PETER JALOWITZ HAD AN ENLARGED HEART AND A HISTORY OF AORTIC STENOSIS. The 81-year-old patient who had previously undergone surgery to repair an aortic valve a year earlier was at risk for sudden death. The patient's cardiologist referred him to Dr. Terry McEnany. Dr. McEnany met with the patient, obtained a history, and performed a physical examination during their forty to fifty-minute conference. Dr. McEnany's report states that following a "long discussion" with the patient, his wife,
THE TRIAL COURT RULED THAT THE 'CALIFORNIA EVIDENCE' WAS INADMISSIBLE. The court refused to admit any evidence relative to Dr. McEnany's surgical practice in California. The plaintiff sought to admit the 'California Evidence' which included, inter alia, accusations of negligence by Dr. McEnany as well as a memorandum of an agreement with a California medical facility where he had been employed as a surgeon that he would not perform surgery without the assistance of another cardiovascular surgeon on the facility's staff. The memorandum further stated that this was a "temporary solution to potentially reduce the situations where (the doctor) exposes himself (and subsequently, the patient) unnecessarily to problems by doing complex operative procedures with inadequate assistance. While a review of those allegations was pending, Dr. McEnany accepted employment in Wisconsin. Thus, ending his practice in California. The California medical facility then terminated its review. It filed no report with the California Medical Board. Later, it paid a penalty for its failure to file a report. After numerous hearings on the discovery and admissibility of the 'California Evidence,' the trial court refused to allow the 'California Evidence' to be admitted into evidence. The trial court directed a verdict for the defendant. The plaintiff appealed.
THE COURT OF APPEALS OF WISCONSIN AFFIRMED THE JUDGMENT OF THE LOWER COURT. The court held, inter alia, that the record failed to support the plaintiff's contention that the trial judge erred in ruling the 'California Evidence' to be inadmissible. The court concluded that the plaintiff's informed consent and negligent credentialing arguments failed for lack of causation. The court further found that the record lacked support of the plaintiff's claim that the court erroneously exercised its discretion with respect to the evidentiary rulings especially that as to the admissibility or inadmissibility of the 'California Evidence' The court found that the testimony was such that it was inconclusive as to whether or not anyone could say, with a reasonable degree of medical certainty, that the bleeding of the vein that was clipped during surgery caused the tamponade. Editor's Note: The failure of the California facility to fulfill its responsibility enabled the surgeon to practice in Wisconsin. It only paid a fine. The patient paid with his life. Jalowitz v. Physicians Insurance Co. of Wisconsin, Inc., 691 N.W. 926 -WI (2004)