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Frigo v. Silver Cross Hospital and Medical Center

September 20, 2007


Appeal from the Circuit Court of Cook County. No. 00 L 11559. Honorable Donald J. O'Brien, Jr., Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Neville

Published opinion

Defendant, Silver Cross Hospital and Medical Center (Silver Cross), appeals from a jury verdict awarding plaintiff, Jean Frigo, $7,775,668.02 in damages. The jury verdict resulted from a negligent credentialing count based upon Silver Cross granting Dr. Paul Kirchner category II surgical credentials, which authorized the doctor to operate on Frigo's foot and culminated in her foot being amputated. On appeal, Silver Cross presents the following issues for review: (1) whether Frigo's action was barred by the statute of limitation because the negligent credentialing claim raised in the first amended complaint did not relate back to the allegations in the original complaint; (2) whether the negligent credentialing claim was barred by sections 8-2101 and 8-2102 of the Code of Civil Procedure, commonly known as the Medical Studies Act (735 ILCS 5/8-2101, 8-2102 (West 2000)); (3) whether the negligent credentialing claim was barred by the Hospital Licensing Act (210 ILCS 85/10.2 (West 2000)); (4) whether Frigo failed to prove that Silver Cross was negligent when it granted Dr. Kirchner category II surgical privileges; and (5) whether the trial court denied Silver Cross a fair trial when it used Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006) (hereinafter IPI Civil (2006)) to instruct the jury. We affirm and hold that negligent credentialing is a cause of action that is a progeny of hospital or institutional negligence, which is a cause of action that was first recognized by our supreme court in Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 331 (1965).


On October 6, 2000, Frigo brought a medical malpractice suit against Dr. Kirchner and Silver Cross, and in her original complaint she made allegations of negligence based upon her October 8, 1998, foot surgery. With respect to Dr. Kirchner, Frigo alleged that he should not have undertaken the elective bunion surgery until the ulcer in that area was allowed to heal. With respect to Silver Cross, she alleged both that Dr. Kirchner was its agent and that Silver Cross improperly managed and maintained the hospital. Through discovery, Frigo learned that Silver Cross gave Dr. Kirchner category II surgical privileges even though he did not meet the hospital's requirements for category II privileges. On April 25, 2003, Frigo filed a first amended complaint and included the allegation that Silver Cross was negligent in awarding Dr. Kirchner category II surgical credentials even though he had not completed a 12-month podiatric surgical residency and was not board certified as required by Silver Cross's bylaws and by the Joint Commission for Accreditation of Health Care Organizations' (JCAHO) standards. Frigo further alleged that Silver Cross should not have allowed Dr. Kirchner to care for her and that she would not have been injured if the hospital had not violated its duty.

The Trial

Before the trial, Dr. Kirchner settled with Frigo for $900,000. Frigo proceeded to trial against Silver Cross. Below is a summary of the testimony presented at trial that is relevant to this appeal.

Frigo's Case

Paul Pawlak

Paul Pawlak, Silver Cross's president and chief executive officer, testified that the hospital's board of directors (Board) had the final say in issuing credentials to physicians and that the duty was non-delegable. Pawlak testified that the hospital is governed in part by the medical staff's bylaws, which in turn must be approved by the Board. A physician's application is reviewed by the credentials committee, which forwards its recommendation to the medical staff executive committee, which in turn makes its recommendation to the Board. Pawlak testified that the Board does not usually obtain the physician's file but instead relies on the medical staff.

Pawlak testified that Silver Cross is accredited by the JCAHO. The JCAHO's standards provide for the betterment of healthcare, and they apply to this hospital. Silver Cross, as part of the accreditation process, agrees to abide by the JCAHO standards. The JCAHO standards on credentialing require the hospital Board to take into account the medical staff's recommendations and the hospital's bylaws. The JCAHO's section MS 5.10 provides:

"The governing body appoints and re-appoints to the Medical Staff and grants initial, renewed or revised clinical privileges based on the Medical Staff's recommendations in accordance with the Bylaws, Rules and Regulations and Policy of the Medical Staff and of the hospital."

Pawlak testified that the Board issues credentials in conjunction with the medical staff and has the power to reject its recommendations. The Board bases its issuance of privileges on the medical staff's recommendations and on the bylaws and regulations. The JCAHO mandates that the hospital must follow its bylaws; it cannot follow only its staff's recommendations. Pawlak also testified that the Board at Silver Cross follows the credentialing committee's recommendation if it is positive. However, it does not independently investigate credentials. Pawlak testified that the JCAHO requires that the Board make an independent examination separate from the staff.

Pawlak further testified that the hospital's rules have the same force as its bylaws. The rules and regulations listed the requirements for podiatrists seeking privileges in 1993 (the year after Dr. Kirchner first applied). Before 1993, applicants had to complete an approved surgical residency. For more advanced category II privileges, the hospital's rules required that the applicant be licensed and have completed a 12-month podiatric surgical residency, be accepted and approved by the American Board of Podiatric Surgery (board certification), and submit documentation of prior performance of procedures including at least 30 operative reports.

Specifically, the 1992 rules provided:

"This category assumes the practitioner has had additional post-graduate surgical training: e.g. completion of approved surgical residency or has become Board Certified by the American Board of Podiatric Surgery, or Board Eligible by the American Board of Podiatric Surgery, and in this instance must submit documentary proof of having performed the surgical procedures to the satisfaction of the Department of Surgery."

The 1993 rules provided:

"Any Illinois licensed podiatrist who has completed a 12 month podiatric surgical residency program accepted by the [American Board of Podiatric Surgery] ABPS and approved by the [Council on Podiatric Medical Education] CPME of the [American Podiatric Medical Association] APMA. In addition, the candidate shall have completed successfully the written eligibility examination. Podiatrists requesting this category must submit documentation of prior performance of requested procedures, including 30 Category II operative reports reflecting procedures performed during the past 12 months."

The rules were amended again before the surgery.

Next, Pawlak testified that Dr. Kirchner did not have a podiatric surgery residency and was not board certified. Pawlak testified that he never reviewed Kirchner's application because the medical staff felt that Dr. Kirchner was qualified for category II privileges through a grandfather clause. Pawlak testified that there was no grandfather clause in the rules. He also stated that grandfathering was reserved for physicians with many, many years of experience and that Kirchner did hot have such experience in 1993. The JCAHO provides that at the discretion of the organization, specific information may differ for the information required for reappointment. Pawlak testified that according to the bylaws and rules, reappointment to the medical staff and continued privileges at Silver Cross are granted only on formal application that occurs every two years. When Kirchner reapplied, he had to submit an application.

Dr. Richard Kusunose

Dr. Richard Kusunose, Frigo's expert podiatrist, testified that he performed 250 procedures a year during his two-year podiatric surgical residency and almost half of those procedures were bunionectomies. He also described the board-certification process, which involves acquiring a certain amount of experience and passing an examination. Dr. Kusunose testified that he reviewed Dr. Kirchner's surgical logs from his primary care residency, which was significantly different from a surgical residency because it was focused on conservative management with very little exposure to foot surgery. Dr. Kusunose testified that Dr. Kirchner's log showed five to six category II procedures related to the foot, and none of them was a procedure done at Silver Cross in 1998. In only one of the procedures did the resident participate more than 50%. Dr. Kusunose stated that Dr. Kirchner had not completed an approved surgical residency in 1992. Dr. Kusunose also stated that Dr. Kirchner did not meet the credentialing requirements for category II privileges in 1993 or 1998. Kirchner needed the podiatric surgical residency and the written exam for board certification.

Dr. Kusunose testified that "grandfathering" is the situation where an applicant who obtained privileges before a change in the prerequisites is not required to satisfy the new requirements "if that's so delineated in the bylaws." Dr. Kusunose reviewed Silver Cross's bylaws and he stated that there is no mention in them of a grandfather clause.

Next, Dr. Kusunose summarized Frigo's care. Frigo developed an infected ulcer on her left foot prior to her October 8, 1998, surgery at Silver Cross. He noted that you would not prescribe an antibiotic for an ulceration, as Dr. Kirchner did, if the ulcer was not infected. Thus, prescribing an antibiotic showed that Dr. Kirchner felt the ulcer was infected. The unhealed ulcer was still present at the time of surgery. This surgery was elective and never should have moved forward in the presence of the ulceration. He noted that it had taken 50 years for the bunion to develop and there was no rush to take care of it now, especially in light of the infection. Further, because Frigo was diabetic, that predisposed her to a greater risk of infection. Dr. Kusunose opined that proceeding with this surgery absolutely breached the standard of care. That was especially true in light of the fact that an earlier procedure on the opposite foot proceeded only after the ulcer healed and no complication occurred there. If Dr. Kirchner had not performed the October 1998 surgery, Frigo never would have had the amputation. The surgical incision here went through the infected ulcer and carried the infection into the wound. There were clear signs of infection within a week after Dr. Kirchner's surgery. Dr. Kusunose testified that everyone agreed this patient had osteomyelitis and that it was caused by the infection that was brought about by the incision through the infected ulcer. The podiatrist should have cultured the wound and drained and X-rayed it, and his failure violated the standard of care.

According to Dr. Kusunose, Dr. Kirchner's use of a single screw in that surgery was inappropriate. The patient weighed 280 pounds and she put weight on the foot when she walked. She was allowed to walk, rather than put on a non-weight-bearing device, and the bone fractured during the first week. Walking caused the fracture and allowing Frigo to walk violated the standard of care. After the fracture, the screw no longer served any purpose and should have been removed.

Dr. Kirchner could not remove the screw because he could not find it, and that was because he did not have the training and experience. The doctor's failure was also a deviation from the standard of care. By the time the screw was removed, the bacteria had had five months to grow. The failure here resulted from Dr. Kirchner's lack of experience and his lack of competence, both in doing the surgery and in not being able to recognize and treat the complications that are learned in a surgical residency.

Dr. Kusunose testified that Frigo should have been admitted to Silver Cross immediately for a team approach of care, with the wound opened up and antibiotics started. No team approach was ordered by Dr. Kirchner and that also violated the standard of care. If that had been done, the likelihood is that the infection would have been controlled. He added that this patient did not have Charcot disease and that none of the doctors that treated Frigo made such a diagnosis. He had no way of knowing if he saw all the materials that the credentialing committee considered. Dr. Kusunose testified that he did not know how the credentialing process was performed at Silver Cross but said the process is fairly standard because hospitals all operate under the same JCAHO standards.

Dr. Paul Kirchner

Dr. Paul Kirchner testified that he did a one-year primary care residency after graduating from podiatry college in 1991. He testified that he did do a surgical residency. Dr. Kirchner testified that he submitted his application for full category II privileges at Silver Cross in 1992 and that is all he submitted. He testified that he had not taken the boards as of October of 1995 and was not board certified in podiatry or podiatric surgery at that time. He still had not done a surgical residency when he performed the procedure on Frigo in October of 1998. Dr. Kirchner testified that he had surgical privileges only at Silver Cross.

Dr. Kirchner testified that the year prior, 1997, he had operated on a bunion on Frigo's right foot. He testified that there had been an ulcer on that foot, but it was resolved with antibiotics under the care of a vascular surgeon before that surgery. The next year, on July 13, Frigo presented with a bunion and a diabetic ulcer on her left foot. When she returned on August 10, the area was red and swollen, which he agreed could be consistent with an infection. On September 22, she still had pain and a blister, and Dr. Kirchner prescribed an antibiotic. Dr. Kirchner testified that he performed the category II elective surgery on October 9, 1998. He placed a screw into the top of the metatarsal. At his deposition, he said Frigo had a diabetic ulcer on that foot on the date of surgery, but he denied this fact at trial. The pathology report showed left foot bunion with diabetic ulcer. Dr. Kirchner testified that ulcers can carry bacteria and that such areas can become infected. Four days after the surgery, there was redness and swelling, which can be consistent with an infection. He believed there was infection at the surgical site. An X-ray on November 6 showed the bone had fractured. Dr. Kirchner stated that he corrected the fracture in a closed reduction. He stated that Frigo had cellulitis, not osteomyelitis. Dr. Kirchner testified that he tried but was unable to remove the screw on February 18, 1999, at Silver Cross.

Dr. Lawrence Mozan

Dr. Lawrence Mozan, Frigo's expert, who was a board-certified surgeon, testified that he analyzed Dr. Kirchner's surgery. Dr. Mozan stated that Frigo had osteomyelitis, which is a bone infection. Dr. Mozan testified that he premised that opinion in part because she was given antibiotics before surgery and that you do not use those unless someone has an infection. He stated that the ulcer was present at the surgery. The infection began with the bacteria in the ulcer and that caused the osteomyelitis. If you cut through the ulcer, you spread the bacteria. The bacteria also gets on the screw, where it cannot be treated. Leaving the screw in, when a patient has an infection, makes it tremendously more difficult to combat the infection. If the screw had been removed and the infection treated earlier, Frigo's foot could have been saved. Dr. Mozan testified that the elective surgery was the cause of Frigo's amputation.

Dr. Carl Bakken

Dr. Carl Bakken, Frigo's board-certified expert in internal medicine, infectious disease and emergency medicine, testified that Frigo had osteomyelitis caused by methicillin-resistant staph aureus (MRSA).*fn1 He opined that the originating event for Frigo's infection was the October 1998 surgery. Dr. Bakken testified that, after the signs of infection, the X-ray showed the fracture and the bleeding caused by it, which in turn became a place where bacteria could grow and led to the infection spreading quickly. No antibiotic was used. Dr. Bakken opined that the originating event for the infection was the surgery performed in the presence of the ulcer.

Arthur Shorr

Arthur Shorr, Frigo's board-certified expert in health care administration, described how a hospital is managed. Shorr testified that a hospital must be accredited by the JCAHO, which sets the minimum acceptable way to run a hospital. The hospital must have corporate bylaws and medical staff bylaws approved by the hospital board. Shorr testified that the board of trustees has legal responsibility for the hospital. Shorr testified that the JCAHO has a section on credentialing and that anyone who wants to join the hospital staff must know what the requirements are. Shorr stated that there are criteria for credentialing. When the board is invited to give privileges, the board can rely on the fact that the hospital rules are consistent with the JCAHO's rules, which maximizes patient safety. The chief executive officer reports to the board on credentialing and cannot delegate that duty. Privileges are ultimately granted by the board.

Next, Shorr opined that Silver Cross did not act reasonably when it initially granted category II privileges to Dr. Kirchner. Silver Cross ignored its bylaws. Shorr testified that Dr. Kirchner did not meet the minimum requirements. He was qualified for category I privileges at that time, but category II privileges assume that the practitioner has had additional postgraduate surgical training. Dr. Kirchner spent a year in a residency, but Shorr would not categorize the training as a surgical residency experience because it was more medical than surgical. The hospital's credentialing rule contains three examples of things that might qualify as such additional surgical training. The bylaw does not say that such additional training must be more than modest (Dr. Kirchner had modest surgical training in his residency), but the three examples provide clear guidelines.

Shorr testified that Dr. Kirchner's application for privileges never should have been considered by the board because the application was missing this basic information. Shorr stated that the 1992 rules did not say they required a 12-month surgical residency - that did not appear until the next rule change. Shorr testified that Dr. Kirchner's application should have been sent back to the credentials committee because the rule required definitive training in surgical podiatry. For recredentialing later, Dr. Kirchner required a surgical residency and passing the board-certification exam as a prerequisite for category II privileges. The medical staff had concluded those requirements were the way to maximize patient safety. Dr. Kirchner never should have been credentialed, pursuant to the bylaws, and he could not do surgery without being credentialed. Shorr stated that the JCAHO's MS section 5 said the information required for reappointment may differ from the information required for appointment. In addition to information reviewed the first time, there may be additional information that is a classical industry-wide interpretation. However, the applicant has to meet the credentials in place when he applies. Here, this podiatrist never met the tightened standards. His reappointment applications never indicated that he met the bylaws' requirements.

Shorr testified that he was familiar with grandfathering, saying "it's a common practice when applied correctly." If a physician is credentialed, and the staff later imposes additional requirements, that physician does not have to meet the new requirements. But the presumption is that the doctor was credentialed correctly in the original credentialing. If the first credentialing is wrong, you do not grandfather someone who did not qualify under the old rules.

Jean Frigo

Jean Frigo testified that she was born in 1948 and that she had been a nurse for 30 years. She testified that she saw Dr. Smith, now her managing doctor, because of the first ulcer on her right bunion and that ulcer was resolved before Dr. Kirchner performed that surgery. She was back to her job as a critical care nurse two weeks after that. She then saw Dr. Kirchner again for her left foot. This time the ulcer was still there when she went for the surgery on October 8, 1998. Frigo testified that she went to Silver Cross because that is where Dr. Kirchner worked. She was not put on crutches after the surgery until after the bone fractured. The pain and swelling in the foot continued and she finally called Dr. Smith, who told her the hardware had to come out. Frigo testified that her foot was amputated on August 30, 1999. She has not returned to work. Frigo testified that she was not told of Dr. Kirchner's lack of credentials.

Dr. Robert Eilers

Dr. Robert Eilers, Frigo's physiatrist, testified that he saw her in July of 1999. The diagnosis was left lower extremity bunion surgery complicated by a staph infection and possible Charcot disease. Dr. Eilers testified that Frigo did not have Charcot disease. He described the amputation done on February 19, 1999, and stated that Frigo required the amputation because of a mid-foot bone infection (osteomyelitis). Dr. Eilers testified that Frigo initially had a good blood flow and good profusion in the leg and that she did not have diabetic vascular disease or nerve disease. Dr. Eilers testified that a nurse cannot work in an intensive care unit if she cannot bear weight and walk. Dr. Eilers testified that Frigo would have difficulty returning to work as a critical care floor nurse.

Dr. Brent Smith

Dr. Brent Smith, Frigo's general physician, testified that he examined the ulcers and confirmed that she had osteomyelitis. He also testified that she would not be able to return to work as a critical care nurse.

Dr. Irving Rudman

Dr. Irving Rudman, Silver Cross's former vice-president of medical affairs, testified that a 12-month surgical residency contains more surgery than does a 12-month primary care podiatric residency. There would be more education and study involving conditions that lead to surgery of the foot. Category II privileges involve surgery to the foot, including internal fixation. Dr. Rudman knew in 1995 that Dr. Kirchner was not board certified and had not completed either a 12-month surgical residency or the written board-eligibility exam. Dr. Rudman testified that he had no reason to doubt the statement by another podiatrist that 250 surgical opportunities would be available to a resident enrolled in a surgical residency program. He also stated that he saw nothing in the bylaws that applied to grandfather exemptions for podiatrists who did not meet the written prerequisites.

Silver Cross's Case

Dr. Benjamin Lipsky

Dr. Benjamin Lipsky, Silver Cross's internal medicine and infectious diseases expert, testified that Frigo suffered a fracture and developed cellulitis, which was treated successfully with antibiotics. He opined that her condition was compatible with Charcot osteoarthropathy,*fn2 with a foot infection as her secondary problem that was dealt with by antibiotics. The bones lose mineralization and fracture. Charcot osteoarthropathy occurs in patients with severe neuropathy where they cannot feel pain or pressure and occurs in the absence of any break in the skin. Dr. Lipsky testified that he believes her condition was not very compatible with osteomyelitis. Most patients who get osteomyelitis get it from an ulceration. He agreed she had an infection and that her diagnosis in February was osteomyelitis.

Dr. David Armstrong

Dr. David Armstrong, an expert who was board certified in podiatry, opined that Frigo was an appropriate candidate for a bunionectomy. He testified that he believed she had neuropathy, because a diabetic with ulcers has neuropathy in almost every case. He thought her ulcer was healed, but said surgery was appropriate even if it was not healed because she had a high risk of developing another wound due to the bunion deformity. Her ulcer had healed by the time of the surgery. Dr. Armstrong testified that Frigo did not have an infected ulcer. Dr. Armstrong testified that Dr. Kirchner's diagnosis was osteomyelitis when he removed the screw, and he did not mention Charcot disease. Dr. Armstrong opined that Dr. Kirchner's follow-up care met the standard of care and that treating the cellulitis with antibiotics was appropriate. The rapid disorganization of the bone in her foot was characteristic of Charcot disease and not osteomyelitis. Dr. ...

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