Johnson v. Misericordia Community Hospital

Decision Date12 May 1980
Docket NumberNo. 79-696,79-696
Citation294 N.W.2d 501,97 Wis.2d 521
PartiesJames JOHNSON, Plaintiff-Respondent, v. MISERICORDIA COMMUNITY HOSPITAL and Employers Mutual Liability Insurance Company of Wisconsin, Defendants-Appellants.
CourtWisconsin Court of Appeals

Review Granted.

C. Donald Straub and the Law Office of C. Donald Straub, Milwaukee, for defendants-appellants.

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

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

CANNON, Judge.

On July 11, 1975, plaintiff-respondent Johnson underwent surgery at Misericordia Hospital in Milwaukee for removal of a pin fragment from his right hip. The surgery was performed by Dr. Lester V. Salinsky. During the course of the operative procedure, plaintiff's right femoral artery and nerve were severed. The damage led to permanent paralysis of plaintiff's right thigh muscles, with resultant atrophy, weakness and loss of function.

Prior to trial, the plaintiff entered into a settlement agreement with Dr. Salinsky whereby Dr. Salinsky agreed to pay plaintiff $140,000. Plaintiff in turn executed a Pierringer-type release absolving Dr. Salinsky from any further liability in this case. Upon conclusion of the trial, the jury found that Dr. Salinsky was negligent in the manner in which he performed the surgery, and attributed twenty percent of the causal negligence to him. The jury also found Misericordia Community Hospital (Misericordia) negligent with respect to its granting of orthopedic privileges to Dr. Salinsky, and apportioned eighty percent of the causal negligence to the hospital. Damages were awarded in the sum of $315,000 for personal injuries, past and future, and $90,000 for impairment of earning capacity, past and future. Misericordia appeals from the judgment.

A review of the facts with respect to plaintiff's cause of action against Misericordia is necessary before we can undertake a discussion of the issues presented. Misericordia Community Hospital began operation as a state approved and licensed general hospital 1 in approximately November of 1972. On March 5, 1973, Dr. Lester Salinsky applied for appointment to the medical staff of Misericordia, requesting full surgical and orthopedic privileges. In his application, Dr. Salinsky indicated that he was on the active medical staff of Doctors Hospital in Milwaukee with full orthopedic privileges, and held consultant privileges at New Berlin Community Hospital and Northwest General Hospital. Dr. Salinsky further stated that his privileges had never been suspended, diminished, revoked or not renewed at any hospital. Finally, he failed to answer any questions regarding malpractice liability insurance, nor did he identify any of his carriers. This information was omitted despite the fact that the application contained a consent permitting the hospital staff to consult with past and present malpractice carriers "who may have information bearing upon (his) professional competence, character, and ethical qualifications."

Contrary to the above, Dr. Salinsky had experienced curtailment, investigation and denial of his hospital staff privileges at other Milwaukee hospitals. On January 10, 1973, Dr. Salinsky had been notified that his surgical privileges at Doctors Hospital in Milwaukee were severely restricted, i. e., all privileges for procedures involving the hip were withdrawn and a qualified preoperative consultation by another physician was required prior to any open surgical procedure being attempted. In 1971, St. Anthony Hospital had denied Dr. Salinsky any privileges. In December, 1963, Mount Sinai Hospital had restricted Dr. Salinsky's privileges to perform complex orthopedic surgery, limiting his practice to that of a courtesy physician in the Department of General Practice. Finally, the administrators of both Northwest General Hospital and New Berlin Memorial Hospital testified that they had no records of Dr. Salinsky having been associated with their hospitals.

Notwithstanding the above, Dr. Salinsky's appointment to the medical staff at Misericordia was approved on June 22, 1973 by David A. Scott, administrator of the hospital. Shortly after his admission, Dr. Salinsky was elected chief of the medical staff at Misericordia. The record is devoid of any provision as to how he was elected chief of staff. On August 8, 1973, Dr. Salinsky's staff privileges and requested orthopedic privileges were marked approved, and the approval endorsed by Dr. Salinsky himself.

Counsel for Misericordia has raised thirty issues for our consideration on appeal. In the interest of conciseness, we have organized these issues under the four elements of a cause of action in negligence. 2 Evidentiary questions and related matters will be discussed thereunder. Succinctly stated, the basic issues are:

1. Does a hospital have a duty to exercise reasonable care in the selection of its medical staff and in the granting of specialized surgical privileges?

2. Did Misericordia exercise ordinary care in failing to scrutinize Dr. Salinsky's credentials before his application for permission to use hospital facilities was approved?

3. Was there a causal relationship between Misericordia's conduct in failing to check Dr. Salinsky's references prior to allowing him to use its facilities, and the resulting injury to the plaintiff?

4. Was there sufficient credible evidence to sustain the jury's determination of damages for personal injuries and impairment of future earning capacity?


The classic statement in Wisconsin regarding the requirements for establishing duty in a claim of negligence is found in A. E. Investment Corporation v. Link Builders, Inc., 62 Wis.2d 479, 483, 214 N.W.2d 764, 766 (1974): "The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act." The court further noted:

A defendant's duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones. In addition, he is liable to unforeseeable plaintiffs. Id. at 484, 214 N.W.2d at 766. 3

Inexorably interwoven with the concept of duty then is that of foreseeability. Coffey, supra at 537, 247 N.W.2d at 138. The harm foreseen must also present an unreasonable risk of danger. Wilson, supra at 318, 274 N.W.2d at 683; Restatement (Second) of Torts § 291 at 54; Prosser, Torts § 31 at 145 (4th ed. 1971). Whether Misericordia owed a duty to this plaintiff depends on whether it was foreseeable that failure to scrutinize Dr. Salinsky's credentials in accordance with established standards would cause harm to someone. This involves a question of law for the court. Olson v. Ratzel, 89 Wis.2d 227, 250, 278 N.W.2d 238, 249 (Ct.App.1979); Schicker v. Leick, 40 Wis.2d 295, 299, 162 N.W.2d 66, 69 (1968).

The liability which is sought to be imposed here is not a vicarious one. Misericordia is charged with wrongdoing separate and distinct from that of Dr. Salinsky. Dr. Salinsky was not an employee of the hospital, but an independent contractor. This plaintiff was a private patient who had consulted Dr. Salinsky for treatment outside of the hospital environment. In most instances, a hospital will not be liable for the negligent acts of those over whom it has no control. The theory of the case before us, however, is that Misericordia, by its tortious actions (or inactions) created a situation in which the natural, probable and foreseeable consequences were harm of the type which resulted. This concept of holding a hospital liable for its own negligence has been termed "corporate negligence." In this context, it has been defined as the failure of a hospital, entrusted with the task of providing the accommodations necessary to carry out its purpose, to follow the established standard of conduct to which it should conform. Bader v. United Orthodox Synagogue, 148 Conn. 449, 453, 172 A.2d 192, 194 (1961). Corporate negligence differs from the doctrine of respondeat superior because it imposes on the hospital a nondelegable duty owed directly to the patient, disregarding the details of the doctor-hospital relationship. Southwich, The Hospital's New Responsibility, 17 Clev.-Mar.L.Rev. 146, 151-2 (1968). We are of the opinion that Misericordia's failure to adhere to established procedures with regard to the "credentials process" involved a breach of the separate and distinct duty owed to potential patients and, therefore, created a foreseeable and unreasonable risk of harm to such patients.

Misericordia relies on sec. H 24.04(1)(d)1 of the Wis.Adm.Code for its claim that there is no legal duty to exercise care in scrutinizing the credentials of a physician who requests admission to the staff:

(d) Staff appointments shall be made by the governing body, taking into account recommendations made by the active staff.

1. The governing body shall have the legal right to appoint the medical staff and the moral obligation to appoint only those physicians who are judged by their fellows to be of good character and qualified and competent in their respective fields. (Footnotes omitted.)

Thus, Misericordia claims that even if this court finds a duty, such duty can be only moral in nature, and not of sufficient substance upon which to base legal liability for plaintiff's injuries. The Wis.Adm.Code, however, also makes it clear that the medical staff is "responsible to the governing body of the hospital for the quality of all medical care provided patients in the hospital, and for the ethical and...

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