Unit 4: Writing Assignment Mark as done Discuss the two cases in a 750-page essay per case. (See Chapter 7, page 269) In a well-organized, two to three page essay, discuss the case of Johnson v. Mise

Johnson v. Misericordia Community Hospital
99 Wis. 2d 708, 301 N.W.2d 156 (1981)
Coffey, J.
This case involves negligent surgery performed on Mr. Johnson by Dr. Salinsky at Misericordia Community Hospital in July 1975. Because of undisputed negligence by the doctor, the patient (plaintiff) has “a permanent paralytic condition of his right thigh muscles with resultant atrophy and weakness and loss of function.” The doctor settled before trial, but the hospital disputed allegations that it was negligent. A verdict in favor of the plaintiff was affirmed by the court of appeals.

Misericordia Community Hospital had previously been a religiously affiliated hospital but was sold to a private group of physicians who first operated it as a nursing home but subsequently reinstituted acute care services there. At the time of the incidents in this case, the hospital was not accredited by The Joint Commission.]

On March 5, 1973 … Dr. Salinsky applied for orthopedic privileges on the medical staff. In his application, Salinsky stated that he was on the active medical staff of [other hospitals and 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, [and] 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 language releasing the hospital from any liability as a result of doing a background check on the applicant.]
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, 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.
…
At trial, the representatives of two Milwaukee hospitals … gave testimony concerning the accepted procedure for evaluating applicants for medical staff privileges. Briefly, they stated that the hospital’s governing body, i.e., the board of directors or board of trustees, has the ultimate responsibility in granting or denying staff privileges. However, the governing board delegates the responsibility of evaluating the professional qualifications of an applicant for clinical privileges to the medical staff. The credentials committee (or committee of the whole) conducts an investigation of the applying physician’s or surgeon’s education, training, health, ethics and experience through contacts with his peers in the specialty in which he is seeking privileges, as well as the references listed in his application to determine the veracity of his statements and to solicit comments dealing with the applicant’s credentials. Once [this has been done, a recommendation is relayed] to the governing body, which … has the final appointing authority.
The record demonstrates that had [such an investigation been conducted, Misericordia] would have found, contrary to [Dr. Salinsky’s] representations, that he had in fact experienced denial and restriction of his privileges, as well as never having been granted privileges at the very same hospitals he listed in his application. This information was readily available to Misericordia, and a review of Salinsky’s associations with various Milwaukee orthopedic surgeons and hospital personnel would have revealed that they considered Salinsky’s competence as an orthopedic surgeon suspect, and viewed it with a great deal of concern.
[The court summarizes some of Dr. Salinsky’s professional history. At one hospital, his request for expanded orthopedic privileges was denied after being on the staff for a year and a half. At another, his privileges were temporarily suspended and subsequently limited after a report of “continued flagrant bad practices.” At a third, his initial application for privileges was flatly denied. The court adds, “The testimony at trial established many other discrepancies in Salinsky’s Misericordia application,” and it points out that experts in the field testified that, in their opinion, a prudent hospital would not have granted Salinsky’s application under these circumstances.]

The jury found that the hospital was negligent in granting orthopedic surgical privileges to Dr. Salinsky and thus apportioned eighty percent of the causal negligence to Misericordia. Damages were awarded in the sum of $315,000 for past and future personal injuries and $90,000 for past and future impairment of earning capacity….
Issues:
Does a hospital owe a duty to its patients to use due care in the selection of its medical staff and the granting of specialized surgical (orthopedic) privileges?
What is the standard of care that a hospital must exercise in the discharge of this duty to its patients[,] and did Misericordia fail to exercise that standard of care in this case?
At the outset, it must be noted that Dr. Salinsky was an independent contractor, not an employee of Misericordia, and that the plaintiff is not claiming that Misericordia is vicariously liable for the negligence of Dr. Salinsky under the theory of respondeat superior. Rather, Johnson’s claim is premised on the alleged duty of care owed by the hospital directly to its patients.

… “The concept of duty in Wisconsin, as it relates to negligence cases, is irrevocably interwoven with foreseeability. Foreseeability is a fundamental element of negligence.” In [a prior case,] this court set the standard for determining when a duty arises:
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.
Further, we defined the term “duty” as it relates to the law of negligence:
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.
…
Thus, the issue of whether Misericordia should be held to a duty of due care in the granting of medical staff privileges depends upon whether it is foreseeable that a hospital’s failure to properly investigate and verify the accuracy of an applicant’s statements dealing with his training, experience and qualifications as well as to weigh and pass judgment on the applicant would present an unreasonable risk of harm to its patients. The failure of a hospital to scrutinize the credentials of its medical staff applicants could foreseeably result in the appointment of unqualified physicians and surgeons to its staff. Thus, the granting of staff privileges to these doctors would undoubtedly create an unreasonable risk of harm or injury to their patients. Therefore, the failure to investigate a medical staff applicant’s qualifications for the privileges requested gives rise to a foreseeable risk of unreasonable harm and we hold that a hospital has a duty to exercise due care in the selection of its medical staff.

Our holding herein is in accord with the public’s perception of the modern day medical scientific research center with its computed axial tomography (CATscan), radio nucleide imaging thermography, microsurgery, etc., formerly known as a general hospital. The public is indeed entitled to expect quality care and treatment while [they are patients] in our highly technical and medically computed hospital complexes. The concept that a hospital does not undertake to treat patients, does not undertake to act through its doctors and nurses, but only procures them to act solely upon their own responsibility, no longer reflects the fact…. [T]he person who avails himself of our modern “hospital facilities” … expects that the hospital staff will do all it reasonably can to cure him and does not anticipate that its nurses, doctors and other employees will be acting solely on their own responsibility.

Further, our holding is supported by the decisions of a number of courts from other jurisdictions. These cases hold that a hospital has a direct and independent responsibility to its patients, over and above that of the physicians and surgeons practicing therein, to take reasonable steps to (1) insure that its medical staff is qualified for the privileges granted and/or (2) to evaluate the care provided.

[The court here embarks on a lengthy discussion of similar cases from various other states. It points out the leading case of Darling v. Charleston Community Memorial Hosp., in which the Supreme Court of Illinois found a direct duty flowing from hospital to patient regarding the qualifications of members of the medical staff. The Johnson court favorably quotes from the Darling opinion, including the following passage: “The Standards for Hospital Accreditation, the state licensing regulations and the defendant’s bylaws demonstrate that the medical profession and other responsible authorities regard it as both desirable and feasible that a hospital assume certain responsibilities for the care of the patient.”]

There was credible evidence to the effect that a hospital, exercising ordinary care, [would have known of the deficiencies in Dr. Salinsky’s qualifications and] would not have appointed Salinsky to its medical staff….

This court has held “… a jury’s finding of negligence … will not be set aside when there is any credible evidence that under any reasonable view supports the verdict.

… Thus, the jury’s finding of negligence on the part of Misericordia must be upheld [because] the testimony of [the expert witnesses] constituted credible evidence which reasonably supports this finding.

In summary, we hold that a hospital owes a duty to its patients to exercise reasonable care in the selection of its medical staff and in granting specialized privileges. The final appointing authority resides in the hospital’s governing body, although it must rely on the medical staff and in particular the credentials committee (or committee of the whole) to investigate and evaluate an applicant’s qualifications for the requested privileges. However, this delegation of the responsibility to investigate and evaluate the professional competence of applicants for clinical privileges does not relieve the governing body of its duty to appoint only qualified physicians and surgeons to its medical staff and periodically monitor and review their competency. The credentials committee (or committee of the whole) must investigate the qualifications of applicants. [Paragraph break added.]

The facts of this case demonstrate that a hospital should, at a minimum, require completion of the application and verify the accuracy of the applicant’s statements, especially in regard to his medical education, training and experience. Additionally, it should: (1) solicit information from the applicant’s peers, including those not referenced in his application, who are knowledgeable about his education, training, experience, health, competence and ethical character; (2) determine if the applicant is currently licensed to practice in this state and if his licensure or registration has been or is currently being challenged; and (3) inquire whether the applicant has been involved in any adverse malpractice action and whether he has experienced a loss of medical organization membership or medical privileges or membership at any other hospital. The investigating committee must also evaluate the information gained through its inquiries and make a reasonable judgment as to the approval or denial of each application for staff privileges. The hospital will be charged with gaining and evaluating the knowledge that would have been acquired had it exercised ordinary care in investigating its medical staff applicants and the hospital’s failure to exercise that degree of care, skill and judgment that is exercised by the average hospital in approving an applicant’s request for privileges is negligence. This is not to say that hospitals are insurers of the competence of their medical staff, for a hospital will not be negligent if it exercises the noted standard of care in selecting its staff. The decision of the Court of Appeals is affirmed.

Discussion Questions
In the opening paragraph of his classic 1881 treatise The Common Law, Oliver Wendell Holmes Jr. wrote: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

How is this case an example of the truth of this passage?

Do you agree with the court’s rationale? What would have been the implications of the opposite result?

Do you agree with the court’s statement on how the public perceives a modern hospital today? What evidence is there to support this statement?

Does this decision mean that a hospital will be liable for every incident of malpractice committed by nonemployee members of its medical staff? Why or why not?