This is a review of a decision of the court of appeals
This action arose out of a surgical procedure performed at Misericordia by Dr. Salinsky on July 11, 1975,
About fifteen months thereafter, on October 13, 1976, the plaintiff filed suit alleging that both Dr. Salinsky and Misericordia Community Hospital
"(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
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
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.
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
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,
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
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 representatives of two Milwaukee hospitals, Arthur Schmidt, attorney for St. Anthony's Hospital, and Walter Harden, administrator of Family Hospital, together with Charles Taylor, administrative hospital consultant with the Wisconsin Department of Health (Bureau of Quality Compliance), 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)
The record demonstrates that had the executive committee of Misericordia, in the absence of a current credentials committee, adhered to the standard and accepted practice of investigating a medical staff applicant's qualifications and thus examined Salinsky's degree, post graduate training, and contacted the hospitals referred to in his application, it would have found, contrary to his 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.
A short history of Salinsky's hospital contacts in the metropolitan Milwaukee area reflect that on December 19, 1947, Mt. Sinai Hospital granted Salinsky's request for privileges to perform simple orthopedic procedures
As to Family Hospital, Salinsky was granted orthopedic surgical privileges on January 22, 1954. Some years later, in December of 1972, the executive committee of Family Hospital, after receiving a report of "continued flagrant bad practices" in the hospital on the part of Dr. Salinsky, recommended that his privileges for hip surgery be temporarily suspended. The hospital administrator then informed Salinsky that the executive committee had temporarily suspended his privileges, and advised him that the suspension would continue pending a review of his cases by a committee of three orthopedic surgeons. Pursuant to the recommendation of this committee the hospital withdrew Salinsky's privileges to perform any hip surgery, and further ordered that he obtain consultation before attempting any open surgical procedure. This limitation of Salinsky's surgical privileges at Family Hospital occurred on January 10, 1973, just two months prior to his application for staff privileges at Misericordia. Thus, this information also, was readily available to the Misericordia authorities if they had conducted a proper investigation.
On June 24, 1970, Salinsky applied for orthopedic surgical privileges at St. Anthony's Hospital. In his application, Salinsky stated that he was a member of the active staff at Doctors (now known as Family) Hospital.
The testimony at trial established many other discrepancies in Salinsky's Misericordia application. The following testimony directly contradicted three of the representations made by Salinsky in his application to Misericordia. The administrators of both Northwest General Hospital and New Berlin Memorial Hospital testified that their records indicated Dr. Salinsky had never been associated with their hospitals. Also, Walter Harden, the administrator of Family Hospital where Dr. Salinsky had medical staff privileges from 1954 to 1973, testified that Salinsky was neither board certified, nor board eligible in the field of orthopedic surgery. This testimony contradicts the following language contained in the sentences preceding Salinsky's signature on his Misericordia application:
"I have not requested privileges for any procedures for which I am not certified. Furthermore, I realize that certification by a board does not necessarily qualify me to perform certain procedures. However, I believe that I am qualified to perform all procedures for which I have requested privileges."
Further, the record demonstrates that information having a bearing on Salinsky's qualifications as an orthopedic
Mr. Harden and Dr. Neeseman, both experienced with various medical staff credential committees in the Milwaukee area, opined that a hospital administrator or credentials committee, having investigated an applicant for orthopedic privileges and determined (1) that his privileges were confined to uncomplicated operative procedures at one hospital, and (2) that a committee of three orthopedic surgeons at another hospital had recommended that his orthopedic privileges be revoked, and (3) that such privileges were in fact revoked, a few months prior to the application under consideration,
Drs. Salinsky and Maxey testified for the defense. Salinsky contradicted the testimony of the administrators of Northwest General Hospital and New Berlin Memorial Hospital, stating that he had consultant privileges with those hospitals. He also testified that he did not approve his own appointment to Misericordia's medical staff and attempted to explain away his signature in the approval section of his application, stating his signature appeared there "Because I was asked to sign the papers, and I signed the papers. . . ." Salinsky further stated that his appointment to Misericordia's medical staff was approved because other members of the staff recommended him.
Dr. Maxey, as noted above, was the only member of Misericordia's medical staff executive committee in 1973 to testify at the trial. Besides testifying that he could not recall ever having participated in the review of Salinsky's application, Maxey stated that he was familiar with Salinsky's ability as an orthopedic surgeon prior to the time Salinsky applied for staff privileges at Misericordia. Further, that he was of the opinion that Salinsky, in 1973, was a competent orthopedic surgeon, even though his own specialty (Maxey's) was in the field of plastic surgery. Maxey testified that the fact that other hospitals had denied, suspended, limited or revoked Salinsky's privileges would not influence his belief in this regard, stating:
". . . if I personally had contacted a hospital and the contact point such as an administrator had given me a negative opinion relative to Dr. Salinsky, or any doctor,
However, on cross examination, Maxey stated that he would be interested in reviewing what other hospitals had done relative to a particular applicant and further limited his endorsement of Salinsky when he stated that he "would have to defer to an orthopedic man's opinion relative to another orthopedic man with due consideration of the medical politics and economic controls that get into surgery."
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. Judgment on the verdict was entered on May 7, 1979,
1. 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?
2. 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.
As stated in Coffey v. Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976), "The concept of duty in Wisconsin, as it relates to negligence cases is irrevocably interwoven with foreseeability. Foreseeability is a fundamental element of negligence." (Citations omitted.) Id. at 537. In A. E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764 (1974) 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." (Emphasis supplied.) Id. at 484.
"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." Id. at 483.
In addition, the harm that is foreseeable must create an unreasonable risk of danger. Wilson v. Continental Ins. Cos., 87 Wis.2d 310, 318, 274 N.W.2d 679 (1979). Where the facts relating to the injury that allegedly give rise to a legal duty are not in dispute and, in this case the hospital-doctor-patient relationship, the question of the existence of a duty is a question of law for this court to decide. See: Coffey v. Milwaukee, supra at 531; Schicker v. Leick, 40 Wis.2d 295, 299-300, 162 N.W.2d 66 (1968).
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.
Further, our holding is supported by the decisions of a number of courts from other jurisdictions. See: Tucson Medical Center, Inc. v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976); Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972); Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544, 550 (1977); Mitchell County Hospital Authority v. Joiner, 229 Ga. 140, 189 S.E.2d 412 (1972); Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326,
One of the leading cases introducing the concept that a hospital, as an institution, has a responsibility for the quality of medical care provided by members of its medical staff was Darling v. Charleston Community Memorial Hospital, supra. In Darling, the plaintiff broke his leg in a college football game and was taken to the defendant hospital's emergency room where the doctor on emergency call applied traction and placed the leg in a plaster cast. Not long after the application of the cast, the plaintiff was in great pain and his toes, which protruded from the cast, became swollen and dark in color and eventually cold and insensitive. The same doctor who applied the cast removed it just three days later and cut the plaintiff's leg on both sides in the process. At this time, nurses and other witnesses observed "blood and other seepage" and smelled a foul odor in the room. Despite knowledge of these facts, the hospital failed to investigate or review the doctor's work nor require consultation. Eleven days thereafter, the plaintiff was transferred to another hospital under the care of an orthopedic surgeon who determined that the fractured leg contained
The court characterized the central issue as involving the duty that rested upon the defendant hospital in rendering care and treatment to the plaintiff. Accordingly, one of the issues considered on review was whether the hospital was negligent, in the fact situation recited in this case, in failing to:
". . . require consultation with or examination by members of the hospital surgical staff skilled in such treatment; or to review the treatment rendered to the plaintiff and to require consultants to be called in as needed." Id. 33 Ill.2d at 333, 211 N.E.2d at 258.
The court readily found that the hospital owed a duty to the plaintiff in this regard stating:
"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." Id. 33 Ill.2d at 332, 211 N.E.2d 257.
Further, noting that there was no dispute that the hospital failed to review the doctor's treatment or require consultation after having been made aware that serious complications arose in the plaintiff's care and treatment, the court upheld the jury's verdict finding that the hospital was negligent in failing to review the doctor's work or require a consultation. Thus, the Illinois Supreme Court held that hospitals have a duty to monitor the quality of the practice of medicine and surgery that takes place within their facilities.
At trial, the expert medical testimony established that, given the location of the plaintiff's lesion, Purcell should have performed an anterior resection rather than a Babcock-Bacon proctosigmoidectomy. Further, the trial court admitted testimony concerning two patients who were treated by Purcell prior to the plaintiff at the defendant hospital. Purcell suspected that these patients were suffering from the same condition as the plaintiff, diverticulitis or cancer of the colon, and in neither case did Purcell perform an anterior resection. Both patients developed complications and both sued Purcell and the defendant hospital prior to Purcell's treatment of the plaintiff. In addition, two other patients of Dr. Purcell sued Purcell and the hospital for treatment they received in the hospital under Purcell's care. These suits were also commenced before Purcell treated the plaintiff.
". . . had a duty to the public to allow the use of its facilities only by such independent staff doctors as are professionally competent and who treat their patients in full accordance with accepted and established medical practices, and that the hospital breached its duty when it failed to take any action against Purcell when it knew, or should have known, that he lacked the skill to treat the condition in question," Id. 18 Ariz. App. at 80, 500 P.2d 340,
and affirmed a jury verdict in his favor.
Purcell was approved by the Arizona Supreme Court in Tucson Medical Center v. Misevch, supra, wherein the court stated:
"Hospitals have been given and have accepted the duty of supervising the competence of the doctors on their staffs. Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972), review denied; . . . The concept of corporate responsibility for the quality of medical care was clearly enunciated in Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860 (1965), when that court held that hospitals and their governing bodies may be held liable for injuries resulting from negligent supervision of members of their medical staffs. Moore v. Board of Trustees of Carson-Tahoe Hospital, 88 Nev. 207, 495 P.2d 605 (Nev. 1972). The hospital has assumed certain responsibilities for the care of its patients and it must meet the standards of responsibility commensurate with this trust. Beeck v. Tucson General Hospital, 18 Ariz.App. 165, 500 P.2d 1153 (1972), review denied. If the medical staff was negligent in the exercise of its duty of supervising its members or in failing to recommend action by the hospital's governing body prior to the case in issue, then the hospital would be negligent. Purcell v. Zimbelman, supra." Id. at 36.
Thus, Arizona also requires hospitals to take reasonable steps to give their patients assurance that the physicians and surgeons to whom they grant clinical privileges
Of the noted cases, Mitchell County Hospital Authority v. Joiner, supra, and Ferguson v. Gonyaw, supra, are directly in point. In Joiner, the plaintiff's husband, complaining of chest pains, was taken to the defendant hospital where he was examined by a Dr. Gonzalez. Gonzalez advised him that his condition was not serious and that hospitalization was not required at this time. About 1½ hours later, his chest pains became more severe and he died en route, on his return trip to the hospital. The plaintiff's complaint against the hospital was similar to the complaint herein in that she alleged that the hospital was negligent in failing to require satisfactory proof of the professional qualifications of Dr. Gonzalez as a practicing physician; in failing to make any investigations into his qualifications, character or background; and in failing to exercise care in determining his professional competency and moral character.
The Georgia Appellate Court reversed a summary judgment in favor of the hospital, holding that the hospital had a duty to screen applicants for positions on its medical staff and the hospital cannot be said to have discharged this duty where the only inferences drawn from the affidavit in support of the motion for summary judgment were that the hospital's medical staff granted the requested privileges solely because the applicant was licensed by the state, and was recommended by members of the medical staff. The court intimated that the hospital would have to demonstrate that the recommendation from members of its medical staff came only after a reasonable investigation of Gonzalez' qualifications and credentials. It stated:
"The hospital must act in good faith and with reasonable care in the selection of a physician, and it has
". . .
"The mere fact that [the doctor] was a licensed physician of the State of Georgia recommended by other doctors on the staff as required by law does not overcome the averments that the hospital was negligent in failing to exercise care in determining his professional competency, should it later appear by evidence that the doctor was an incompetent or unskilled physician." Joiner v. Mitchell County Hospital Authority, 125 Ga.App. 1, 3, 186 S.E.2d 307, 308, 309 (1971).
The Georgia Supreme Court affirmed the appellate court, stating:
". . . the plaintiff does not seek to hold the Hospital Authority liable under the doctrine of respondeat superior or principal and agent, but upon the doctrine of independent negligence in permitting the alleged negligent physician to practice his profession in the hospital, when his incompetency is known. Such negligence is comparable to that of the owner of a motor vehicle permitting an incompetent, inexperienced, or reckless driver to operate such motor vehicle. See Vaughn v. Butler, 103 Ga.App. 884, 121 S.E.2d 72. While in such cases the mere permission is insufficient to hold the owner liable without actionable negligence by the operator, yet each is held for his independent acts and not as master and servant or principal and agent."
". . .
". . . a Hospital Authority operating a public hospital has authority to examine the qualifications of any physician seeking staff privileges and to limit his practice to those areas in which he is deemed qualified to practice or to completely bar him from such practice if he is incompetent, unqualified, inexperienced or reckless.
"As pointed out by the decision of the Court of Appeals, the delegation of the Authority to screen applicants for staff membership on the medical staff does not relieve the Authority of its responsibility, since the members of such staff act as agents for the Authority,
Thus, it is clear that the Georgia Supreme Court has held that a hospital may be independently negligent and therefore liable for injury resulting from a failure to exercise reasonable care in its selection of a staff physician, and further that the hospital must investigate, review and pass judgment on the applicant's competency and cannot rely solely on the fact that he is a state licensed physician and has been recommended by other members of the medical staff.
In Ferguson, supra, the plaintiff was admitted to the defendant hospital under the care of Dr. Gonyaw, an osteopathic neurosurgeon. The plaintiff was suffering from a back injury at the time of admission to the hospital and his injury was apparently aggravated by the treatment received in the hospital at the hand of Gonyaw, as he alleged that Gonyaw failed to use the requisite standard of care in treating the same. He alleged that the hospital was negligent in granting staff privileges to Dr. Gonyaw claiming that a reasonable and prudent hospital would have determined that Gonyaw had inadequate training to be allowed to practice neurosurgery in its facilities. He established that the hospital had not verified the facts on Dr. Gonyaw's application for staff privileges and in fact they did not even follow normal procedures, i.e., "[t]here were no letters in the file cross-checking his references or his past associations. Neither were there notations of telephone calls to his references or past associates as the administrator testified there
"One of the hospital's primary functions is to screen its staff of physicians to `insure' that only competent physicians are allowed to practice in the hospital.
". . .
"Viewing the evidence in the light most favorable to the plaintiff,
At oral argument, the defendant conceded that other jurisdictions have recognized that hospitals owe a duty of care to their patients in selecting members of their medical staffs and granting various privileges.
"Any person granted a license to practice medicine and surgery under ss. 448.05 and 448.06 shall be afforded an equal opportunity to obtain hospital staff privileges. No such person shall be denied hospital staff privileges solely for the reason that the person is an osteopathic physician and surgeon. Each individual hospital shall retain the right to determine whether the applicant's training, experience and demonstrated competence is sufficient to justify the granting of medical staff privileges." (Emphasis supplied.)
Wis. Adm. Code sec. H 24.04(1)(d) 1 states:
"(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."
While it is true that the above-quoted statute and Administrative Code provision, when read together, provide that individual hospitals retain the right to determine whether an applicant is qualified for a position on its medical staff, and that hospitals (through their governing bodies) have a "moral obligation to appoint only those physicians [and surgeons] who are judged by their fellows [peers] to be of good character and qualified and competent in their respective fields," this statute and administrative rule in no way purport to negate the common law duty of care owed to patients by the hospital. Indeed, sec. 50.36(3), Stats., implies the contrary in that it specifically states that the hospital must look to the applicant's "training, experience and demonstrated
"The purpose of ss. 50.32 to 50.39 is to provide for the development, establishment and enforcement of rules and standards for the construction, maintenance and operation of hospitals which, in the light of advancing knowledge, will promote safe and adequate care and treatment of patients in such hospitals." (Emphasis supplied.)
This court has stated on numerous occasions that a statute must be construed in light of its purpose. See: Wisconsin's Environmental Decade v. Public Service Commission, 84 Wis.2d 504, 518, 267 N.W.2d 609 (1978); Student Ass'n. of the Univ. of Wis.-Milw. v. Baum, 74 Wis.2d 283, 294-95, 246 N.W.2d 622 (1976).
Clearly, sec. 50.34, Stats., demonstrates that the legislature's concern in enacting the Hospital Regulation and Approval Act (secs. 50.32 to 50.39, Stats.,)
Wis. Adm. Code, secs. H 24.02(1) and (1)(e) provides that the governing body shall be "legally responsible for the conduct of the hospital as an institution," and that the governing body has the ultimate responsibility for appointment of the medical staff. Administrative Code sec. H 24.04 governs medical staff appointments and, in addition to sec. 24.04(1)(d) 1 quoted above, provides:
"H 24.04 Medical staff. (1) The hospital shall have a medical staff organized under bylaws approved by the governing body, and 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 professional practices of its members.
". . .
"(e) Members of the staff shall be qualified legally, professionally, and ethically for the positions to which they are appointed.
"1. To select its members and delineate privileges, the hospital medical staff shall have a system, based on definite workable standards, to evaluate each applicant by its credentials committee (or in small hospitals, committee-of-the-whole) which makes recommendations to the medical staff and to the governing body.
"2. Privileges shall be extended to duly licensed qualified physicians to practice in the appropriate fields of general practice, internal medicine, surgery, pediatrics, obstetrics, gynecology, and other recognized and accepted fields according to individual qualifications.
"4. Under no circumstances shall the accordance of staff membership or professional privileges in the hospital be dependent solely upon certification, fellowship, or membership in a specialty body or society. All qualified candidates shall be considered by the credentials committee.
". . .
"(f) Regardless of any other categories having privileges in the hospital, there shall be an active staff, properly organized, which performs all the organizational duties pertaining to the medical staff. These include:
"1. Maintenance of the proper quality of all medical care and treatment in the hospital." (Emphasis supplied.)
The interpretation of sec. 50.36(3), Stats., and Wis. Adm. Code, ch. H 24 that Misericordia suggests would allow hospitals to become lax in their review of applications for staff privileges and thus subject patients to an unwarranted risk of unskilled treatment by unqualified physicians and surgeons. We can conceive of no construction of sec. 50.36(3), and the Wis. Adm. Code sec. H 24.04(1)(d) 1, that is more contrary to the purpose of promoting quality care and treatment of patients set forth in sec. 50.34, than that advanced by the petitioner. Moreover, Misericordia's construction of these provisions conflicts with the above-quoted portions of Wis. Adm. Code ch. H 24 which clearly and without qualification obligates hospitals to extend medical staff privileges to only those physicians who are qualified "legally, professionally and ethically." Thus, the defendant's reliance on sec. 50.36(3), and Wis. Adm. Code sec. H 24.04 (1)(d) 1, for the claim that Wisconsin hospitals do not owe a duty of care to their patients in the selection of their medical staff and the granting of staff privileges is without merit as it suggests a construction of sec. 50.36(3) that is opposed to the very purpose for which
The defendant's primary claim before this court is that the plaintiff failed to meet its burden of proving a breach of duty on the part of the hospital, i.e., that Misericordia did not exercise reasonable care when granting orthopedic surgical privileges to Dr. Salinsky. Misericordia contends that the failure to exercise reasonable care when granting staff privileges can only be shown by proof that Dr. Salinsky was an incompetent orthopedic surgeon before it granted him privileges or before the operation on July 11, 1975, and that the hospital knew or should have known of his incompetency. Even if we were to hold proof of incompetency at the time a physician or surgeon applies for staff privileges to be the standard, there was sufficient testimony to establish that Salinsky used questionable orthopedic procedures as far back as 1973. Dr. Neeseman stated that he had personally reviewed some of Salinsky's cases and found that they "were not the work of a competent orthopedic surgeon." However, in this case, we do not adopt the legal theory that knowledge of incompetency is the standard for determining whether a hospital exercised due care in selecting its staff.
In Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 278 N.W.2d 208 (1979), this court, quoting from Osborne v.
"`. . . the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage.'" Peters v. Holiday Inns, Inc., supra at 122-23.
The standard of "ordinary care under the circumstances" applies to hospitals. In Payne v. Milwaukee Sanatarium Foundation, Inc., 81 Wis.2d 264, 272, 260 N.W.2d 386 (1977), this court held, "The duty of care owed a patient by a hospital in this state is one of ordinary care under the circumstances." See also: Schuster v. St. Vincent Hospital, 45 Wis.2d 135, 172 N.W.2d 421 (1969). Stated differently, for a hospital to be liable ". . . it must have failed to exercise that standard of care usually exercised in similar situations by other members of the medical profession and thus breached that legal duty owed to the patient." Mossey v. St. Luke's Hospital, 63 Wis.2d 715, 720-21, 218 N.W.2d 514 (1974). Thus, for Misericordia to be liable for negligence in this case, it must have failed to exercise that degree of care and skill required of a hospital under like or similar circumstances. See: Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166, 208 N.W.2d 328 (1973) (rejecting the "locality" rule in medical malpractice actions).
The resolution of the issue of whether the hospital was negligent in granting Salinsky orthopedic surgical privileges and appointing him to its medical staff depends
Turning to the plaintiff's proof requirements, since the procedures ordinarily employed by hospitals in evaluating applications for staff privileges are not within the realm of the ordinary experience of mankind, we agree with the ruling of the appellate court that expert testimony was required to prove the same.
"In establishing the negligence of a hospital the necessity for expert testimony depends upon the type of negligent acts involved. Expert testimony should be adduced concerning those matters involving special knowledge, skill or experience on subjects which are not within the
There was an abundance of expert testimony in this case delineating the procedures used in various hospitals to verify a physician's representations and references when making application for staff privileges. The plaintiff's experts on hospital administration, Walter Harden and Charles Taylor, uniformly testified that this procedure involves contacting the applicant's past associates, i.e., hospitals and doctors, to check the veracity of his representations and to solicit their opinion of his qualifications for the privileges requested. Dr. Sam Neeseman testified that the four hospitals that granted staff privileges to him required, at a minimum, proof that he: (1) graduated from an accredited medical school; (2) completed his internship; (3) completed his orthopedic surgical training; and (4) was board certified in orthopedic surgery. Indeed, Mrs. Jane Bekos, medical staff coordinator for Misericordia from April of 1973 through January or February of 1977, testified the defendant usually followed this procedure, but that it was not adhered to in Dr. Salinsky's case.
Since the defendant hospital admits that it did not conduct an investigation of Salinsky's credentials, and this failure to act created an unreasonable risk of harm, its actual or constructive knowledge of Dr. Salinsky's qualifications for privileges certainly is a key factor in determining whether the hospital exercised reasonable care. See: Fiorentino v. Wenger, 19 N.Y.2d 407, 227 N.E.2d 296 (1967).
In this case, there was no evidence presented to the jury indicating that Misericordia had actual knowledge that Salinsky was not qualified to perform the hip surgery in question. Thus, the question becomes whether the defendant could be charged with constructive knowledge of Salinsky's poor reputation as an orthopedic surgeon in the community.
Constructive knowledge, as noted by the appellate court
"It is a general rule of law sustained by the authority of many cases that whatever fairly puts a person on inquiry with respect to an existing fact is sufficient notice of that fact if the means of knowledge are at hand. If under such circumstances one omits to inquire, he is then chargeable with all the facts which, by proper inquiry, he might have ascertained. Melms v. Pabst Brewing Co., 93 Wis. 153, 165, 66 N.W. 518, 20 R.C.L. p. 346, §7, and cases cited.
"The matter of knowledge or means of knowledge is dealt with in the Restatement of the Law of Contracts, sec. 180, comment f:
"`A person has "reason to know" a fact when he has such information as would lead a person exercising reasonable
"If a person confronted with a state of facts closes his eyes in order that he may not see that which would be visible and therefore known to him if he looked, he is chargeable with `knowledge' of what he would have seen had he looked. A person by closing his eyes for the purposes of preventing knowledge by that act brings himself within the field of knowledge as that term is used in the law. Therefore the trial court correctly held that if the defendant desisted from inquiry for the reason that she suspected that a situation existed which she did not wish to be aware of, she brought herself within the field of knowledge as to those matters which a reasonably careful inquiry would have disclosed."
The expert testimony in this case of Walter Harden and Charles Taylor clearly demonstrates that the average hospital in the exercise of ordinary care would have investigated the credentials of an applicant for staff privileges by contacting the hospitals referred to in his application. Thus, the record beyond all doubt demonstrates that under the doctrine of constructive knowledge, Misericordia at a minimum, was charged with having knowledge of that information which could readily have been obtained if only its personnel had contacted and communicated with the hospitals referred to in Salinsky's application.
The facts adduced at trial establish that had Misericordia sought information from the hospitals referred to in Salinsky's application, it would have discovered: (1) that Doctors Hospital revoked Salinsky's orthopedic privileges and required that he obtain consultation before attempting any open surgical procedure just two months before he applied for orthopedic privileges at Misericordia; (2) that he had been denied staff privileges at St. Anthony's Hospital in January of 1971; (3) that he was never on the consulting staff of New Berlin
There was credible evidence to the effect that a hospital, exercising ordinary care, would not have appointed Salinsky to its medical staff. Mr. Harden, administrator for Family Hospital, testified a hospital governing board with knowledge that an applicant for medical staff privileges had his orthopedic surgical privileges revoked at one hospital, on the recommendation of a panel of three orthopedic surgeons, and that his orthopedic privileges at another hospital were confined to simple operative procedures, would not, on the basis of
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. . . ." (citations omitted). Schuster v. St. Vincent Hospital, supra, at 144. Thus, the jury's finding of negligence on the part of Misericordia must be upheld as the testimony of Mr. Harden and Dr. Neeseman 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,
By the Court.—The decision of the Court of Appeals is affirmed.
"Where a hospital's alleged misconduct involves an omission to act, the hospital will not be held responsible unless it has reason to know that it should have acted within the duty it concededly had." (Citations omitted.) Fiorentino, supra, at 19 N.Y.2d 414, 227 N.E.2d at 299.