.2d 794 (Court of Appeals of Wisconsin, 1990)

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Bluebook (online)
461 N.W.2d 794, 158 Wis. 2d 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-jsp-wisctapp-1990.