The IIII Johnson v. Misericordia Community Hospital 99 Wis. 2d 708, 301 N.W.2d 156 (1981) Coffey, J. sericulum This case involves negligent surgery per- formed on Mr. Johnson by Dr. Salinsky at cause for denial of appointment. Also, in the y been a Misericordia Community Hospital in July application, Salinsky authorized Misericor 1975. Because of undisputed negligence by dia to contact his malpractice carriers, past the doctor, the patient (plaintiff) has "a per- and present, and all the hospitals that he was sold manent paralytic condition of his right thigh had previously been associated with, for the who first muscles with resultant atrophy and weak- purpose of obtaining any information bearing ness and loss of function. " The doctor settled on his professional competence, as well as bsequen before trial , but the hospital disputed allega- his moral and ethical qualifications for staff tions that it was negligent. A verdict in favor membership. [ The application also contained there. At of the plaintiff was affirmed by the court of language releasing the hospital from any lia- appeals. bility as a result of doing a background check the hosp Misericordia Community Hospital had pre- on the applicant. ] viously been a religiously affiliated hospital, Mrs. Jane Bekos, Misericordia's medical ommiss but it was sold to a private group of physi- staff coordinator (appointed April of 1973) cians who first operated it as a nursing home testifying from the hospital records, noted March 5 but subsequently reinstituted acute care ser- that Salinsky's appointment to the medical vices there. At the time of the incidents in this staff was recommended by the then hospital hopedic case, the hospital was not accredited by The administrator, David A. Scott, ST., on June 2z, 1973. Salinsky's appointment and requested applicati joint Commission.] On March 5, 1973 . . . Dr. Salinsky applied orthopedic privileges, according to the hospi- tal records, were not marked approved until active m for orthopedic privileges on the medical staff. August 8, 1973. This approval of his appoint- In his application, Salinsky stated that he was ment was endorsed by Salinsky himself. at] his p on the active medical staff of [other hospitals Such approval would, according to accepted and that] his privileges at other hospitals medical administrative procedure, not be ver "bee had never "been suspended, diminished, signed by the applicant but by the chief of revoked, or not renewed." In another part of the respective medical section. Additionally, d, or not the application form, he failed to answer any the record establishes that Salinsky was ele- lication of the questions pertaining to his malpractice vated to the position of Chief of Staff shortly insurance, i.e., carrier, policy number, amount after he joined the medical staff. However, question of coverage, expiration date, [and] agent, and the court record and the hospital records are represented that he had requested privileges devoid of any information concerning the pro- ra in only for those surgical procedures in which cedure utilized by the Misericordia authori- he was qualified by certification. ties in approving either Salinsky's appoint- X In addition to requiring the above informa- ment to the staff with orthopedic privileges or tion, the application provided that significant his elevation to the position of Chief of Staff. misstatements or omissions would be a (continued)The Law of Healthcare Administration fact experienced denial and restriction of Duty Mrs. Debos testified that although her his privileges, as well as never having been granted privileges at the very same hospitals At th hospital administrative duties entailed he listed in his application. This information sky obtaining all the lionmation available em regarding an applicant from the hospitals was readily available to Misericordia, and a and doctors referred to in the application for review of Salinsky's associations with various medical staff privileges, she failed to contact Milwaukee orthopedic surgeons and hospital OUS any of the references in Salimby's case. In personnel would have revealed that they con- um her testimony she aftempted to justify her sidered Salinsky's competence as an ortho- Ra failure to investigate Salinsky's application pedic surgeon suspect, and viewed it with a because she believed he had been a member great deal of concern. of the medical staff prior to her employment The court summarizes some of Or. Salin- in April of 1973, even though his application was not marked approved until some four sky's professional history At one hospital, Mrs his request for expanded orthopedic privi- months later on August 8, 1973. Further, Mrs. Bekos stated that an examination of the leges was denied after being on the staff for spita Misericordia records reflected that at no time a year and a half. At another, his r, his privileges was an investigation made by anyone of any were temporarily suspended and subse- taini of the statements recited in his application. quently limited after a report of "continued Ar trial, the representatives of two Magrant bad practices. " At a third, his initial fardi Milwaukee hospitals . . . gave testimony application for privileges was flatly denied. concerning the accepted procedure for evalu- The court adds, "The testimony at trial estab- lished many other discrepancies in Salin- dot ating applicants for medical staff privileges. Briefly, they stated that the hospital's govern- sky's Misericordia application," and it points ing body, Le., the board of directors or board out that experts in the field testified that, in dica of trustees, has the ultimate responsibility in their opinion, a prudent hospital would not granting or denying staff privileges. However, have granted Salinsky's application under of t the governing board delegates the responsi- these circumstances.] bility of evaluating the professional qualifica The jury found that the hospital was neg- test tions of an applicant for clinical privileges to the medical staff. The credentials committee ligent in granting orthopedic surgical privi- ure (or committee of the whole) conducts an leges to Dr. Salinsky and thus apportioned investigation of the applying physician's or eighty percent of the causal negligence to surgeon's education, training, health, ethics Misericordia. Damages were awarded in the Buse and experience through contacts with his sum of $315,000 for past and future personal peers in the specialty in which he is seeking injuries and $90,ooo for past and future he m privileges, as well as the references listed impairment of earning capacity. . .. in his application to determine the veracity pril of his statements and to solicit comments Issues dealing with the applicant's credentials, Once not [this has been done, a recommendation is 1. Does a hospital owe a duty to its patients relayed] to the governing body, which . . . has to use due care in the selection of its ths the final appointing authority. medical staff and the granting of special- The record demonstrates that had (such ized surgical (orthopedic) privileges? Bek an investigation been conducted, Miseri- 2. What is the standard of care that a hospi- cordia] would have found, contrary to [Dr. tal must exercise in the discharge of this Salinsky's] representations, that he had in duty to its patients(,] and did Misericor dia fail to exercise that standard of care in this case?unreasonable risk of harm to its patients. At the outset, it must be noted that Dr. Salin- The failure of a hospital to scrutinize the sky was an independent contractor, not an credentials of its medical staff applicants employee of Misericordia, and that the plain- could foreseeably result in the appointment If is not claiming that Misericordia is vicari- of unqualified physicians and surgeons to its misly liable for the negligence of Dr. Salinsky staff. Thus, the granting of staff privileges to under the theory of respondeat superior. these doctors would undoubtedly create an Rather, Johnson's claim is premised on the unreasonable risk of harm or injury to their alleged duty of care owed by the hospital patients. Therefore, the failure to investigate a medical staff applicant's qualifications for directly to its patients. ... "The concept of duty in Wisconsin, as the privileges requested gives rise to a fore- p relates to negligence cases, is irrevocably seeable risk of unreasonable harm and we interwoven with foreseeability. Foreseeability hold that a hospital has a duty to exercise is a fundamental element of negligence." In due care in the selection of its medical staff. (a prior case,] this court set the standard for Our holding herein is in accord with the public's perception of the modern day determining when a duty arises: medical scientific research center with its A defendant's duty is established when computed axial tomography (CAT-scan), i can be said that it was foreseeable that radio nucleide imaging thermography, micro- his act or omission to act may cause harm to surgery, etc., formerly known as a general someone. A party is negligent when he com- hospital. The public is indeed entitled to mits an act when some harm to someone is expect quality care and treatment while [they foreseeable. Once negligence is established, are patients] in our highly technical and the defendant is liable for unforeseeable medically computed hospital complexes. The consequences as well as foreseeable ones. concept that a hospital does not undertake In addition, he is liable to unforeseeable to treat patients, does not undertake to act plaintiffs. through its doctors and nurses, but only Further, we defined the term "duty" as it procures them to act solely upon their own relates to the law of negligence: responsibility, no longer reflects the fact. The duty of any person is the obligation .. . [The person who avails himself of our of due care to refrain from any act which modern "hospital facilities" . . . expects that will cause foreseeable harm to others even the hospital staff will do all it reasonably can though the nature of that harm and the to cure him and does not anticipate that its identity of the harmed person or harmed nurses, doctors and other employees will be interest is unknown at the time of the act. acting solely on their own responsibility. Further, our holding is supported by the Thus, the issue of whether Misericordia decisions of a number of courts from other should be held to a duty of due care in the jurisdictions. These cases hold that a hospi- granting of medical staff privileges depends tal has a direct and independent responsibil upon whether it is foreseeable that a hospi- ity to its patients, over and above that of the lal's failure to properly investigate and verify physicians and surgeons practicing therein, The accuracy of an applicant's statements to take reasonable steps to (1) insure that dealing with his training, experience and its medical staff is qualified for the privi- Qualifications as well as to weigh and pass leges granted and/or (2) to evaluate the care judgment on the applicant would present an provided. (continued)(continued from previous page) its duty to appoint only qualified physicians and surgeons to its medical staff and periodi. Disc (The court here embarks on a lengthy dis- cally monitor and review their com cussion of similar cases from various other ir competency. states, It points out the leading case of Dar- The credentials committee (or committee of 1. ling v. Charleston Community Memorial Hos- the whole) must investigate the qualifica pital, in which the Supreme Court of Illinois tions of applicants. (Paragraph break added.] found a direct duty flowing from hospital to The facts of this case demonstrate that patient regarding the qualifications of mem- a hospital should, at a minimum, requir bers of the medical staff. The Johnson court completion of the application ar verify favorably quotes from the Darling opinion, the accuracy of the applicant's statements, including the following passage: "The Stan- especially in regard to his medical educa- dards for Hospital Accreditation, the state tion, training and experience. Additionally, it licensing regulations and the defendant's bylaws demonstrate that the medical profes- should: (1) solicit information from the appli- sion and other responsible authorities regard cant's peers, including those not referenced it as both desirable and feasible that a hos- in his application, who are knowledgeable pital assume certain responsibilities for the about his education, training, experience, care of the patient.") health, competence and ethical character; There was credible evidence to the effect (2) determine if the applicant is currently that a hospital, exercising ordinary care, licensed to practice in this state and if his [would have known of the deficiencies in Dr. licensure or registration has been or is cur- Salinsky's qualifications and] would not have rently being challenged; and (3) inquire appointed Salinsky to its medical staff. .. . whether the applicant has been involved in No This court has held ". . . a jury's finding any adverse malpractice action and whether of negligence . . . will not be set aside when he has experienced a loss of medical orga- there is any credible evidence that under any nization membership or medical privileges reasonable view supports the verdict. or membership at any other hospital. The . . . Thus, the jury's finding of negligence investigating committee must also evaluate on the part of Misericordia must be upheld the information gained through its inquiries [because] the testimony of [ the expert wit- and make a reasonable judgment as to the nesses] constituted credible evidence which reasonably supports this finding. approval or denial of each application for In summary, we hold that a hospital owes staff privileges. The hospital will be charged a duty to its patients to exercise reasonable with gaining and evaluating the knowledge care in the selection of its medical staff and that would have been acquired had it exer- in granting specialized privileges. The final cised ordinary care in investigating its medi- appointing authority resides in the hospital's cal staff applicants and the hospital's failure governing body, although it must rely on the to exercise that degree of care, skill and medical staff and in particular the creden- judgment that is exercised by the average tials committee (or committee of the whole) hospital in approving an applicant's request to investigate and evaluate an applicant's for privileges is negligence. This is not to say qualifications for the requested privileges. that hospitals are insurers of the competence However, this delegation of the responsibility to investigate and evaluate the professional of their medical staff, for a hospital will not competence of applicants for clinical privi- be negligent if it exercises the noted stan- leges does not relieve the governing body of dard of care in selecting its staff. Affirm - 1 The decision of the Court of Appeals is