Jury Holds Hospital Liable For Granting Podiatrist Unearned Surgical Privileges

In October 1998, podiatrist Paul Kirchner performed elective bunion surgery on Jean Frigo's left foot at Silver Cross Hospital and Medical Center, cutting directly through an active diabetic ulcer already present at the surgical site. The incision carried bacteria from the open sore into the wound.

After the surgery, Kirchner fixed the bone with a single screw in a patient who weighed 280 pounds, then allowed her to bear weight on the foot. The screw failed and the bone fractured within a week. Kirchner did not locate or remove the broken screw for five months. The infection at the surgical site progressed to osteomyelitis, a bone infection, and on August 30, 1999, Frigo's foot was amputated.

Frigo sued Kirchner and the hospital for malpractice, then amended her complaint after learning in discovery that Silver Cross had granted Kirchner Category II surgical privileges despite his never meeting the hospital's own credentialing rules. In 1992 those rules required additional post-graduate training: a completed surgical residency, or board certification or board eligibility in podiatric surgery. Kirchner had finished a one-year primary care residency and was neither board certified nor board eligible. When the hospital tightened the requirements again in 1993, adding a written exam and a minimum case count, Kirchner still fell short, and the medical staff recommended him for privileges anyway under a 'grandfather' exception that did not exist in the hospital's bylaws. Kirchner settled with Frigo for $900,000 before trial, leaving Silver Cross to face the negligent credentialing claim alone.

The case went to a jury in the Circuit Court of Cook County. Frigo's healthcare administration expert testified that Silver Cross had ignored its own bylaws twice, in 1992 and again in 1998; the hospital's own healthcare administration expert answered that it is common to grandfather physicians rather than send them back for formal training, while conceding he had found no grandfathering provision in the Silver Cross bylaws. On August 26, 2004, the jury sided with Frigo and awarded $7,775,668.02 in damages. The trial court then credited Silver Cross with the $900,000 Kirchner had already paid, entering judgment against the hospital for $6,875,668.02.

Silver Cross appealed, arguing that its physician credentialing files were shielded by the Illinois Medical Studies Act and that the Hospital Licensing Act immunized its privileging decisions. The Appellate Court of Illinois, First District, rejected both arguments and affirmed the judgment in full on September 20, 2007. The court held that a hospital's own bylaws and Joint Commission accreditation standards, generated in the ordinary course of business, are not protected peer review material, and that the licensing act's immunity applies only to physicians harmed by the peer review process, not to patients hurt by a hospital's own negligent decisions. The ruling is credited with establishing negligent credentialing as an independent cause of action under Illinois law, tracing back to the institutional negligence doctrine first recognized in Darling v. Charleston Community Memorial Hospital.

The appellate opinion lists Christopher T. Hurley and Mark R. McKenna of Hurley McKenna & Mertz among counsel of record for Frigo, appearing of counsel with appellate counsel Michael W. Rathsack. Silver Cross then asked the Illinois Supreme Court to take the case. That court denied leave to appeal in January 2008, and the $6,875,668.02 judgment stood as entered.