Evidence of 'red flag' in negligent credentialing case inadmissible.

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,

and son, "regarding the various options, including surgical and nonsurgical therapy ... the risks and gains of aortic valve replacement utilizing a pericardial venograft," the patient agreed to proceed with the surgery. During the course of surgery, while the patient's chest was being opened, the innominate vein was torn. Dr. McEnany promptly noticed the tear and clipped the ends of the vein with surgical clips. According to Dr. Robert Wuerflein, a medical expert who had reviewed the case on behalf of the patient's family, indicated that with the exception of the tearing of the innominate vein, it "was an uncomplicated surgery," and the valve replacement was "uneventful." The cardiologist's progress note the day after surgery indicated that the patient looked great, was awake and alert. However, on October 10, when the patient was beginning dialysis treatment, he went into cardiac arrest. Dr. McEnany performed a prolonged resuscitation. The following morning, the patient's condition had deteriorated. Dr. McEnany ordered an echocardiogram. The echocardiogram indicated blood pooling around the heart, causing a tamponade condition. Dr. McEnany performed an emergency sternotomy to relieve the tamponade. Although the surgery relieved the tamponade, the patient never recovered from the cardiac arrest and died on October 24. Suit was brought against the hospital for alleged negligence in obtaining informed consent, negligence in performing the surgery, and negligent postoperative care. The complaint also alleged negligence on the part of the hospital and clinic and negligent credentialing of Dr. McEnany. There was extensive pretrial discovery as well as an extraordinary number of pretrial motions. The court granted the hospital's motion to bifurcate the plaintiff's claim for negligence and informed consent against Dr. McEnany from the plaintiff's negligent credentialing claim against the hospital. Before trial, the parties sought rulings on the admissibility of Dr. McEnany's record while he was practicing in California, referred to as the "California Evidence."

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)