Professional Negligence Law Reporter

A Wisconsin appellate court held that a surgery center may be liable for the negligent credentialing of a surgeon who allegedly violated a patient’s informed consent for a breast augmentation procedure.

Keri Anne Connaughty underwent a breast augmentation procedure performed by physician John Siebert, who allegedly placed different-sized breast implants than what Connaughty had selected. Connaughty and her husband sued Transformations Surgery Center, Inc., alleging it had negligently hired or granted practice privileges to Siebert. The plaintiffs also claimed that the defendant had negligently credentialed Siebert based on his history of misconduct in New York, which allegedly included having a sexual relationship with a patient and falsifying a report of an operation. The trial court granted summary judgment for the defense, holding that the connection between Siebert’s alleged misconduct and his violation of Keri Anne’s informed consent was too attenuated to sustain the negligent credentialing claim.

Reversing, the appellate court found that in a negligence action, a plaintiff must prove duty, breach, causal connection, and actual damages. In a negligent credentialing claim, the court said, the causation element includes proving the doctor’s negligence was a cause in fact of the patient’s injury and the negligent credentialing was a cause in fact of the physician’s negligent act. Here, the court noted, it cannot be said as a matter of law that it was not reasonably foreseeable that the plaintiff’s injuries resulting from the violation of her informed consent would result from the credentialing of a physician with an alleged record of unethical and dishonest conduct. The court added that Siebert’s alleged ethical misconduct could reasonably bear on his truthfulness and ethical character in handling a patient’s informed consent.

The court rejected the defendant’s argument that a court should look only to technical competence, not ethical concerns. Citing case law, the court said that state regulations obligate hospitals to extend medical staff privileges only to physicians who are legally, professionally, and ethically qualified.

Consequently, the court remanded.

Citation: Connaughty v. Transformations Surgery Ctr., 2022 WL 16641915 (Wis. Ct. App. Nov. 3, 2022).

Plaintiff counsel: AAJ member Robert Gingras, Milwaukee, and AAJ member Riley Leonard, Madison, Wis.