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Recent court decisions impact Wisconsin physicians

Two court decisions in the past two weeks share little in common—except that both will impact physicians and their practices. One strikes down a Wisconsin law that allows a court to take custody over a pregnant women due to fears of the impact of drug or alcohol abuse on an unborn child. The other applies the same limits on the amounts that can be charged to attorneys requesting health care records on behalf of their clients.

Loertscher v. Anderson

In an April 28, 2017 decision, a federal district court found a Wisconsin law allowing a court to take a pregnant woman into custody for the protection of her unborn child under certain circumstances unconstitutional and unenforceable. Referred to as the unborn child protection law, 1997 Wisconsin Act 292 allowed a court to exert jurisdiction over a pregnant woman where it found the woman “habitually lacks self-control” in the use of alcohol or controlled substances, “exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control.” Under the law, a court could mandate treatment or even order the woman’s incarceration. Many, including the Wisconsin Medical Society, contended the law would deter some pregnant women from seeking prenatal care out of fear they would be turned over to Child Protective Services.

The federal court ruled that Act 292 is impermissibly vague as to both the conduct that is prohibited and the degree of risk to the unborn child that warrants taking the expectant mother into custody. According to the Court, the concept of “habitual lack of self-control” is an undefined subjective determination that deprives women of reasonable knowledge of what conduct will result in a loss of liberty over their body. The federal court further found that “current medical science cannot tell us what level of drug or alcohol use will pose a substantial risk of serious damage to an unborn child” to a degree of certainty constitutionally required before depriving a pregnant woman of her physical freedom.

Moya v. Aurora Health Care, Inc.

In a May 4, 2017 decision, the Wisconsin Supreme Court ruled that attorneys authorized by their client in writing to obtain the client’s health care records cannot be charged certification and retrieval fees otherwise allowed under Wisconsin law. Wisconsin law allows health care providers to charge fees, up to statutory limits, for copies of medical records. Certain fees, such as a certification fee and a retrieval fee, cannot be charged if the request is by the patient or “a person authorized by the patient.” The Wisconsin Court of Appeals previously determined that a patient’s personal injury attorney was not a “person authorized by the patient” because the attorney lacked the power to authorize release of the client’s records.

In a 4-1 decision, the Wisconsin Supreme Court reversed the lower court, ruling that an attorney who provides a signed HIPAA-compliant authorization is a “person authorized by the patient” to receive the records, and therefore is exempt from the certification and retrieval fees.

For information about charging for copies of medical records under Wisconsin law, see this July 21, 2016 Medigram article. Watch for further information about charging for copies of medical records under state and federal law in future issues of Medigram.

For more information regarding these cases or the Society’s judicial advocacy efforts, contact Society General Counsel John Rather, JD.

Back to May 11, 2017 Medigram