Johnson v. Misericordia Community Hospital

CANNON, J.

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 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's 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. . . .

Misericordia objects to the introduction of Mr. Harden's testimony regarding the restrictions imposed on Dr. Salinsky's practice at Doctors Hospital and to the introduction of Doctors Hospital medical executive committee reports dealing with the investigation and suspension of Dr. Salinsky's privileges. Misericordia similarly objects to the admission of testimony by the attorney for St. Anthony Hospital regarding the hospital's refusal to allow Dr. Salinsky on the staff. Finally, defendant objects to the introduction of documents concerning the action of the credentials committee of St. Anthony Hospital in regard to Dr. Salinsky's application.

The objections to the introduction of the minutes and records are based on hearsay. The trial court received the documents into evidence under the hearsay exception for records of regularly conducted activities. Sec. 908.03(6), Stats. The trial court also noted that even if such records constituted medical opinions, they were not admitted to establish the truth of the opinions, but to show that such opinions did exist and should have been considered by those investigating Dr. Salinsky's application. We affirm the trial court.

Hearsay evidence is generally excluded as untrustworthy; lacking the traditional guarantees of oath, confrontation and cross-examination for the credibility of the out-of-court declarant. Thus hearsay rests its value upon the credibility of the out-of-court declarant. Misericordia claims that for these reasons, the individuals who comprised the committees and conducted the investigation leading to restriction and denial of staff privileges should have been present to testify. Nevertheless, Misericordia made no effort to prove the untruthfulness of the reports or to challenge the trustworthiness of physicians involved. . . .

Misericordia could have subpoenaed the individual committee members if indeed the truth of the reports was in question. This was its prerogative, which it failed to exercise. Based upon the facts as incorporated in this record, we affirm the trial court's receipt into evidence of the committee reports regarding Dr. Salinsky's professional competence. The reports were properly considered by the jury as evidence of the type of information available to Misericordia at the time of Dr. Salinsky's application for staff privileges.

The evidence concerning the "credentials process" was admissible to show the existence of information regarding Dr. Salinsky's professional qualifications and the availability of such knowledge to Misericordia's medical executive committee. Thus Misericordia should have known of the restrictions placed on Dr. Salinsky's practice by other Milwaukee hospitals and that one hospital had denied him staff privileges. Once admissible for the purpose of showing the existence and availability of information, Misericordia's remedy at trial was to ask for a limiting instruction pursuant to sec. 901.06, Stats., if it believed that the evidence was to be used to establish Dr. Salinsky's incompetence. . . .

Misericordia also objects to the introduction into evidence of the testimony of Dr. Nesemann that between the years of 1967 and 1975, he had heard other physicians state that "Dr. Salinsky was incompetent as an orthopedic surgeon." The trial court allowed the testimony under secs. 904.04 and 904.05, Stats. We agree that the evidence was properly admitted, but on different grounds. Where the action is for malpractice of a physician, and the question is whether he did a particular act involving unskillful or improper methods, habitual qualities, if properly evidenced by repute are relevant and admissible as indicating the physician's probable conduct. It is skill and training that we are dealing with here, and not habit or moral trait. Therefore, the character rule is not involved. 1 Wigmore, Evidence § 67…. … As indicating the likelihood of a person doing or not doing an act in question, evidence of lack of technical skill is of probative value.

The considerations that have led to exclusion of such facts in a few instances have usually been considerations affecting some other use or aspect of the evidence, with which the present use was confounded. Thus, the rules against the use of a party's character as evidence . . . have sometimes been thought to require exclusion of facts wrongly construed as equivalent to character. Again, the rule against using an accused person's specific misconduct to show character . . . , and limiting such misconduct, when used to show intent, by strict conditions . . . , may sometimes be thought to operate against the fact of possession of criminal tools or other means. The general impropriety of using against an accused person either character, or specific misconduct to show character, is so constantly in the mind of Courts that they occasionally ignore the possibilities of evidence from the present point of view, and, by a wrong construction of the purpose of the evidence, feel bound to apply to it exclusionary rules that have no concern with it. This much must be kept in mind as a key to rulings which are otherwise inexplicable and ought not to stand as precedents.

As a general principle, then, the existence or lack of the physical capacity, skill, or means to do an act is admissible as some evidence of the possibility or probability of the person's doing or not doing it: 1 Wigmore, supra § 83 at 513. . . .

Again, as above, this evidence was admissible for the purpose of showing the availability of knowledge concerning Dr. Salinsky's competence. If counsel for Misericordia thought this evidence might be used for an improper purpose, a limiting instruction should have been requested pursuant to sec. 901.06, Stats. . . .

By the Court. -- Judgment affirmed.