Johnson v. Misericordia Community Hospital

• Decision Date: 06 January 1981
• Docket Number: No. 79-696,79-696
• Citation: 99 Wis.2d 708,301 N.W.2d 156
• Parties: James JOHNSON, Plaintiff-Respondent, v. MISERICORDIA COMMUNITY HOSPITAL and Employers Mutual Liability Insurance Company of Wisconsin, Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 156

301 N.W.2d 156

99 Wis.2d 708

James JOHNSON, Plaintiff-Respondent, v. MISERICORDIA COMMUNITY HOSPITAL and Employers Mutual Liability Insurance Company of Wisconsin Defendants-Appellants-Petitioners.

No. 79-696.

Supreme Court of Wisconsin.

Argued Nov. 24, 1980.

Decided Jan. 6, 1981.

Law Offices of C. Donald Straub and C. Donald Straub, (argued), Milwaukee, for defendants-appellants-petitioners.

Gerald J. Bloch (argued) and Phillips & Bloch, S. C., Milwaukee, for plaintiff-respondent.

COFFEY, Justice.

This is a review of a decision of the court of appeals ¹ affirming a judgment of the circuit court for Milwaukee County, the HON. JOHN E. McCORMICK presiding. Judgment was entered in favor of the plaintiff-respondent, James Johnson, pursuant to a jury verdict finding the defendant-petitioner, Misericordia Community Hospital (Misericordia), Milwaukee, negligent in granting orthopedic surgical privileges to Dr. Lester V. Salinsky.

This action arose out of a surgical procedure performed at Misericordia by Dr. Salinsky on July 11, 1975, in which he unsuccessfully attempted to remove a pin fragment ² from Johnson's right hip. During the course of this surgery, the plaintiff's common femoral nerve and artery were damaged causing a permanent paralytic condition of his right thigh muscles with resultant atrophy and weakness and loss of function.

About fifteen months thereafter, on October 13, 1976, the plaintiff filed suit alleging that both Dr. Salinsky and Misericordia Community Hospital ³ were negligent. The hospital was negligent:

"(a) by being imprudent and careless in its selection of Lester V. Salinsky as a member of its staff;

"(b) in allowing Lester V. Salinsky to perform orthopedic surgery within its operative facilities when it knew, or should have known, that Lester V. Salinsky was not qualified to perform such diagnostic and operative procedures;

"(c) in failing to investigate the abilities and qualities of Lester V. Salinsky's capabilities in orthopedic care when said hospital knew, or should have known, that he did not possess such proper capability."

Prior to trial, Salinsky and his insurance carrier settled with the plaintiff and were released from the suit with a Pierringer ⁴ type release upon payment of $140,000. Although Salinsky was no longer a party to the action, the question of whether he was negligent in the manner in which he performed the operation on July 11, 1975, remained an issue at trial, as it was incumbent upon the plaintiff to prove that Salinsky was negligent in this respect to establish a causal relation between the hospital's alleged negligence in granting Salinsky orthopedic surgical privileges and Johnson's injuries. ⁵ Further, a determination of Salinsky's causal negligence, if any, was necessary to accomplish a proper allocation of the causal negligence between the two alleged joint tortfeasors, Salinsky and Misericordia. ⁶

At trial, undisputed expert testimony established that the surgical procedure utilized by Salinsky in attempting to remove the pin fragment from Johnson's right hip at Misericordia in July of 1975 was not in accord with good orthopedic practice. Accordingly, the jury found that Salinsky was negligent with respect to the medical care and treatment he afforded the plaintiff and attributed twenty percent of the causal negligence to him and eighty percent to the hospital. The jury's finding of negligence on the part of Salinsky has not been challenged on appeal and thus the facts relating thereto are not at issue in this review. Therefore, the only facts material to this review are those connected with Misericordia Hospital in appointing Dr. Salinsky to the medical staff with orthopedic privileges.

The record establishes that Misericordia was formerly known as Misericordia Hospital and operated by the Sisters of Misericordia. In 1969, the Sisters sold the hospital to Drs. John Bryant, Louis Maxey and John Terry who transformed it into a nursing home known as Downtown Nursing Home, Inc. Subsequently, in January of 1971, the Board of Directors reinstituted hospital services at the facility as a state licensed general hospital ⁷ and changed the corporate name to Wisconsin Hospital and Geriatric Treatment Center. During the fall of 1972, all of the nursing home services were discontinued and the name "Misericordia Community Hospital" was adopted. The hospital known as Misericordia Community Hospital was not and has not been accredited by the Joint Commission on Accreditation of Hospitals. ⁸

On March 5, 1973, shortly after Misericordia Community Hospital returned to the status of a general hospital, Dr. Salinsky applied for orthopedic privileges on the medical staff. In his application, Salinsky stated that he was on the active medical staff of Doctors Hospital (Family Hospital), with orthopedic privileges, and held consultant privileges at Northwest General Hospital and New Berlin Community Hospital. He further stated in the application that his privileges at other hospitals had never "been suspended, diminished, revoked, or not renewed." In another part of the application form, he failed to answer any of the questions pertaining to his malpractice insurance, i. e., carrier, policy number, amount of coverage, expiration date, agent, and represented that he had requested privileges only for those surgical procedures in which he was qualified by certification.

In addition to requiring the above information, the application provided that significant misstatements or omissions would be a cause for denial of appointment. Also, in the application, Salinsky authorized Misericordia to contact his malpractice carriers, past and present, and all the hospitals that he had previously been associated with, for the purpose of obtaining any information bearing on his professional competence, as well as his moral, and ethical qualifications for staff membership. The application also contained a consent form for the inspection of Salinsky's medical records at the hospitals that he was presently affiliated with, or had been in the past, and further provided that Salinsky released "from any liability any and all individuals and organizations who provide information to the hospital, or its medical staff, in good faith and without malice concerning my professional competence, ethics, character and other qualifications for staff appointment and clinical privileges."

Mrs. Jane Bekos, Misericordia's medical staff coordinator (appointed April of 1973), testifying from the hospital records, noted that Salinsky's appointment to the medical staff was recommended by the then hospital administrator, David A. Scott, Sr., on June 22, 1973. Salinsky's appointment and requested orthopedic privileges, according to the hospital records, were not marked approved until August 8, 1973. This approval of his appointment was endorsed by Salinsky himself. Such approval would, according to accepted medical administrative procedure, not be signed by the applicant but by the chief of the respective medical section. Additionally, the record establishes that Salinsky was elevated to the position of Chief of Staff shortly after he joined the medical staff. However, the court record and the hospital records are devoid of any information concerning the procedure utilized by the Misericordia authorities in approving either Salinsky's appointment to the staff with orthopedic privileges, or his elevation to the position of Chief of Staff.

Mrs. Bekos, testified that although her hospital administrative duties entailed obtaining all the information available regarding an applicant from the hospitals and doctors referred to in the application for medical staff privileges, she failed to contact any of the references in Salinsky's case. In her testimony she attempted to justify her failure to investigate Salinsky's application because she believed he had been a member of the medical staff prior to her employment in April of 1973, ⁹ even though his application was not marked approved until some four months later on August 8, 1973. Further, Mrs. Bekos stated that an examination of the Misericordia records reflected that at no time was an investigation made by anyone of any of the statements recited in his application.

The record indicates that at the Misericordia medical staff meeting on June 21, 1973, Dr. A. Howell, the hospital's medical director, stated that the hospital did not have a functioning credentials committee at this time, and therefore the executive committee must assume the responsibility of evaluating and approving applications for medical staff privileges. Additionally, the minutes of this meeting list Salinsky as an attending member of the defendant's medical staff at the meeting despite the fact that Salinsky's application for staff privileges had neither been recommended for approval, nor approved by the committee as of this date. At trial, the only member of Misericordia's medical staff executive committee to testify was Dr. Louis Maxey who stated that he did not recall ever being at any meeting where Salinsky's application was even considered.

Thus, besides raising a question as to when Salinsky was in fact appointed to Misericordia's medical staff, the testimony of Mrs. Bekos, and Dr. Maxey, together with the minutes of the defendant's medical staff meeting on June 21, 1973, clearly establishes that Misericordia did not investigate Salinsky's application before appointing him to its medical staff. Further, Walter Harden, Family Hospital's administrator, testified that no one from Misericordia, much less an executive committee member, contacted him in regard to Salinsky's statement in his application that he had orthopedic privileges at that institution. In fact, Misericordia concedes this point, stating "In this particular case, the defendant-appellant-petitioner hospital has admitted all along it did not check Dr. Salinsky's credentials...."

At trial, the...