The trial court's reliance on Hungerford was misplaced because this TPR proceeding does not include a legal "proceeding for hospitalization" and is distinct from Joseph's criminal conviction and sentence. The interpretation of State v. Hungerford, 84 Wis.2d 236, 267 N.W.2d 258 (1978), that we apply above was set out in Milwaukee County v. K.S., 137 Wis.2d 570, 405 N.W.2d 78 (1987). There, the court concluded that the county's earlier psychological evaluation of K.S. could not be admitted in a later placement proceeding.
The statute and case law clearly dictate that placement in an individual's home falls within the meaning of the term "residential care." See § 55.06(9)(a), STATS. (home placements are one option); see alsoMilwaukee County Protective Servs.Management Team v. K.S., 137 Wis.2d 570, 576-77, 405 N.W.2d 78, 81 (1987) (subject's home may be proper location for protective placement). Based on this law and the undisputed facts, the trial courts reasoned that a protective placement order for each woman was appropriate.
The patient's intent to disclose confidential information is crucial in determining whether a valid privilege exists. In re K.S., 137 Wis.2d 570, 575-76, 405 N.W.2d 78, 80-81 (1987); see also Cabrera v. Cabrera, 580 A.2d 1227, 1234 (Conn. 1990); State v. Ortega, 817 P.2d 1196, 1214 (N.M. 1991).
ndition as an element of his claim or defense"; holding a party's "denial of allegations of mental instability does not operate as a waiver of the patient-psychotherapist privilege"); Pritchard, 547 N.E.2d at 1287-88 (statute allowing disclosure when patient "introduces his mental condition . . . as an element of his claim or defense" interpreted as requiring patient to affirmatively place communication at issue); State v. George, 223 Kan. 507, 575 P.2d 511, 517 (1978) (same statutory language as Iowa; holding not guilty plea does not place condition of patient at issue); Merhige v. Gubbles, 657 So.2d 1098, 1101 (La.App. 1995) (statute allowing disclosure when patient "relies upon condition as an element of his claim or defense"; held answer not sufficient to place health at issue); Shamburger v. Behrens, 380 N.W.2d 659, 662 (S.D. 1986) (statute waives privilege when patient "relies upon the condition as an element of his claim or defense"; held simple denial did not waive privilege); In re K.S., 137 Wis.2d 570, 405 N.W.2d 78, 82 (1987) (statute waives privilege when patient "relies upon the condition as an element of his claim or defense"; held not waived by objecting to guardianship proceedings); see Carlton v. Superior Ct., 261 Cal.App.2d 282, 67 Cal.Rptr. 568, 573 (1968) (defendant's denial of plaintiff's allegation that defendant was intoxicated at time of accident is not a "tender" of that issue so as to abrogate the physician-patient privilege under California statute); Muller v. Rogers, 534 N.W.2d 724, 726 (Minn.App. 1995) ("A straightforward denial of liability by a defendant does not constitute a waiver of medical privilege."); McCormick on Evidence § 103, at 385 ("With respect to defenses, a distinction is clearly to be seen between the allegation of a physical or mental condition, which will effect the waiver, and the mere denial of such a condition asserted by the adversary, which will not."). Any other interpretation of the patient-litigant exception would severely undermine the purpose of the statutor
According to Black, the volatile nature of M.R.R.'s behavior made it impossible for him to safely live independently. See Milwaukee Cty. Protective Servs. Mgmt. Team v. K.S. , 137 Wis. 2d 570, 405 N.W.2d 78 (1987) ("A protective placement is a placement for the primary purpose of providing residential care and custody, to protect persons who lack the capacity to protect themselves. Protective placement may result from a mere inability to live independently in the community.
See id., ¶ 2 (addressing when a person has a primary need for “residential ... custody” under Wis. Stat. § 55.08(1)(a)). In fact, the supreme court has held that “[p]rotective placement may result from a mere inability to live independently in the community,” Milwaukee Cnty. Prot. Servs. Mgmt. Team v. K.S., 137 Wis.2d 570, 576, 405 N.W.2d 78 (1987), and this court is bound by that holding. See Cook v. Cook, 208 Wis.2d 166, 189–90, 560 N.W.2d 246 (1997) (the court of appeals may not overrule, modify or withdraw language from a previous supreme court case).
¶15 While we agree the evidence shows Gregory is able to perform most daily living activities with little or no assistance, Susan H. does not stand for the proposition that an individual needs to be completely dependent on others for all aspects of daily living in order for the individual to be protectively placed. See, e.g., Milwaukee Cnty. Prot. Servs. Mgmt. Team v. K.S., 137 Wis. 2d 570, 576, 405 N.W.2d 78 (1987) ("Protective placement may result from a mere inability to live independently in the community."). ¶16 Here, Altepeter specifically opined that, in his expert opinion, Gregory has a primary need for residential care and custody.
This presents a question of law. In re K.S., 137 Wis.2d 570, 574, 405 N.W.2d 78, 80 (1987). If the language of the statute is ambiguous, we examine the scope, history, context, subject matter and object of the statute to discern the legislative intent.
Statutory construction presents a question of law which we review without deference to any ruling by the lower court. In re K.S., 137 Wis.2d 570, 574, 405 N.W.2d 78, 80 (1987). Section 767.265(1), Stats., provides: