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."