2023 Wisconsin Statutes & Annotations
Chapter 146 - Miscellaneous health provisions.
146.84 - Violations related to patient health care records.

146.84 Violations related to patient health care records.

(1) Actions for violations; damages; injunction.

(a) A custodian of records incurs no liability under par. (bm) for the release of records in accordance with s. 146.82 or 146.83 while acting in good faith.

(b) Any person, including the state or any political subdivision of the state, who violates s. 146.82 or 146.83 in a manner that is knowing and willful shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $25,000 and costs and reasonable actual attorney fees.

(bm) Any person, including the state or any political subdivision of the state, who negligently violates s. 146.82 or 146.83 shall be liable to any person injured as a result of the violation for actual damages to that person, exemplary damages of not more than $1,000 and costs and reasonable actual attorney fees.

(c) An individual may bring an action to enjoin any violation of s. 146.82 or 146.83 or to compel compliance with s. 146.82 or 146.83 and may, in the same action, seek damages as provided in this subsection.

(2) Penalties.

(a) Whoever does any of the following may be fined not more than $25,000 or imprisoned for not more than 9 months or both:

1. Requests or obtains confidential information under s. 146.82 or 146.83 (1c) or (3f) under false pretenses.

2. Discloses confidential information with knowledge that the disclosure is unlawful and is not reasonably necessary to protect another from harm.

3. Violates s. 146.83 (4).

(b) Whoever negligently discloses confidential information in violation of s. 146.82 is subject to a forfeiture of not more than $1,000 for each violation.

(c) Whoever intentionally discloses confidential information in violation of s. 146.82, knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $100,000 or imprisoned not more than 3 years and 6 months, or both.

(3) Discipline of employees. Any person employed by the state or any political subdivision of the state who violates s. 146.82 or 146.83, except a health care provider that negligently violates s. 153.50 (6) (c), may be discharged or suspended without pay.

(4) Exceptions. This section does not apply to any of the following:

(a) Violations by a nursing facility, as defined under s. 49.498 (1) (i), of the right of a resident of the nursing facility to confidentiality of his or her patient health care records.

(b) Violations by a nursing home, as defined under s. 50.01 (3), of the right of a resident of the nursing home to confidentiality of his or her patient health care records.

History: 1991 a. 39; 1993 a. 445; 1999 a. 9, 79; 2009 a. 28; 2011 a. 32.

Sub. (1) (b) does not preclude certification of a class action in a suit to recover unreasonable fees charged for copies of health care records. Cruz v. All Saints Healthcare System, Inc., 2001 WI App 67, 242 Wis. 2d 432, 625 N.W.2d 344, 00-1473.

Sub. (1) (c) specifies that only “an individual" may sue to enjoin a violation of s. 146.82 or 146.83. Not only do the provisions in ss. 146.82 to 146.84 not create a right to enjoin the planned release of records for entities such as the plaintiff business trade associations' member businesses, they expressly exclude them from that right by categorically identifying who may be a potential plaintiff. Wisconsin Manufacturers & Commerce v. Evers, 2021 WI App 35, 398 Wis. 2d 165, 960 N.W.2d 442, 20-2081.

Affirmed on other grounds. 2022 WI 38, 401 Wis. 2d 699, 974 N.W.2d 753, 20-2081.

Sub. (1) (b) provides that “any person" may be held liable for knowingly and willfully violating the provisions of s. 146.83. However, the text of s. 146.83 (3f) (b) regulates only those charges made by health care providers. Therefore, only a health care provider that charges more than the fees permissible under s. 146.83 (3f) (b) would fall within the parameters of both sub. (1) (b) and s. 146.83 (3f) (b). Although sub. (1) (b) refers to “any person," it is not an enforcement mechanism solely for s. 146.83. It also relates to violations of other statutes. Townsend v. ChartSwap, LLC, 2021 WI 86, 399 Wis. 2d 599, 967 N.W.2d 21, 19-2034.

Wisconsin courts have applied the two-year limitations period under s. 893.93 (2) (a) to actions that principally benefit the public at large, a “statute penalty," and the six-year limitations period under s. 893.93 (1) (a) to actions that principally benefit the plaintiff at issue. Because a claim under s. 146.83 (3f) (b) is primarily private in nature and does not result in a statute penalty for the public's benefit, the six-year limitations period of s. 893.93 (1) (a) applies. Although sub. (1) (b) and (bm) authorize exemplary damages, what matters is who, on balance, the cause of action benefits—the private individual or the general public. Smith v. RecordQuest, LLC, 989 F.3d 513 (2021).