02-2933 Hart v. Bennet and Family & Children’s Center, Inc.

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This is so because the abuse program coordinator was not working under the supervision of a health care provider and the letter was not “related to the health of a patient.”

“Construing Wis. Stat. § 146.81(1)(j) to mean a corporation that has shareholders who are providers as listed in paras. (a) to (hp), we conclude that, based on the undisputed facts, the Center is not such a corporation. From the name of the Center-‘Family & Children’s Center, Inc.’ — the only reasonable inference is that it is not a service corporation because it does not contain the designations required by law. See Wis. Stat. § 180.1907. Accordingly, the September 18 letter Bennet wrote is not a ‘a patient health care record’ under § 146.81(4) because Bennet is not a health care provider within the meaning of § 146.81(1), and he was not supervised in the preparation of that letter by a health care provider. This conclusion makes it unnecessary to decide whether that letter meets other requirements of the definition of ‘patient health care record.’ The trial court therefore properly dismissed the claim for a violation of Wis. Stat. § 146.82.”

However, we conclude that the trial court erred in dismissing plaintiff’s defamation and professional negligence actions against defendant.

“The complaint adequately states a claim for defamation based on Bennet’s repeating Eley’s [plaintiff’s girlfriend’s] statements to others. The complaint (1) attaches the September 18 letter, sets forth the specific statements in the September 18 letter that Hart is complaining about and alleges they are false; (2) alleges that Bennet sent the letter to the persons named at the end of the letter, including Zellmer [the administrator of the university’s physician assistant program]; and (3) alleges that those statements were not privileged and harmed his reputation. One can readily conclude that the specified statements meet the definition of defamatory in that they would ‘tend[] to harm one’s reputation.’ … It is evident from the complaint and attached letter that Hart is claiming that Bennet is liable to him because he repeated Eley’s statements to others by sending the letter to persons other than Hart. There is no requirement that Hart specifically allege that Bennet is liable because he ‘repeated’ or ‘republished’ Eley’s statements, as the trial court apparently thought….

“Because it is not a defense that Bennet accurately repeated Eley’s statements, the trial court erred in ruling the defendants were entitled on this ground to summary judgment on the defamation claim.”

And, where plaintiff averred that he had undergone counseling and therapy apart from participating in the men’s abuse program because of the “confusion, disillusionment and therapist-patient trust cause by [defendant’s] betrayal of confidence” in publishing the letter, we agree with plaintiff that this affidavit creates a disputed issue of fact on whether he incurred damages as a result of the coordinator’s copying of the letter to the university program administrator and defendants were not, therefore, entitled to summary judgment on the professional negligence claim.

“With respect to the negligence claim, the complaint alleges: (1) Bennet was a practicing professional psychologist, who, although not licensed by the state, possessed the education, knowledge, and experience generally required of all practicing professional psychologists; (2) as a practicing professional psychologist, he had a duty in counseling Hart to exercise the degree of care, skill, and judgment that reasonable psychologists would exercise; (3) he breached this duty by relating, in the September 18 letter, confidential therapist/patient information to third parties without the client’s consent; and (4) Hart was damaged as a result in that he suffered emotional harm requiring psychotherapy and the UW-La Crosse appeal proceedings were disrupted, resulting in additional legal expenses.

“It is not self-evident that Bennet does not have the duty alleged in the complaint solely because he is not a health care provider within the definition of Wis. Stat. § 146.81(1); nor is it self-evident that the September 18 letter does not contain confidential information solely because it does not meet the definition of patient health care record in § 146.81(4). Because the defendants do not develop these arguments, we conclude they are not entitled to summary judgment on these grounds.”

Affirmed in part, reversed in part and cause remanded with directions.

Recommended for publication in the official reports.

Dist IV, La Crosse County, Mulroy, J., Vergeront, J.

Attorneys:

For Appellant: Jeffrey C. Mochalski, Holmen

For Respondent: Barrett J. Corneille, Madison; Michael Patrick Obert Jr., Madison