Frigo v. Silver Cross Hosp.
Fourth Division
September 20, 2007
No. 1-05-1240
JEAN FRIGO,
Plaintiff-Appellee,
v.
SILVER CROSS HOSPITAL AND MEDICAL
CENTER,
Defendant-Appellant.
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Appeal from the
Circuit Court of
Co ok County.
No. 00 L 11559
Ho no rable
Donald J. O’Brien, Jr.,
Judge Presiding.
PRESIDING JUSTICE NEVILLE delivered the modified opinion of the court:
Defendant, Silver Cross Ho spital and Medical Center (S ilver Cro ss), 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 do ctor to o perate on Frigo ‘s foo t and culminated in her foot being
amputated. On appeal, Silver Cross presents the following issues for review: (1) whe ther Frigo ‘s
action was barred by the statut e of limitat ion because the negligent credentialing claim raised in the
first amended complaint did not relate back to t he allegat ions in the original complaint; (2) whether
the negligent credentialing claim was barred by sect ions 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 neg ligent credentialing claim was barred by the Hospital Licensing Act (210 ILCS
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85/10.2 (Wes t 2000)); (4) whet her Frigo failed to p rove tha t 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 credent ialing 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 Dar ling v. Charleston Community Memorial Hospital, 33 Ill. 2d
326, 331 (1965).
BACKGROUND
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 t hat Silver Cro ss impro per ly managed and
maint ained the hospital. Through d iscovery, Frigo lea rned that Silver Cro ss 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 t hat she would not have been injured if the ho sp ital had no t vio lat ed its dut y.
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The Trial
Before the tr ial, Dr. Kirchner sett led with Frigo for $900,000. Frigo proceeded t o t rial 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 Cro ss’s president and chief execu tive officer , t est ified t hat the hospital’s
board of directors (Bo ard) had t he final say in issuing credentials to physicians and t hat the duty was
nondelegable. 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 applicat ion is r eviewed by the credentials
committee, which forwards its recommendation to the medical st aff execu tive committee , which in
turn makes its recommendation to the Board. Paw lak test ified t hat the Bo ard does no t usua lly 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. S ilver Cross, as part of the
accreditation process, agrees to abide by the JCAHO standards . The JCAHO standards on
credentialing require the hospital Board to t ake into account the medica l staff’s recommendat ions and
the hospital’s bylaws. The JCAHO’s section MS 5.10 pro vides:
“The governing body appoints and r e-appo ints to the Medical St aff
and grants initial, renewed or revised clinical privileges based on the
Medical Staff’s recommendations in accordance with the Bylaws,
Rules and Regula tions and Po licy of the Medical Staff and o f the
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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 test ified that
the Bo ard a t Silver Cross follows the credentialing commit tee’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 furt her test ified t hat the hospital’s rules have t he 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 podiat ric su rgical res idency, be accepted and approved by the American
Board of Po dia tric 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
Pod ia tr ic Surgery, or Board Eligible by the American Board of
Po dia tric Surge ry, and in this instance must submit documentary proof
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of having pe rfo rmed the surgical procedu res to t he satisfact ion o f the
Department of Surgery.”
The 1993 rules provided:
“Any Illinois licensed podiatr ist who has comple ted a 12 month
po dia tric surgical residency program accepted by the [American
Board of Po dia tric Surgery] ABPS and approved by the [Council on
Po dia tric Medical Education] CPME of the [Amer ican Podia tric
Medical Association] APMA. In addition, the candidate sha ll have
completed successfu lly the written eligibility examination. Podiatrists
request ing this category must submit documentation of prior
performance of requested procedures, including 30 Category II
operat ive reports reflecting procedu res perfo rmed dur ing 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 o f the
organiza tion, specific information may differ for the information required for reappointment. Pawlak
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testified that according to t he bylaws and rules, reappointment to the medical staff and continued
privileges at Silver Cro ss 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 a lso described the board-certification process, which involves acquiring a certain
amount of exper ience and passing an examination. Dr. Kusunos e t e st ified 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. Kusuno se t est ified t hat Dr. Kirchner’s log showed five to six category II procedures
related to t he 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 t hat Dr. Kirchner
had no t complet ed an approved surgica l 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 prerequ isites is not required t o sat isfy the new requirements “if tha t ‘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
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foot prior to her Octo ber 8, 1998, surgery at Silver Cross. He noted that you would not prescribe an
antibio tic for an ulceration, as Dr. Kirchner did, if the ulcer was not infected. Thus, prescribing an
antibio tic showed that Dr. Kirchner felt the ulcer was infect ed. The unhea led ulcer was st ill present
at the time of surgery. This surgery was elective and never should have moved forward in the
presence of the ulceration. He no ted t hat it had taken 50 years fo r the bunion to develop and there
was no rush t o t ake care o f it now, especially in light o f the infection. Further, because Frigo was
diabetic, that predisposed her to a gre at er r isk of infect ion. Dr. Kusuno se opined t hat proceed ing
with this surgery absolut ely breached the standard of care. That was especially true in light o f the fact
that an earlier p ro cedure on the oppos ite foot proceeded o nly after the ulcer healed and no
complication occurred there. If Dr. Kirchner had not performed the October 1998 surgery, Frigo
never would have had t he ampu tat ion. The surgical incision here went through t he infected u lcer and
carried the infection into the wound. There were clear signs o f infection within a week after Dr.
Kirchner ‘s surge ry. Dr. Kusunose testified that everyone agreed this pat ient had o steomyelitis and
that it was caused by the infection that was brought about by the incision through the infected ulcer.
The podiat rist should have cultured t he wo und and drained and X-rayed it, and his failure violated
the standard of care.
Acco rding to Dr. Kusunose, Dr. Kirchner’s use of a s ingle screw in that surgery was
inappropriate. The pat ient 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 frac tured
dur ing 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 purpo se and should have been removed.
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Dr. Kirchner could no t remove t he screw because he could no t find it, and t hat was because he d id
not have t he t raining and exper ience. The doctor ‘s failure was also a deviat ion 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 exper ience 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 surgica l residency.
Dr. Kusunose testified that Frigo should have been admitted to Silver Cross immediately for
a team approach of care, with the wo und o pened up and antibiotics started. No team approach was
ordered by Dr. Kirchner and t hat also violated t he st andard of care. If that had been do ne, the
likelihood is that the infection would have been controlled. He added that this pat ient did no t have
Charcot disease and that none of the docto rs 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 no t know how t he credentialing process was per formed 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 cat egory II pr ivileges at Silver Cross in 1992 and that is all he
submitt ed. He t est ified t hat he had not taken the boards as of October of 1995 and was not board
certified in podiatry or podiatric surgery at that t ime. 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.
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Dr. Kirchner testified that the year prior, 1997, he had operated o n 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
swo llen, which he agreed could be cons istent with an infection. On September 22 , she st ill had pa in
and a blister, and Dr. Kirchner prescribed an antibiotic. Dr. Kirchner testified that he perfo rmed the
category II elective surgery on October 9, 1998. He placed a screw into the top o f the met at arsal.
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
surge ry, there was redness and swelling, which can be consistent with an infection. He believed there
was infection at the surgic al s ite. 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 boa rd-certified surgeo n, t est ified t hat he
analyzed Dr. Kirchner’s surgery. Dr. Mo zan s t ated t hat Frigo had o steomyelitis, which is a bone
infection. Dr. Mozan testified that he premised that opinion in part because she was given antibiot ics
before surgery and that you do not use those unless someone has an infection. He stated t hat the
ulcer was present at the surgery. The infection began with the bac teria in the u lcer and that caused
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the osteomyelitis. If you cut through t he ulcer, you spread the bac teria. The bacteria also gets on
the screw, where it cannot be treated. Leaving the screw in, when a patient has an infection, makes
it tremendous ly more difficult to combat the infect ion. If the screw had been removed and the
infection treat ed earlier, Frigo’s foot could have been saved. Dr. Mo zan t est ified t hat 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, test ified t hat Frigo had o steomyelitis caused by methicillin-resistant staph aureus
(MRSA).1 He o pined t hat the originating event for Frigo ‘s infection was t he Oc tober 1998 surge ry.
Dr. Bakken testified that, after the signs of infection, the X-ray showed the fracture and the bleed ing
caused by it, which in turn became a place where bacteria could grow and led to the infection
spread ing qu ick ly. No antibio tic 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 Shor r, Fr igo’s board-certified expert in health care administrat ion, 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 test ified that the board of trustees has legal
responsibility for the hospital. Shorr test ified that the JCAHO has a section on credentialing and that
1Methicillin-resistant staph aureus is a bacteria.
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anyone who wants to join the hospital staff must know what the requirements are. Shorr stated that
there are criter ia 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 pat ient
safety. The chief executive officer report s to t he board on credentialing and cannot delegate that
duty. Privileges are ultimately granted by the board.
Next, Shorr opined that S ilver 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 t ime, but
category II privileges assume that the practitioner has had additional postgraduat e 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 su rgical. 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 t han 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 applicat ion was missing this basic information. Shorr stat ed that the 1992
rules did not say they required a 12-month su rgical residency – t hat did no t appear until the next rule
change. Shor r testified that D r. Kirchner’s applicat ion 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 res idency and passing the board-certification exam as a prerequisite
for category II privileges. The medical staff had concluded those requirement s we re the way to
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maximize patient safety. Dr. Kirchner never should have been credentialed, pursuant to the bylaws,
and he co uld not do surgery without being credentialed. Shorr stated that the JCAHO’s MS section
5 said the informa t ion required for reappointment may differ from the information required for
appointment. In addit ion to informat ion reviewed the first time, there may be additional information
that is a classical industry-wide interpretat ion. However, the applicant has to meet the credentials in
place when he app lies. He re, t his podiat rist never met t he t ightened standards. H is reappo intment
applications never indicated that he met the bylaws’ requirements.
Shorr test ified t hat he was familiar with grandfathering, saying “it’s a common practice when
applied correctly.” If a physician is credentialed, and t he staff later imposes additional requirements,
that physician do es no t have t o mee t the new requ irement s. But the presumption is that the doctor
was credentialed co rrect ly in the o riginal 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 bo rn in 1948 and that she had been a nur se fo r 30 year s. She
testified that she saw Dr. Smith, now her managing doc tor , because o f the first ulcer on he r r ight
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 u lcer was st ill there when she went for the surgery on October 8, 1998. Frigo test ified
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 to ld her the hardware had to come out. Frigo testified that her
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foot was amputated o n August 30, 1999. She has not returned to wo rk. Frigo testified that she was
not t old of Dr. Kirchner’s lack of credentials.
Dr. Robert Eilers
Dr. Robert Eilers, Frigo’s physiatrist, testified that he saw her in Ju ly 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 t he ampu tat ion because o f a mid-foo t bone
infection (osteomyelitis). Dr. Eilers tes t ified tha t 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 o steomyelitis. He also test ified t hat 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 podia tric
residency. There would be more education and study involving conditions that lead to surgery of the
foot . Cat ego ry II privileges involve surgery to the foot , includ ing internal fixat ion. Dr. Rudman
knew in 1995 t hat Dr . Kirchner was no t board cer tified and had no t completed either a 12-month
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surgical residency or the written board-eligibility exam. Dr. Rudman t est ified t hat he had no reason
to doubt the st atement by another podiatrist that 250 surgical opportunities would be available to a
resident enrolled in a surgical residency prog ram. He also stated t hat he saw no thing 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, test ified
that Frigo suffered a fracture and developed cellulitis, which was t reated successfu lly with antibiotics.
He opined that her condition was compat ible wit h Charco t ost eo ar thropa thy, 2 with a foot infection
as her secondary problem that was dealt with by antibiot ics. The bones lose mineralizat ion and
fracture. Charcot osteoarthropathy occurs in patients with severe neuropathy where they cannot feel
pa in or pressure and occurs in the absence of any break in the skin. Dr. Lipsky tes tified t hat he
believes her condition was not very compatible with osteomyelitis. Most pat ients who get
o st eomyelit is ge t it from an ulcerat ion. He agreed she had an infect ion 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
2 Dr. Lipsky explained that Charco t o steoarthro pathy is “a process where t he bones lose
mineralization, the joints lose their inherent structure, bones fracture, joints sublux or dislocate
and eventually the normal architecture of the foot is lost.”
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an appropr iat e candidat e fo r a bunionect omy. He t estified that he believed she had neuropa thy,
because a diabetic with ulcers has neuropathy in almost every case. He thought her ulcer was healed,
but said surgery was app ropr iat e even if it was not healed because she had a high risk of developing
another wound due to t he bunion deformity. Her ulcer had healed by the time of the surgery. Dr.
Armst rong testified that Frigo did not have an infected ulcer. Dr. Armstrong testified that Dr.
Kirchner ‘s diagno sis was os teomyelitis 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
treat ing the cellulitis with antibiotics was appropriate. The rapid disorganiza tion o f the bone in her
foot was charact eristic o f Charco t disease and no t o steomyelitis. Dr. Armstrong testified that
different antibiot ics would not have made a difference . Dr . Armst rong also st at ed that the de lay in
removing the screw did not violate the standard of care. Dr. Armstro ng testified that Charcot disease
caused the ampu tat ion.
Dr . Jo seph Lent ino
Dr. Joseph Lentino, a specialist in infectious disease, testified that the Trovan given by Dr.
Kirchner was effective aga inst MRSA, that the patient had Charcot disease, and that she had an
earlier episode of osteomyelitis. Dr . Lent ino testified t hat the d rug o f cho ice for MRSA was
Vancomycin, and he believed that Frigo did have osteomyelitis.
Dr. David Benfer
Dr. David Benfer, defendant’s healthcare administration expert, described some of the
documents typically submitted when applying for credentials and the process. He t est ified t hat the
JCAHO ‘s guidelines prevent hospitals from varying the credentialing pro cedure to any extent. Dr.
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Benfer test ified t hat there is an expect at ion that institutions will meet t he JCAHO’s standards.
Privileges must be granted co nsis tent wit h the bylaws. The chief execu tive officer is responsible for
seeing that credentialing is done in accordance with the bylaws. Silver Cross’s chief executive officer
delegated that duty, but it remained his responsibility. Dr. Benfer stated t hat Pawlak, Silver Cro ss’s
chief execut ive officer , sa id he was no t aware t hat a podiatrist had to have a 12-month surgical
residency and complete the written eligibility exam for board certification. It is clear that the chief
execut ive officer did not know what the bylaws required for po diatrists. Pawlak said that he did not
investigate whether credentials were being granted in accordance with Silver Cross’s bylaws. Neither
the chief executive officer nor the hospital’s staff investigated Dr. Kirchner’s credentials. In addit ion,
Dr. Benfer reviewed the 1992 privilege application card. When category II privileges are requested,
the applicant must submit evidence of additional postgraduate surgical training. Dr. Benfer opined
that does not require a 12-month surgical training. The application gives a series of examples of such
training, but does not specifically state that applicants must complete a certain 12-month experience.
The applicant simply had to show such training. Dr. Benfer testified that he believed that Dr.
Kirchner complied with the prerequ isites for t he 1992 catego ry II surgical credentials.
Dr. Benfer testified that Dr. Kirchner had completed a primary care residency. Dr. Benfer
also testified that the credentialing requirements in effect at that time included examples of
po stgraduate t raining using the words “completion of an approved surgical residency,” rather than
just any experience with surgery. After 1993 , t he requirements fo r category II pr ivileges co uld not
have been clearer. He did not know if Kirchner met t he 12 -month surgical residency requirement
imposed at that time or 1998.
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Next, Dr. Benfer testified that recredentialing occurs every two years , pursuant to t he
JCAHO’s standards. That assu res the general public and the inst itution that there is ongo ing
monito ring. Benfer op ined that there is no need for the doctor to go back and meet formal education
requirements like additional residencies. He also opined that the new 12-month surgical residency
wo uld not be imposed on someone like Dr. Kirchner, who had already been credentialed. Dr. Benfer
testified that it is ve ry common to grandfa ther individua ls so they do not have t o r eturn for a t raining
program. He said it wo uld be unfair to require a doctor to go back to schoo l for two o r three years,
so grandfat hering became common. Dr. Benfer stated t hat he did no t find a grandfat hering provision
in the bylaws.
The Jury Verd ict and Pos ttrial Mo tions
After the presentation of evidence, the jury was instruct ed that plaintiff claimed Silver Cross
“failed to exercise ordinary care in granting Category 2 surgical privileges to Paul Kirchner, D.P.M.,
which resulted in Dr . Kirchner ‘s negligent treatment o f the plaintiff. The plaintiff further claims that
the foregoing was a proximate cause of her injuries.” The jury was also instructed t hat if it decided
Silver Cross was guilty of that conduct, then it was to “consider whether podiatrist Paul Kirchner was
professionally negligent.” On August 26, 2004, the jury returned a verdict for Frigo and awarded her
$7,775,668.02 in damages.
On November 24, 2004, Silver Cross filed a posttrial motion arguing that: (1) Frigo ‘s action
was barred by the stat ute o f limitation because the negligent credent ialing claim raised in the first
amended complaint did not relate back to t he allegation in the original complaint; (2) Fr igo ‘s negligent
credentialing claim was ba rred by the Medical S tud ies Act; (3) Frigo ‘s neg ligent credentialing claim
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was barred by the Hospital Licensing Act; (4) Frigo failed to prove that Silver Cross was negligent
in granting Dr. Kirchner category II surgical privileges; and (5) the trial court denied Silver Cross a
fair trial when it instructed the jury with IPI Civil (2006) No . 30.23. The mot ion was denied. The
trial court credited S ilver Cross with the $900 ,000 paid in the settlement by Dr. Kirchner before t rial,
resulting in a net judgment of $6,875,668.02.
ANALYSIS
We begin our analysis with Silver Cross’s argument that the trial court erred when it denied
the hospital’s motion for judgment no twithstanding t he verdict . A judgment notwithstanding t he
verdict is to be entered only when all the evidence, viewed in the light mo st favo rable to the
nonmovant, so ove rwhelmingly favors t he movant that no cont rary verdict could st and based on t he
evidence. McClure v. Owens Co rning Fiberglas Corp., 188 I ll. 2d 102, 132 (1999 ). In deciding
whether to grant such a judgment, the t rial court may not reweigh t he evidence and set aside the
verdict simply because a jury could have drawn different conclusions or inferences from the evidence
or because it fee ls other possible results may have been far more reasonable. McClure, 188 Ill. 2d
at 132 , quo ting Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). Likewise, a reviewing court may
not usurp the role of the jury and substitute its own judgment on factual questions fairly submitted,
tried, and det ermined from evidence which did not overwhelmingly favor either position. McClure,
188 Ill. 2d at 132. Therefore, appellate court s apply a de novo standard of review when reviewing
dec isions on motions for judgments notwithstanding the verdict. McClure, 188 Ill. 2d at 132, quo ting
Maple , 151 Ill. 2d at 453.
I. St atute o f Limitat ions
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First , Silver Cross argues that the t rial court erred in denying its mot ion for a judgment
notwithstanding the verdict because Frigo’s negligent credentialing claim is barred by the two-year
statute of limitations and the four-year stat ute of repose. Specifically, Silver Cross contends that
although Frigo’s original complaint was timely filed, the allegations of negligent credentialing were
not made until Frigo filed her amended complaint, which was more than two years after her cau se of
action accrued and more than four years after her last visit to Dr. Kirchner. Silver Cross argues that
the allegat ions o f negligent credentialing did no t relate back t o Frigo ‘s o riginal, timely filed complaint,
which only alleged that Dr. Kirchner was negligent in providing surgical and postsurgical care. Frigo
concedes that the first amended complaint was filed after the running of the two-year statute of
limitat ions, but argues that the trial court correct ly determined that the allegations in the first amended
complaint related back to t he allegations in Frigo’s original complaint that were timely filed.
“The application of statut es of limitations is a question of law that is evaluated according to
a de novo standard of review.” First Baptist Church of Lombard v. Toll Highway Authority, 301 I ll.
App. 3d 533, 540 (1998), citing Tatara v. Peterso n Diving Service, 283 Ill. App. 3d 1031, 1037
(1996). The statute of limitations for a medical malpractice action is found in section 13-212(a) of
the Code of Civil Procedure (Code), which provides:
“[N]o action for damages for injury or death aga inst any
physician *** arising ou t of pat ient care shall be brought more than 2
years after the date on which the claimant knew, or through the use of
reasonable diligence shou ld have known, or received not ice in writ ing
of the existence of the injury or death for which damages are sought
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in the action, whichever of such date occurs firs t, but in no event sha ll
such act ion be brought more than 4 years after the date on which
occurred the act or omission or o ccurrence alleged in such action to
have been the cause of such injury or death.” 735 ILCS 5/13-212(a)
(West 2000).
Frigo acknow ledges that her first amended complaint was filed after the exp irat ion o f the
statute of limitations. However, Frigo contends that the neg ligent credentialing allegat ions in the first
amended compla int are not time-barred because the allegations “relate back” to the original
complaint, which named Silver Cross as a party defendant. Section 2-616(b), which go verns
amendments to pleadings filed after the statute of limitations period has expired, provides:
“(b) The cause o f act ion *** set up in any amended p leading
sha ll not be barred by lapse of time under any statut e or contr act
prescribing or limiting the t ime within which an act ion may be brought
or right asserted, if the time prescribed or limited had not expired
when the original plead ing was filed, and if it sha ll appear from the
original and amended pleadings that the cause of action asserted ***
in the amended pleading grew out of the same transaction or
occurrence set up in the original plead ing ***.” 735 ILCS 5/2-616 (b)
(West 2000).
Section 2-616 (b) makes it clea r that any cause o f act ion se t up in an amended plead ing shall not be
time-barred and shall be said to relate back to the da te o f the filing of the or iginal pleading so long
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as (1) the original pleading was timely filed, and (2) it appears from the original and amended
pleadings that the cause o f ac tion asser ted grew out of the same t ransact ion o r occur rence set up in
the original pleading. 735 ILCS 5/2-616(b) (West 2000); see also Grove v. Carle Foundation
Hospital, 364 Ill. App. 3d 412, 418 (2006).
In Zeh v. Wheeler, 111 Ill. 2d 266, 278 (1986), our supreme co ur t no ted a t rend and held that
Illinois court s are liberal in allowing amendments to pleadings that relate back after the statute of
limitat ions has expired. We not e that “[ t]he purpose o f section 2-616(b) is to insure fairness to
litigants rather than to unduly enhance the technical considerations of common law pleadings.”
Castro v. Bellucci, 338 Ill. App. 3d 386, 390-91 (2003), citing Sompolski v. Miller, 239 Ill. App. 3d
1087, 1090 (1992). To furt her this purpo se, appellate courts have liberally const rued t he
requirements of section 2-616(b) in favor of hearing a plaintiff’s claim. Bellucci, 338 Ill. App. 3d at
391 , citing Sompolski, 239 Ill. App. 3d at 1090. ” ‘Medical malpractice plaintiffs, in particular, are
afforded every reasonable oppo rtunity to establish a case, and to this end, amendments to pleadings
are liberally allowed t o enable the ac tion to be heard on the merit s ra ther than brought to an end
because of procedural technicalities.’ ” Bellucci, 338 Ill. App. 3d at 391, quo ting Avakian v.
Chulengarian, 328 Ill. App. 3d 147, 154 (2002).
“Central to this inquiry is whether the record reveals that the defendant was on notice, before
the expirat ion o f the [limitat ions] per iod, o f the fact s upon which the claim set ou t in the amended
complaint is based.” Bellucci, 338 Ill. App. 3d a t 391 , citing Cammon v. West Suburban Hospital
Medical Center, 301 I ll. App. 3d 939, 946 (1998), and Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44,
46-48 (1991 ). “In determining whet her the subsequent pleading relates back to the filing of the initial
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pleading, the focus is not on the nature of the causes of action, but on the identity of the transaction
or o ccurrence.” Bellucci, 338 Ill. App. 3d at 391, citing Zeh, 111 Ill. 2d at 272-73. “However, the
cause of act ion asser ted in the later complaint need not be identical to o r substant ially the same as the
claim raised in the original pleading.” Bellucci, 338 I ll. App. 3d a t 391 , citing Weber v. Cueto, 253
Ill. App. 3d 509, 516 (1993). Relation back will be allowed where the defendant received adequate
notice of the occurrence or transaction that is the basis of the plaintiff’s claim. Zeh, 111 Ill. 2d at 279.
The rat ionale fo r this rule is that a defendant will not be prejudiced so long as his attention has been
directed, within the limitations period, to the facts that form the basis of the claim asserted against
him. Zeh, 111 Ill. 2d at 273.
We find McArthur v. St. Mary’s Hospital of Decatur, 307 Ill. App. 3d 329 (1999), and Marek
v. O.B. Gyne Specialists, II, S .C., 319 Ill. App . 3d 690 (2001) , inst ruct ive. In McArthur, t he plaintiff
sued a hospital and several doctors for the death of a baby due to complications during the de livery.
In the original complaint, the only allegation made against the hospital was that it ” ‘[f]ailed to
implement and/or enforce a policy requiring a permanent radiographic image of all ultrasound
sonogram examinations be maintained.’ ” McArthur, 307 Ill. App. 3d at 331. The allegations against
other defendants included the failure to co rrectly read the sonograms and X-rays taken and the failure
to diagno se the deceased infant’s hydrocephalus. First and second amended complaints were
subsequently filed wit h the same sole allegation against the hospital. McArthur, 307 Ill. App. 3d at
331-32. Discovery pro ceeded and during the depo sition of one o f the defendant’s radiologists, it was
discovered that the radiologist never evaluated the X-rays at issue because one o f the hospital’s
technicians had that responsibility. McArthur, 307 Ill. App. 3d a t 332 . Though out side t he
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limitat ions period, the plaintiffs moved for leave to file a third amended complaint in which seven new
allegat ions were added aga inst t he hospital, relat ing to t he neg ligent interpretation of the sonogram
and X-rays by one of the hospital’s agents on a date different from the date specified in earlier
complaints. The trial court granted t he mot ion.
The hospital filed a mot ion and was granted summary judgment, arguing that the new
allegat ions set forth different conduct by different people than in the original pleadings and were
therefore time-barred. McArthur, 307 Ill. App. 3d at 333. The appellate court reversed finding from
the beginning o f the litigat ion that the hospital was aware that the plaint iffs were asse rt ing negligence
in connect ion with the read ing of the sonograms and X-rays and that these claims had already been
asserted against certain agents of the hospital. The cou rt found neither prejudice nor unfair surprise
to the hospital in allowing the amended claims to r elate back because the hospital knew of the
involvement of its own pe rso nnel who were read ing the films from the suit ‘s inception. McArthur,
307 Ill. App. 3d at 336.
Additionally, in Marek, t he plaintiff appealed the trial court ‘s dismissal of her second amended
complaint against the defendant entity, O.B. Gyne, based upon the running of the statute of
limitat ions. The or iginal complaint named O .B. Gyne and several ot her defendants and alleged that
those medical care providers failed to properly diagnose, advise and treat her for breast cancer.
Marek, 319 Ill. App . 3d at 692. In count II I o f her orig inal complaint, t he p laint iff sued Dr. Lupo for
negligence and sued O.B. Gyne, Dr. Lupo ‘s employer, as a pr incipal. In count I o f her second
amended complaint, filed well after the statute of limitations had run, the plaintiff alleged that her
gynecologist, Dr. McGill, was an agent of O.B. Gyne because upon his retirement all of his records
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became the property of O.B. Gyne and, therefore, O.B. Gyne was directly negligent for failing to
advise Marek of the abnormalities discovered in a mammog raphy repo rt subsequent to D r. McGill’s
retirement . Marek, 319 Ill. App. 3d at 694. In count II of her second amended complaint, Marek
alleged that she was unaware of her direct cause of action against O.B. Gyne until it answered
discovery, at which time she determined that O.B. Gyne possessed McG ill’s records , and o nly after
this discovery did she realize that a direct cause of action existed against O.B. Gyne. Marek, 319 I ll.
App. 3d at 694. Fur ther, in count II I o f the second amended complaint Marek alleged that Dr. Lupo
was negligent for failing to refer her for further diagnostic testing.
The appe llate cou rt reversed the t rial court ‘s dismissal of the ent ire case and remanded the
case to t he t rial court, ho lding that O.B. Gyne’s attention was directed to the allegations of negligence
made against its agents at the time the original complaint was filed, despite the fact the allega tions
made against it directly in earlier complaints were based upon the conduc t of a different agent. The
court reasoned that because O.B. Gyne had been made aware o f the occur rence t hat formed the basis
of the claim (the failure t o properly diagnose and t reat the pla int iff’s cancer ), it was able to adequa tely
prepare to meet the plaintiff’s claims regardless of the theory under which they were brought. Marek,
319 Ill. App. 3d at 698-99.
We believe that the reasoning employed in McArthur and Marek should be fo llowed in the
instant case. First, like McArthur and Marek, we find that Frigo’s original complaint was timely filed
as required by section 13-212(a) of the Code. Therefore, Frigo’s original complaint has satisfied the
timely filing requirement of section 2-616(b). See 735 ILCS 5 /2-616(b) (West 2000); Grove , 364
Ill. App. 3d at 418.
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Next, we must review the allegations set forth in Frigo’s original complaint, which was filed
on Oct obe r 6 , 2000 , t o determine whether the cause of action for negligent credent ialing in the first
amended complaint grew out of an occurrence or transact ion se t forth in the original complaint. See
735 ILCS 5/2-616(b) (West 2000); Grove , 364 Ill. App. 3d at 418. In her original complaint, Frigo
alleged that Silver Cross, by and through its duly authorized agents, including Dr. Kirchner, owed her
a dut y to po ssess and apply the knowledge and use t he skill and care that physicians specializing in
the practice of podiatrics would use in similar cases and cir cums t ances. Frigo argued that Silver
Cross, through Dr. Kirchner, was negligent in failing to adequately observe, monitor, and treat her
left foot following her surgery on October 8, 1998. We note that, like McArthur and Marek, Fr igo ‘s
original complaint specifically named Silver Cross as a defendant. Paragraph 11 of the original
complaint alleged that Silver Cross:
“(A) Carelessly and negligently managed, maintained,
contro lled, owned and operat ed said medical centers in such manner
causing the Plaintiff to be injured.”
We also note t hat, similar to McArthur and Marek, the original complaint in this case specifically
included negligence allegations against Silver Cross.
Next, we must review Frigo’s first amended complaint, which was filed on April 25, 2003,
app roximately 2½ years after the filing of the original complaint. Specifically, paragraph 12 of the
first amended complaint alleged that Silver Cross breached its du ty of reasonable care in the
management, control and operat ion of its medical center in one or more o f the following respects:
“(A) Failed to properly review, monito r and supervise the
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medical care and treatment administered to pla intiff by its medical
staff, agents, physicians and nurses, including bu t not limited to Dr.
Paul Kirchner in violation of its own hospital regulat ions/Bylaws and
applicable JCAHO Standards.
(B) Failed to exercise reasonable skill and care in the select ion,
retent ion, credent ialing, and cont inuing eva luation of the medical st aff,
agents, physicians and nurses who provided treatment to plaintiff,
including but not limited to Dr. Paul Kirchner in violation of its own
regulation/Bylaws and applicable JCAHO Standards.
(C) Failed to adequa tely assess the competence of the medical
staff, agents, physicians and nurses who provided treatment to
plaintiff, including but not limited to Dr. Paul Kirchner in violation of
its own hospital regulations/Bylaws and applicable JCAHO Standards.
(D) Failed to adequat ely determine the qualifications o f the
medical staff, agents, physicians and nurses who provided treatment
to plaintiff, including but not limited to Dr. Paul Kirchner in violation
o f its own hospital regula tions/Bylaws and app licable JCAHO
Standard s.
(E) Negligently allowed and permitted unqualified medical
staff/physicians, includ ing Dr . Kirchner to surgically treat the Plaintiff
on 10/8/98 in violation of its own hospital regulations/Bylaws and
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applicable JCAHO Standards.”
Comparing the management allegat ions made against Silver Cro ss in Frigo ‘s original complaint
to the more specific management and negligent credentialing allegations in the first amended
complaint , we find that the management allega tions in the o riginal complaint and t he more specific
management and negligent credentialing allegations in the first amended complaint arose from the
same transaction or o ccurr ence, namely, Frigo’s treatment during and after her October 8, 1998, foot
surge ry. See 735 ILCS 5/2-616(b) (West 2000)). We not e that all parties agree that Frigo’s first
amended complaint was filed outside the limitations period prescribed in section 13-212(a) of the
Code. However, we find, follow ing the liberal co nstruct ion rules in Bellucci and Avakian, t hat the
management allegat ions in Frigo ‘s original complaint provided Silver Cross with adequate notice of
the more specific negligent credentialing allegat ions in the first amended complaint. Bellucci, 338 I ll.
App. 3d at 391, quot ing Avakian v. Chulengarian, 328 Ill. App. 3d 147, 154 (2002); see also Zeh,
111 Ill. 2d at 278. Ou r rev iew o f the complaints indicates that paragraph 11(A) of the original
complaint is repeated and expounded upo n in paragraph 12 o f Frigo’s first amended complaint, which
alleges that Silver Cross breached its duty of care in the management, contro l and operat ion o f the
hospital by failing to exercise reasonable skill and care in the selection, retention and credentialing of
its physicians, including Dr. Kirchner. Although the first amended complaint contains more detailed
allegations of negligence against Silver Cro ss, we find that Silver Cro ss had adequa te no tice in the
original complaint because Frigo alleged that Silver Cross negligently managed the hospital. See
Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000) (hospitals may be found liable for
institutional negligence and for breaching an independent du ty, which is administrat ive and managerial
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in charact er, t o care for their pat ients). We find that Silver Cro ss was respo nsible for managing t he
hospital, had firsthand know ledge of its credentialing requirements , and knew whether Dr. Kirchner
met those requirements . Therefore, we find that Silver Cross was supplied with the essential
information it needed to pr epare a defense to the management claim in the original complaint because
similar but more specific and detailed allegations were later a lleged in the first amended complaint
with respect to t he hospital’s management — — select ion, retent ion, and credentialing of its physicians.
We hold that Silver Cross was adequately apprised, before the expiration of the limitat ions
periods (the two-year statute of limitations and four-year statute of repose), of the transaction or
occurrence upon which Frigo’s claims in the first amended complaint were based. Acco rdingly, the
trial court did not err when it denied Silver Cross’s motion for a judgment notwithstanding the verdict
predicated on the expiration o f the statut e of limitat ions.
II. Medical Studies Act
Next, Silver Cro ss argues that the t rial court erred in denying its mo tion for judgment
notwithstanding the verdic t because t he Medical S tudies Act (Act) barred the introduction of
evidence about what its credentials committee reviewed and therefore Silver Cross was prevented
from defending itself. Silver Cross contends that the informatio n it sought to defend it self wit h is
privileged under sections 8-2101 and 8-2102 of the Act. 735 ILCS 5/8-2101, 8-2102 (West 2000).
Frigo argues that the Act prot ect s statements and informat ion co llected on a physician by a ho spital’s
peer-review committee. Frigo contends that she did not rely on any information that comes wit hin
the purview of the Act.
The question of whether the Act’s privilege applies is a question of law that is reviewed de
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novo; however, the question of whether specific information, reco rds, report s, stat ements, no tes,
memoranda or data are part of an internal quality control “is a factual question,” on which defendants
bear the burden. Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347 Ill. App. 3d
817, 825 (2004), citing Berry v. West Suburban Hospital Medical Center, 338 Ill. App. 3d 49, 53-54
(2003).
Section 8-2101 of the Act provides, in pert inent part , as follows:
“All info rmat ion * * * used in the co ur se of internal qu alit y
control or of medical study for the purpose of reducing morbidity or
mortalit y, or for improving pat ient care o r increasing organ and tissue
do nation, shall be privileged, strictly confidential and shall be used
only for med ical research, increasing organ and tissue donat ion, the
evaluation and improvement of quality care, or granting, limiting or
revok ing staff pr ivileges or agreements fo r services, except that in any
health maintenance organization proceeding to decide upon a
physician’s services or any hospital or ambulato ry surgical treatment
center proceeding to decide upon a physician’s s taff p rivileges, or in
any jud icial review o f eit her, the claim of co nfidentiality sha ll not be
invoked to deny such physician access to or use of data upon which
such a decision was based.” 735 ILCS 5/8-2101 (West 2000).
The Act further provides:
“Such information, records, repo rts, stat ements, no tes,
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memoranda, or o ther data, shall not be admissible as evidence, nor
discoverable in any action of any kind in any court or before any
tribunal, board, agency or person. The disclosure of any such
information or data, whether proper, or improper , sha ll not waive or
have any effect upon its confidentiality, nondiscoverability, or
nonadmissibility.” 735 ILCS 5/8-2102 (West 2000).
“The purpose of the [Act] is to ensure that membe rs o f the med ical profession can maint ain
effect ive professional self-eva luat ion and to improve the quality of healthcare.” Giangiulio v. Ingalls
Memorial Ho spital. , 365 Ill. App. 3d 823, 835 (2006), citing Pie tro v. Marriott Senior Living
Services, Inc., 348 I ll. App. 3d 541, 548 (2004). “The Act also serves ‘to encourage cand id and
voluntary studies and p rograms used to improve hospital conditions and pa tient care o r to r educe t he
rates of death and disease.’ ” Webb v. Mount Sinai Hospital & Medical Center of Chicago, Inc., 347
Ill. App. 3d 817, 824-25 (2004), quo ting Niven v. Siqueira, 109 I ll. 2d 357, 366 (1985 ). “The belief
unde rlying the [Act] is that, wit hout a stat ut orily mandat ed peer -review pr ivilege, it is unlikely that
physicians would evaluate t heir colleagues.” Giangiulio , 365 Ill. App. 3d at 835, citing Pietro, 348
Ill. App. 3d at 548.
“However, *** not every piece of information a hospital staff acquires is nondiscoverable,
even if it is acquired by a peer-review committ ee.” Giangiulio , 365 Ill. App. 3d at 835, citing St rick lin
v. Becan, 293 I ll. App. 3d 886, 890 (1997). The Act “protects against disclosure of the mechanisms
of the peer-review pro cess, includ ing informat ion gathering and deliberat ions leading to the ultimate
decision rendered by a peer-review committee, but does not protect against the discove ry of
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information generated before the peer-review process begins or info rmat ion generated after the
peer-review process ends.” Giangiulio , 365 Ill. App. 3d at 835, citing Pietro, 348 Ill. App. 3d at 549.
“The Act ‘was never intended t o shie ld hospitals from po tential liability’ and ‘legal advice is not a goal
of the protection offered by the Act.’ ” Webb, 347 Ill. App. 3d at 825, quo ting Ro ach v. Sp ringfield
Clinic , 157 Ill. 2d 29, 40 (1993). “The Act does not protect ‘all information used for internal quality
co nt rol’ [citation]; instead, document s ‘generated spec ifically for t he use of a peer-review committee
receive prot ection under the Act’ [citation]. A document that ‘was initiated, created, prepared, or
generated by a peer-review committee’ is privileged under the Act, ‘even though it was later
disseminated ou tside t he peer-review process.’ [Citat ion.] [However, a] document creat ed ‘in the
ordinary course of the hospital’s medical business or for the purpose of rendering legal opinions or
to weigh potential liability risk or for later corrective action by the hospital staff’ is not privileged
‘even though it later was used by a committee in the peer-review process.’ ” Webb, 347 Ill. App. 3d
at 825, citing Chicago Trust Co., 298 Ill. App. 3d at 402,406.
In this case, Frigo’s first amended compla int alleged that Silver Cross deviated from its
regulat ions and bylaws and the JCAHO standards when it g ave Dr. Kirchner category II surgical
credentials. First, we no te that the allega tions in Frigo ‘s complaint focused o n the hospital’s
credentialing requirements codified in the regulations, bylaws and JCAHO standards and whether Dr.
Kirchner met those requirements and did not focus on the credentialing committee’s discussions or
the process it followed when it granted Dr. Kirchner his credentials. See Giangiulio , 365 Ill. App.
3d at 835, citing Pietro, 348 Ill. App . 3d at 549 . Next , we no te that Silver Cro ss’s regulat ions and
bylaws and the JCAHO standards were generated in the o rdinary course of business and are not
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records, reports, statements, notes, memoranda or data that were generated by or for the specific use
of the hospital’s peer-review committee. Webb, 347 Ill. App. 3d at 825. “The Act was ‘never
intended to shield hospitals from pot ential liability.’ ” Webb, 347 Ill. App. 3d at 825, quot ing Roach,
157 Ill. 2d at 42. We believe that if this court made such an expansive reading o f the Act, it wo uld
eliminate actions against hospitals for institut ional negligence. See Giangiulio , 365 I ll. App. 3d at
835; Webb, 347 Ill. App. 3d at 825 (“[ t]he Act does not pro tect ‘all information used for internal
quality contro l’ [citation] ; instead, documents ‘generated specifically for the use of a peer-review
committee receive p rotec tion under the Act.’ [cit at ion]”) . Acco rdingly, fo llowing Giangiulio and
Webb, we hold that Silver Cro ss’s regu lations and bylaws and the JCAHO standards are not wit hin
the pu rview of the Act privilege ; therefore, t he trial court did no t err when it denied S ilver Cross’s
motion for a judgment notwithstanding the verdict. See Giangiulio , 365 I ll. App. 3d a t 835 , citing
Pietro, 348 Ill. App. 3d at 549 ; Webb, 347 Ill. App. 3d at 825.
III. Ho spital Licensing Act
Next, Silver Cross argues that the trial court erred when it denied its motion for judgment not
withstanding the verdict because the Hospital Licensing Act (Licensing Act) immunized Silver Cross
against any claim based upon its credent ialing decisions. Frigo, however , argues that the Licens ing
Act is inapplicable to t his case because it has only been applied in cases where a physician applicant
has been denied hospital privileges and the physician is challenging the findings of the hospital.
Section 10.2 of the Licensing Act pro vides:
“[N]o hospital *** sha ll be liable for civil damages as a result of the
acts, omissions, decisions, or any other conduct, except those
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involving wilful or wanton misconduct, of *** any *** committee or
individual whose purpo se, direct ly or indirect ly, is internal quality
control ***, or for t he purpose of professional discipline ***. *** For
the purpo ses o f this [s]ect ion, ‘wilful and wanton misco nduc t ‘ means
a course of action that shows actual or deliberate intention to harm or
that, if not intentional, shows an utter indifference to o r conscious
disregard for a person’s own safety and the safety of others.” 210
ILCS 85/10.2 (West 2000).
“The legislat ive objec tive of sect ion 10.2 is ‘ “to fo ster effect ive self-po licing by members of the
medical profession in matters unique to that profession and to thereby promote a legitimate State
interest in improving the quality of health care in Illinois.” ‘ ” Szczerbaniuk v. Memorial Hospital for
McHenry County, 180 Ill. App. 3d 706, 711 (1989), quo ting Knapp v. Palos Community Hospital,
176 Ill. App. 3d 1012, 1024 (1988), quo ting Rodriguez-Erdman v. Ravenswood Hospital Medical
Center, 163 Ill. App. 3d 464, 470 (1987 ). “The stated purpose of section 10.2 is ‘to encourage peer-
rev iew by health care providers.’ ” Szczerbaniuk, 180 I ll. App. 3d at 711, quo ting Ill. Rev. Stat .
1987, ch. 111 ½ , par. 151.2.
Furthermore, the Licensing Act is intended to:
“provide for t he bet ter protection of the public hea lth through t he
development, establishment, and enforcement of standards (1) for the
care of individuals in hospitals, (2) for the construction, maintenance,
and operation of hospitals which, in light of advancing knowledge,
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will promote safe and adequate t reatment of such individua ls in
hospital, and (3) that will have regard to t he necessity of determining
that a person establishing a hospital have the qualifications,
background, character and financial resources to adequa tely provide
a proper standard of hospital service for the community.” 210 ILCS
85/2(a) (West 2000).
Our review of the Licensing Act and its purpose reveals that it seeks to regulate internal
hospital controls. We note that the Licensing Act has routinely been at issue in cases where
physicians have filed lawsuits against hospitals. See Cardwell v. Rockford Memorial Hospital, 136
Ill. 2d 271 (1990) (hospital physician, who resigned following a peer-review committee’s evaluation
of his suspect ed a lcoho l, drug, emot ional o r ment al problem, brought action against hospital
association and assistant hospital administrator for slander, coercion, intent iona l infliction of
emot ional distress, and intent ional interference with employment contract ); Lo v. Provena Covenant
Medical Center, 356 Ill. App. 3d 538 (2005) (physician sued hospital for breach o f contract , alleging
hospital vio lat ed med ical-s taff bylaws by restrict ing his c linica l pr ivileges wit hout granting him a
hearing); Tabora v. Gott lieb Memorial Hospital, 279 Ill. App. 3d 108 (1996) (physician who se staff
privileges had been revoked brought suit against hospital and its directo r); Rockford Memorial
Hospital v. Department of Human Rights, 272 Ill. App. 3d 751 (1995) (hosp ital brought action
against the Department o f Human Rights seeking an injunction and declaration that Department
lacked jurisdiction to inves tigate discr iminat ion charge made by physician whose hospital st aff
privileges were restricted by peer -review committee) ; Szczerbaniuk v. Memorial Hosp ital for
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McHenry County, 180 I ll. App . 3d 706 (1989 ) (physician sued hospital over terminat ion o f his
agreement to provide radiology services).
We find that sect ion 10.2 of the Licensing Act is a limit ation on the remedies available to
physicians aggrieved by a hospital’s peer-review process. Rockford Memorial Hospital, 272 I ll. App.
3d at 761, citing Levy v. McKiel, 185 I ll. App. 3d 240, 243 (1989 ). In addit ion, we no te that the
Licensing Act immunizes “acts, omissions, decisions or any ot her conduct” of a “credential
committee” whose pu rpo se is “internal quality cont rol” or ” medical study” to reduce morbidity or
mortality or improving or benefitting patient care within a hospital or for the purpose of professional
discipline. 210 ILCS 85/10.2 (West 2000). However, we also note that the Licensing Act does not
relieve any individual or hospital from liability arising from treatment of a patient. 210 ILCS 85/10.2
(West 2000) . In light o f the fact this case involves negligent medical treatment provided to a hospital
patient, we hold that the immunity provision in the Licensing Act do es no t apply. 210 ILCS 85/10.2
(West 2000) . Acco rdingly, we ho ld that the t rial court did no t err when it denied S ilver Cross’s
motion for judgment not withstanding the verdict on this issue.
IV. Negligent Credent ialing
Next, Silver Cross argues that the trial cour t er red in denying its mot ion no twithstanding t he
verdict because Fr igo failed to prove that it was negligent in granting Dr. Kirchner category II
surgical privileges before he operated on Frigo’s left foot on Octo ber 8, 1998. Silver Cross
specifically argues that (1) Fr igo did no t prove that its bylaws were violat ed; (2) the medica l staff’s
amendment of the podiatric surgical privilege requirements did not equate with the standard of care
that applied to Silver Cross; and (3) Frigo’s expert witnesses proffered speculative opinions, facts
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unsupported by the r eco rd , and evidence lacking any probative value of negligence. Silver Cross
argues that although Dr. Kirchner was recredentialed on May 27, 1998, before that time he had been
init ially appointed to the medical staff in 1992, monito red for 11 months, granted temporary surgical
privileges, and recredentialed with category II surgical privileges twice before. Silver Cro ss argues
that during the six years tha t Dr . Kirchner was on the hospital’s staff, he performed hundreds of
surgeries and t here was no evidence of any incident, problem, complaint, or adverse out come that
sho uld have caused S ilver Cross’s credentials committee t o deny his 1998 recredentialing app lication.
Frigo argues that the overwhelming weight of the evidence demonstrated that S ilver Cross er red in
its init ial g rant of cat egory II su rgic al p rivileges to D r. Kirchner because he did no t meet the
prerequisites for those privileges in 1992.
In Darling, the Illinois Supreme Court r ecognized that hospitals may be held liable fo r
institutional negligence and acknowledged that hospitals have an independent du ty to assume
responsibility for t he care o f the ir patients. Dar ling, 33 Ill. 2d a t 331. Ordinar ily, t his dut y is
administrat ive or managerial in character. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278,
291 (2000) ; Advincula v. United Blood Services, 176 Ill. 2d 1, 28 (1996); also see Johnson v. St .
Bernard Hospital, 79 Ill. App. 3d 709, 718 (1979) (“It requires no t med ica l expertise, but
administrat ive expertise, to enforce rules and regulations” adopted to ensure smoot hly run hospital
and adequate patient care). To fulfill this duty, a hospital must act as would a ” ‘reasonably careful
hospital’ ” under the circumstances. Jones, 191 Ill. 2d at 291-92, quot ing Advincula , 176 I ll. 2d at
29. “Liability is predicated on the hospital’s own negligence, not the negligence of the physician.”
Jones, 191 Ill. 2d at 292. “[I ]n recognizing a hospital’s institut ional negligence as a cause of act ion,
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Dar ling *** applied principles of common law negligence to hospitals in a manner that comports with
the true scope o f their operations.” Jones, 191 I ll. 2d at 292 , citing Dar ling, 33 Ill. 2d a t 331 (no ting
that a ho spital’s du ty in neg ligence cases is a lways the same, t o conform to the legal standard of
reasonable conduct in light of the apparent risk).
To prove negligence, the plaintiff must demonstrate (1) a dut y owed by the defendant to t he
plaintiff, (2) a breach of that dut y, and (3) an injury pro ximately caused by the breach. Jones, 191
Ill. 2d at 294, citing Cunis v. Brennan, 56 Ill. 2d 372, 374 (1974). “The standard of care, also known
as the standard of conduct , falls within the duty element.” Jones, 191 Ill. 2d at 294. In an action for
institutional negligence against a hospital, the standard of care applicable to a hospital may be proved
from a number of evidentiary sources and expert testimony is not always required. Jones, 191 Ill. 2d
at 294-96 ; Advincula , 176 Ill. 2d at 29-34; Dar ling, 33 Ill. 2d at 330-33.
Silver Cross does not question whether negligent credentialing constitutes a cause of action
under the theory of liability of hospital institutional negligence. However, neither party has cited to
this court case precedent which directly addresses negligent credentialing. This court’s research has
revealed extensive authority from other state and federal courts add ressing the issue . While decisions
from foreign jurisdictions are not binding on Illinois court s, where they are relevant in cons truing
language and addressing issues that Illinois courts have not, they may be examined. VanP lew v.
Riccio , 317 Ill. App. 3d 179, 184 (2000) ; Skipper Marine Electronics, Inc. v. United Parcel Service,
Inc., 210 Ill. App. 3d 231, 239 (1991).
The annotation, Tort Claims for Negligent Credentialing of Physician, 533 A.L.R. 5th 433
(2002), contains a wealth of author ity on the issue . In Insinga v. LaBella , 543 So . 2d 209 (Fla.
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1989) , t he Florida Supreme Court cited our supreme court ‘s ho lding in Dar ling and held:
“[W]e find, as a matter of public policy, that hospitals are in the best
position to prot ect their pat ients and, consequent ly, have an independent duty
to select and retain competent independent physicians seeking staff privileges.
We note that t he hospital’s liability extends only to t he physician’s conduc t while
render ing treatment to patients in the hospital and does not extend to his
conduct beyond the hospital premises. [Cit at ion.] Mo reo ver, the hospital will
only be responsible for the negligence of an independent physician when it has
failed to exercise due care in the selection and retention of that physician on its
staff.” Insinga v. Labella, 543 So. 2d at 214.
The Florida Supreme Court r ecently followed Insinga in Horowitz v.P lantation General
Ho spital Limited Pa rtnership , No. SC05 – 331 (May 24, 2007).
Similarly, in Gafner v. Down East Community Hospital, 735 A.2d 969, 977 (Me . 1999 ), the
Maine Supreme Court cited Dar ling as being the so ur ce for many co ur ts ado pt ing “corpo rat e liability”
as a cause of action against hospitals and other medical facilities. The Gafner court pointed out that
“most court s that have recognized the cause of action referred to as corporat e liability have grounded
the claim upon the respons ibility of the facility to assu re that physicians practicing in the facility are
properly credentialed and licensed.” Gafner v. Down East Community Hospital, 735 A.2d at 979
(listing 11 states holding the same). Also see St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d
503 , 509-10 (Texas 1997 ) ( listing 27 jurisdictions recognizing a ho spital’s direct liability, includ ing
for credentialing activities, in a dissent).
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We turn now to the elements a plaintiff is required to prove to support a verdict finding a
hospital liable under the theo ry of negligent credentialing. In Ru le v. Lutheran Hospitals & Homes
Society of America, 835 F.2d 1250 (8th Cir. 1987), the court held:
“The district court instructed t he jury that the Rules had the burden to
prove their allega tions t hat Lutheran negligently granted Dr. Pumphrey
obstetrical staff privileges to perform breech deliveries. With regard to a
hospital’s negligence in granting privileges, the jury was instructed t hat ‘[a]
hospital must use reasonable care in determining the competence of those
granted medical staff privileges.’ Fur ther, t he jury was told that the Rules had
the burden to prove that while practicing pursuant to negligently granted
obstetrical privileges, Dr. Pumphr ey c ommitted one or more specific acts of
malpractice in performing the breech delivery of Lucas Ru le. Finally, the
district court instructed t he jury that the Rules had the burden to pro ve ‘ “[t]hat
as a direct and proximate result of such neg ligent grant ing of privileges and
medical malpractice” ‘ Lucas Rule developed cerebral palsy.” Rule v. Lutheran
Hospital, 835 F.2d at 1253.
In Hiroms v. Scheffey, M.D., 76 S.W. 3d 486, 489 (Tex. App. 2002), the court pointed out,
“[i]f the physician is not negligent, there is no negligent credentialing claim against the hospital.” As
explained by the North Dakota Supreme Court in Benedic t v. St . Luke ‘s Hospitals, 365 N.W.2d 499,
505 (N.D. 1985): “If the jury found *** that the emergency room physician exercised the care and
skill ordinarily possessed, exercised by, and expected of ot her emergency ro om physicians, then the
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hospital’s failure to exercise reasonable care in selecting the doctor to st aff it s emergency ro om could
not be a proximate cause of [plaintiff’s] injuries.”
In Johnson v. Misericordia Community Hospital, 99 Wis. 2d 708, 301 N.W.2d 156 (1981),
the Wisconsin Supreme Court co nsidered a pla int iff’s suit aga inst a physician who was an independent
contractor, not an employee of Misericordia. The plain t iff did not claim that Misericordia was
vicariously liable for the docto r’s negligence. In holding that “a hospital has a duty to exercise due
care in the selection of its medical staff,” the court relied heavily on our supreme co ur t ‘s holding in
Dar ling. Johnson v. Misericordia Community Hospital, 99 Wis. 2d at 739, 301 N.W.2d at 164-65.
The court further held:
“The trial court ‘s instruction that the hospital was required to exercise
reasonable care in the granting of med ical st aff p rivileges and t hat reasonable
care ‘meant that deg ree o f care, skill and judgment usua lly exercised under like
o r similar circumstances by the average hospital was proper.’ ” Johnson v.
Misericordia Community Hospital, 99 Wis. 2d at 739, 301 N.W.2d at 172.
Finally, the Johnson co ur t held that “since t he procedu res ordinar ily employed by ho spitals
in evaluating applications for staff privileges are not wit hin the realm of the ordinary experience of
mankind, we agree with the ruling of the appellate court that expert testimony was required to prove
the same.” Johnson v. Misericordia Community Hospital, 99 Wis. 2d at 739, 301 N.W.2d at 172.
Expert testimony as to the applicable standard of care and what may constitute a violation of
that standard has also been held t o be required in negligent credentialing actions in Welsh v. Bulger,
M.D., 698 A.2d 581, 585 (Penn. 1997) , and Neff v. Johnson Memorial Hospital, 93 Conn. App. 534,
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546-48, 889 A.2d 921, 928-29 (2006). We note that evidence that the hospital complied with the
requirements of the JCAHO may be sufficient to support entry of summary judgment for that hospital.
Coleman v. Bessmer Carraway Methodist Medical Center, 589 So. 2d 703, 706 (Ala. 1991).
To summar ize, we find the above cases adequat ely lay out the elements needed to p rove
negligent credentialing. First, t o prevail, the plaintiff must prove the hospital failed to mee t the
standard o f reasonable care in the selection of the physician it granted medical staff privileges to
whose trea tment provided the basis for the underlying medical malpractice claim. Hospitals are
required to exercise reasonable care in the granting of medical staff privileges. “Reasonable care”
means that degree of care, skill and judgment usually exercised under like or similar circumstances
by the average hospital. Expert test imony is requ ired to p rove the applicable st andard of care and
whether that standard was violated.
Second, the plaintiff must prove that, while practicing pursuant to negligently granted medical
staff privileges, the physician breached the applicable standard of care. Finally, the plaint iff must
prove that the neg ligent grant ing of medical staff privileges was a proximate cause of the plaint iff’s
injuries.
While no I llinois cases have add ressed negligent credentialing as a recognized cause of act ion,
the principles involved are not new. The Illinois Supreme Court has acknow ledged that hospitals have
an independent du ty to assume respo nsibility for the care o f their pat ients, and “this dut y is
administrat ive or managerial in character.” Jones, 191 Ill. 2d at 291 ; Advincula , 176 Ill. 2d at 29;
Dar ling, 33 Ill. 2d at 331. Silver Cross had a duty to act as wou ld a ” ‘reasonably careful hosp ital’ “
under the circumstances. Jones, 191 Ill. 2d at 291-92, quot ing Advincula , 176 Ill. 2d at 29. We note
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that a hospital’s “licensing regulations, accreditation st andards, and hospital bylaws are admissible in
a malpractice action as evidence of the standard of care by which the conduct of the hospital may be
judged.” Evanston Hospital v. Cr ane, 254 Ill. App. 3d 435, 442 (1993) ; Taylor v. City of
Beardstown, 142 Ill. App. 3d 584, 596 (1986). At trial, both Frigo’s and Silver Cross’s expert
witnesses testified that the du ty of care is established in Silver Cross’s bylaws and JCAHO’s standards,
which reasonably careful hospitals must comply with. On appeal, there is no dispute among the
parties that Silver Cross owed Frigo a duty of care.
The parties, however, disagree as to whet her Silver Cross exercised reasonable care in
grant ing surgical privileges to Dr. Kirchner. We note that “Illinois courts recognize a duty on the part
of hospitals to use reasonable care t o discern the medical qualifications of persons who perform
medical services in the hospital.” Holton v. Resurrection Hospital, 88 Ill. App. 3d 655, 659 (1980);
accord Pickle v. Curns, 10 6 I ll. App. 3d 734, 739 (1982 ) (a hospital has a duty to know the
qua lificat ions and the standard of performance o f the physicians who practice on its premises).
Moreo ver, “[i]t is a breach of the hospital’s duty of care t o its pat ients to permit a physician whom
the hospital knows or sho uld have known is unqualified, or negligent, to practice on its premises.”
Rohe v. Shivde, 203 Ill. App. 3d 181, 199 (1990).
We note that Silver Cross’s credentialing criteria for the category II surgical privileges granted
to Dr. Kirchner in 1992 required that he (1) have “add itional post-gradua te surgical tr aining: e.g. [A]
completion of approved surgical residency or [B] has become Board Certified by the American Board
of Podiatric Surgery [ABPS], or [C] Board Eligible by the [ABPS] and *** (2) submit documentary
proof of having per formed the surgical procedu res to t he satisfact ion o f the Department of Surgery.”
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Dr. Kirchner testified that he did not have a surgical residency and that he was not board certified.
It should also be noted that Frigo’s expert, Dr. Kusunose, test ified that he reviewed Dr . Kirchner ‘s
surgical logs from his primary care residency, and he pointed out t hat a primary care residency was
significantly different from a surgical residency because it was focused o n conservat ive management
with very little exposure t o foot surge ry. Dr. Kusuno se t est ified t hat 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 surger ies did Dr . Kirchner participate more than 50%. Dr.
Kusunose stated t hat Dr. Kirchner had not completed an approved surgical residency in 1992.
The 1992 category II credential requirements were amended in 1993. By the time Dr.
Kirchner sought to be recredentialed in 1998, he had to meet the following requirements prescribed
by the 1993 amendment in o rder to be conferred with category II privileges : (1) be a licensed
podiatr ist in Illinois; (2) to have completed a 12-month podiatric surgical residency program accepted
by the ABPS and app roved by the CPME o f the APMA; (3) to have successfully complet ed t he
written eligibility examination; and (4) to have submitted documentation of prior performance of
requested procedures, including 30 category II operative report s. Frigo argues, and Silver Cross
acknowledges, that when Dr. Kirchner was recredentialed in 1998, he did not meet the amended
requirements of having completed a 12-month podiatric surgical residency program.
Frigo also argues that Dr. Kirchner was not boa rd cer tified and was no t app roved by the
ABPS. Arthur Sho rr , a boa rd-certified exper t in health care administration, opined that Silver Cross
did not act reasonably when it initially granted category II privileges to Dr. Kirchner. Shorr t estified
that Silver Cross violated its own bylaws as Dr. Kirchner did no t meet the minimum requirements and
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that his application should not have been considered. Dr. Kirchner could not have performed surgery
at Silver Cross without being credentialed.
Dr . Kusunose also testified that Dr. Kirchner did not meet the category II credentialing
requirements in 1993 or in 1998. Dr. Kusunose further testified that the principle of grandfat hering
did not apply to Dr. Kirchner.
Silver Cross’s healthcare administrat ion expert, Dr. David Benfer, opined that Dr. Kirchner
complied with the prerequisites of the 1992 rules for category II surgical credentials and was properly
grandfathered in when recredentialed in 1998. However, Paul Pawlack, president of Silver Cross,
and Dr. Irving Rudman, Silver Cross’s vice-president, both test ified that the hospital bylaws did not
provide for grandfathering.
We find that the abo ve evidence from the record demonstrates that expert t estimony was used
to prove the applicable standard of care. We also find that there was sufficient evidence in the record
for the jury to conclude that the standard was breached by Silver Cross.
Next, we must det ermine whet her Frigo proved that , while pract icing pu rsuant to negligently
granted surgical privileges, Dr. Kirchner breached the applicable standard of care and that this breach
was a proximate cause of Frigo’s injuries. Frigo presented three expert witnesses — Dr. Mozan, Dr.
Brakken, and Dr. Kusunose — – whose test imony established t hat Frigo ‘s ampu tat ion was proximat ely
caused by Dr. Kirchner ‘s breach of the applicable standard of care. Dr. Mozan testified that Frigo
was given antibiotics before surgery, which indicates that she had an infection. Dr. Mozan testified
that the ulcer was present at the time o f the surgery, t hat the infect ion began with the bact er ia in the
ulcer, and that caused t he osteomyelitis. Dr. Mozan testified that if a doctor cuts through an ulcer,
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the bacteria spreads and gets on the screw where it cannot be treated. Dr. Mo zan o pined t hat leaving
the screw in with an infection makes it t remendously more difficult to combat the infection. Dr.
Mozan test ified t hat had D r. Kirchner removed the screw and treated t he infection earlier, Frigo’s
foot could have been saved. Furthermore, Dr. Mozan specifically testified that the elective surgery
was the cause of Fr igo’s ampu tat ion. In addition, Dr. Bakken testified that the originating event for
the infection was the surgery performed in the presence of the ulcer.
Dr . Kusunose opined that the elective surgery, in light of Frigo’s infection, breached the
standard of care. Dr. Kusunose testified that if Dr. Kirchner had not performed the October 1998
surge ry, Frigo wo uld never have had t he amput at ion. The surgical incision here went through t he
infected ulcer and carried the infect ion into t he wound. There were clear signs of infect ion within a
week after Dr. Kirchner’s surgery. The podiatrist should have cultured the wound, drained and X-
rayed it, and by failing to do so violated the standard of care. Dr. Kusunose testified that given
Frigo ‘s weight , 280 pounds , Dr . Kirchner’s u se of a single screw in that surgery was inappropriate.
Dr. Kusunose stated that when Frigo was allowed to walk, it caused the fracture and violated t he
standard of care. Dr. Kusunose testified that after the fracture, the screw no longer served any
purpo se and should have been removed, but that Dr. Kirchner could not remove the screw because
he could not find it. Dr. Kusunose opined that Dr. Kirchner’s inability to locate the screw was due
to his lack of training and experience, and that his failure was a deviation from the standard of care.
By the time the screw was removed, the bact er ia had had five months to grow. 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 antibiot ics s tar ted. No team approach was ordered by Dr.
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Kirchner and that also violated the standard of care. Dr . Kusunose testified that the mult iple failures
here went to Dr. Kirchner’s lack of experience and to his lack of competence, bot h in doing the
surgery and in not being able to recognize and treat the complications that are learned in a surgical
residency.
We find that the jury was proper ly instructed as to t he element s of negligent credentialing.
During the instruction conference the trial judge said the following:
“Now, because of the innate nature of this case, the proximate cause
nexus requires a second step, that number one, they’ve go t to prove they
negligently credentialed, and then number two, t hey’ve got to prove that
negligent credentialing lead to Kirchner ‘s negligence, and t hey’ve go t to p rove
that Kirchner – – and further, t hat the negligent credentialing caused the injury,
and that’s all in here.”
Later on in the instruction conference, the following colloquy took place:
“THE COURT: (To defense co unsel) I said I wou ld give you r first one
in a modified form. The modified – – a modified interrogatory would read as
follows: Do you find that S ilver Cross Hospital committed institutional
negligence in credentialing or recredentialing Dr. Paul Kirchner, which
proximally caused injury to Pla int iff, Jean Frigo . The modificat ion was the
addition of the language ‘which proximally caused injury to Plaintiff Jean Frigo,’
and I also modified it and took out ‘institutional negligence’ and said ‘failed to
exercise ordinary care .’ That ‘s being withdrawn now, that propo sed
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interrogatory.
MR. JARZ: That’s correct.”
The quoted port ions of the record indicate that the jury was p rop er ly ins t ruct ed as to t he
elements that Frigo had to prove to establish her negligent credentialing claim. The special
interrogatory offered by the co urt and turned down by Silver Cross also supports this propos ition.
The jury’s verdict finding Silver Cro ss liable for Frigo ‘s injuries is well suppor ted by the evidence
where Frigo ‘s experts established that Dr. Kirchner lacked experience in podiatric surgery and did not
properly t reat F rigo ‘s ulcer and infection. Frigo’s amputation would have been prevented if Dr.
Kirchner had not been granted category II privileges. We find that but for Silver Cross granting Dr.
Kirchner category II privileges, he would not have been permitted to operate and provide inadequate
po stoperat ive care on Frigo ‘s foo t. Acco rdingly, we ho ld that the record establishes that Silver
Cro ss’s negligence proximately caused the amput at ion o f Frigo ‘s foot when it conferred category II
surgical privileges on Dr. Kirchner without following the credentialing requirements in its regulat ions
and bylaws.
Silver Cross contends that Frigo ‘s experts were not cred ible because their testimony lacked
proba tive value and because they were conclusory. We note that in deciding whether to grant a
motion notwithstanding t he verdict , t he t rial court may not reweigh t he evidence and set aside the
verdict simply because a jury could have drawn different conclusions or inferences from the evidence
or because it feels other possible results may have been far more reasonable. McClure, 188 Ill. 2d
at 132. In this case, the jury was presented with the evidence and was free to assess the credibility
of witnesses and the value of their evidence. An appellate court may not usurp the role of the jury
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and substitute its own judgment on factual questions fairly submitted, tried, and determined from
evidence which did not overwhelmingly favor either position. McClure, 188 Ill. 2d at 132. We are
unwilling to reweigh the evidence or substitute our judgment in this case based upon factual question
tried before a jury. Accordingly, we hold that the trial court did no t err when it denied S ilver Cross’s
motion for a judgment notwithstanding the verdict.
V. IPI Civil (2006) No. 30.23
Finally, Silver Cross argues that the trial court erred when it instructed the jury with IPI Civil
(2006) No. 30.23 because it was no t applicable to this case. Frigo argues that t he instruction was
properly given because S ilver Cross sho uld not have a llowed the initial surgery, which caused Fr igo ‘s
injury, to take place. Alternatively, Frigo argues that Silver Cross was not prejudiced by the
instruct ion.
“Whether to provide a particular jury instruct ion lies within the sound discretion o f the trial
court, and we, as the reviewing cou rt , w ill not disturb that det ermination absent a clear abuse of
discretion.” Webber v. Wight & Co . , 368 Ill. App. 3d 1007, 1020-21 (2006), citing Schu ltz v.
Northeast Illinois Regional Commuter R.R. Co rp., 201 Ill. 2d 260 , 273 (2002) . “Thus, it is for the
trial cour t to [det ermine] if a jury instruction is ‘applicable, suppo rt ed by evidence in the reco rd , and
an accurate st atement of the law. ‘ Luye v. Schopper, 348 Ill. App. 3d 767, 773 (2004) ***. It is true
that litigants are ent it led to have t he jury instruct ed as to t heir theo ry of the case; however, the
instruct ions they propo se ‘must accurately state applicable law’ in order for them to be given at trial.
[Cit at ion.] Ult imat ely, there is no abuse of discre tion as long as, ‘taken as a who le, the instruct ions
[given at tr ial] fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles’ of
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the case presented. [Cita t ion.] A new trial will be granted based on the court ‘s refusal to give a
propo sed instruction only when that refusal has caused serious prejudice to a litigant ‘s right to a fa ir
trial.” Webber, 368 Ill. App. 3d at 1021, citing St ift v. Lizzadro, 362 Ill. App. 3d 1019, 1026 (2005),
citing Linn v. Damilano , 303 Ill. App. 3d 600, 606-07 (1999).
The trial judge instructed the jury on IPI Civil (2006) No. 30.23 as follows:
“If a defendant negligently causes a n injury to the p laint iff,
then the defendant is liable not only for the plaintiff’s damages
result ing from that injury, but is also liable for any damages sustained
by the plaint iff arising from the efforts of health care providers to treat
the injury caused by the defendant, even if t hat health care provider
was negligent.”
The Notes on Use provide that IPI Civil (2006) No . 30 .23 is “intended t o be used when there is
evidence that a subsequent health care provider caused or aggravated the injury.”
In this case, the evidenc e a t trial est ablished that the defendant , S ilver Cross, managed the
hospital and decided, pursuant to its regulations and bylaws, which physicians at its hospital had
category II surgical privileges. Although Dr. Kirchner did not meet the requirements prescr ibed in
the hosp ital’s 1992 regulations or its amendment, Silver Cross conferred category II surgical
privileges on the doctor. Frigo came to Silver Cross with an infected ulcer on her foot and Silver
Cross breached a duty owed to Frigo by permitting Dr. Kirchner, who did not meet its category II
surgical requirements, to per form a bunionectomy on Frigo’s foot . Dr . Kirchner aggravated Frigo’s
medical condition by performing a bunionectomy on her foot with the infected ulcer because the
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bunionect omy caused the infection to spread, ost eomyelitis developed and necessitated t he
amputation of Frigo’s foot. In this state, a person, like Frigo, injured through another’s negligence,
here Silver Cross, may not only recover for the o riginal surgery (the bunionect omy), but for any
aggravation of the injury (the negligent posto perative care and the amputation) caused by the
physician’s (Kirchner’s) malpractice. Gertz v. Campbell, 55 Ill. 2d 84, 88 (1973 ), citing Chicago City
Ry. v. Saxby, 213 Ill. 274 (1904).
We believe that IPI Civil (2006) No . 30.23 was intended to be used in a case like this one
where there are two t ort feasors. Silver Cross was negligent when it permitted Dr . Kirchner to
operate on Frigo, and Dr. Kirchner’s surgery caused Frigo’s infection to spread resulting in Frigo
deve loping osteomyelitis that was negligent ly treated and culminated in Frigo’s foot being amputated.
See Holden v. Rockford Memorial Hospital, 175 Ill. 2d 527 (1 997 ); G er t z, 55 I ll. 2d a t 88. We
believe that IPI Civil (2006) No. 30.23 was intended to make Silver Cross liable in damages for
negligently authorizing Dr. Kirchner to oper ate on Frigo ‘s foot and for Dr. Kirchner’s failure to
provide the proper po stoperat ive medical care which caused Frigo’s foot to be amputated.
Acco rdingly, we hold that Silver Cross was not prejudiced; therefore, the tr ial cour t did not abuse
its discretion when it gave this instruction.
For the forgoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
MURPHY, J., concurs.
JUSTICE QUINN, specially concurring in part and dissenting in part:
I concur with the majority that the Hospital Licensing Act (210 ILCS 85/1 et seq. (West
2000)) does not immunize Silver Cro ss against plaintiff’s claims based upon the hospital’s
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credentialing decisions. I also concur with the majority that the Medical Studies Act (735 ILCS 5/8-
2101, 8-2102 (West 2000)) did not prevent Silver Cro ss from defending itself. I further concur with
the majority that negligent credentialing constitutes a recognized cause o f ac tion in I llinois unde r the
broader theory of institut ional negligence. Indeed, I completely agree with the major ity’s analysis and
holding that sufficient evidence was presented to suppor t the jury’s verdict finding Silver Cross liable
for plaintiff’s injuries as they were proximately caused by the negligent grant ing of category II surgical
privileges to Dr. Kirchner. I agree with the majority as to t he element s which comprise a negligent
credentialing claim and I agree that the jury was properly instruct ed as to these elements. Finally, I
concur with the majority that the jury was properly instructed when it was given IPI Civil (2006) No.
30.23. I base this concurrence upon the evidence of postoperative negligence on the part o f the
hospital which resulted in fur ther injury to the p laint iff. However, I am concerned t hat in negligent
credentialing cases which do not have evidence of pos toperat ive direct negligence on the part of the
hospital, the use of IPI Civil (2006) No . 30.23 cou ld lead t o ho spitals being held liable for a ll of the
actions of the physician to whom they negligently gave medical privileges.
In spite of my complete agreement with the majority as to the issues above, I respect fully
dissent as to t heir ho lding that the negligent credentialing allega tions in the first amended complaint
relate back to Frigo’s original complaint and were therefore t imely filed.
The majority correctly point out that the two-year statute of limitations and four-year statute
of repose applicable to this action against Silver Cross appear in section 13-212 of the Illinois Code
o f Civil Procedure, (735 ILCS 5/13-212 (West 2000)). The surgery at issue was performed on
October 8, 1998, and the first complaint was filed on October 6, 2000.
Plaintiff’s initial complaint alleged that Silver Cross:
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“(A) Carelessly and negligently managed, maintained, contro lled, owned
and operated said medical centers in such manner causing the plaintiff to
be injured;”
Subparagraphs (B) through (E) made four specific allegations against Silver Cross for
actions “following her 10/08/98 surgery.”
Plaintiff filed her first amended complaint on April 25, 2003. This amended complaint alleged,
among other things, that Silver Cross: “(B) Failed to exercise reasonable skill and care in the
select ion, retent ion, credent ialing and cont inuing eva luation of the medical st aff, agents, physicians
and nurses who p rovided t reatment t o p laintiff, including but no t limited to Dr . Paul Kirchner in
violation of its own hospital regulations/by-laws and applicable JCAHO Standards.”
The majority state: “we find that S ilver Cross was supplied w ith the essent ial info rmat ion it
needed to prepare a defense to the management claim in the original complaint because similar but
more specific and det ailed allega tions were later alleged in the first amended complaint with respect
to the hospital’s management – selection, retention, and credentialing of its physicians.” Slip op. at 27-
28.
In arriving at this conclusion, the majority provide a thoughtful analysis of several cases which
address when an amended pleading that is filed after the statute o f limitations has expired relates
back to the pr ior plead ing that was t imely filed. In analyzing sect ion 2-616(b) of the Code of Civil
Procedure, the majority rely on several cases addressing when amended pleadings in medical
malpractice ac tions rela te back t o the original pleadings, no tably Castro v. Bellucci, 338 I ll. App. 3d
386 (2003), McAr thur v. S t. Mary’s Hospital of Decatur, 307 Ill. App. 3d 329 (1999), and Marek v.
O.B. Gyne Specialists II, S .C., 319 Ill. App. 3d 690 (2001 ), amongst others. The majo rity’s analysis
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is very thorough and correct ly states the holdings in all of the cases they cite.
I am unwilling to concur in the majority conclusion even though it logically flows from the
cases cited because I believe a sepa rat e line o f cases is mo re c losely rela ted to our case fact ua lly.
In Grove v. Carle Foundation Hospital, 364 Ill. App. 3d 412 (2006), a case cited by the
majo rity, t he trial cour t denied a pla int iff’s motion to amend his complaint, which originally alleged
negligence aga inst t he hospital and physicians based on t heir t reatment o f the pat ient’s infection after
his second surgery. The appellate court affirmed the denial, holding that the amended allegation that
the original colonoscopy procedure was negligen t ly per fo rmed did not relate back to t he original
complaint because the amendment “seeks to add a completely distinct procedure to t heir complaint
of negligence.” Grove v. Carle Foundation Hospital, 364 Ill. App. 3d at 420 . S imilarly, the original
complaint in the inst ant case focused o n the hospital’s act ions “follow ing [Frigo’s] 10/8/98 surgery.”
As in Grove , these allega tions invo lved a po stoperat ive infect ion that pla int iff’s experts unifo rmly
test ified was the cause of plaintiff’s amput at ion.
Silver Cross cites McCo rry v. Goone ratne, 332 Ill. App . 3d 935 (2002) , fo r its analysis of the
language of sect ion 2-616(b): “The lat er claim ‘grew out of the same *** o ccur rence ‘ as the claim in
the original complaint if the original complaint provided the defendant with all of the information
necessary for preparation o f the defense for the claim asserted later. Williams v. Board of Education
of the City of Chicago, [222 I ll. App. 3d 559, 563 (1991)]. The later claim relates back if the original
complaint directs the defendant’s attention to the facts on which the plaintiff bases the later claim.”
McCorry v. Goo neratne, 332 Ill. App. 3d at 943-44. The majority’s statement that “Silver Cross was
supplied with the essent ial information it needed to p repare a defense to t he management claim in the
original complaint” (slip op. at 27) certainly does not meet the standard as set ou t in McCorry.
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Admittedly, the problem here may be that McCorry overstates the burden placed on plaintiffs.
Courts have specifically rejected the assertion that negligent credentialing claims filed after
the st at ut e o f limitat ions has run relate back t o original complaints alleging a hospital’s negligence
based on an employment or an agency relationship.
In a case factually very similar to ours, Weidner v. Carle Foundation Hospital, 159 Ill. App.
3d 710 (1987), the plaintiff brought a medical malpractice action against a physician, against a clinic
and against a hospital based o n an employment or agency relationship. The pla int iff vo luntar ily
dismissed the co unt s against the physician and the clinic. Summary judgment was entered fo r the
hospital but the patient was granted leave to file an amended complaint. In the amended complaint,
the pla int iff alleged that the hospital had a dut y of care separat e from the physician’s dut y to his
pat ient to know the qualificat ions o f its st aff physicians and their st andard of performance . The
circu it court dismissed t his amended complaint as being unt imely and t he pa tient appealed. The
appellate court affirmed, holding that the allega tions in the amended complaint that the hospital “was
negligent for not adequa tely ascer taining the qualifications of its staff physicians, supervising t hem,
and reviewing their performance” were “separate from the alleged malpractice which led t o p laintiff’s
injuries. The fact s est ablished o r raising a question of this type of negligence were no t asse rt ed in the
initial pleadings. Therefore, Carle Foundation Hospital was not placed on notice of the subsequent
claim.” Weidner v. Carle Foundation Hospital, 159 Ill. App. 3d at 713.
I believe that the ho ldings o f the appellate court in Castro , McArthur and Marek, cited by
plaintiff, appear to be in some conflict with the holdings of the appellate court in Grove , McCorry and
Weidner, cited by defendant, Silver Cross. Consequently, I believe that ou r supreme court ‘s ho lding
in Zeh v. Wheeler, 111 I ll. 2d 266 (1986) , explaining the rat ionale behind the relat ion back do ct rine
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as cod ified in sect ion 2-616(b) is most instructive: ” ‘[A] defendant has not been prejudiced so long
as his attention has been directed, within the time prescribed or limited to the facts that form the basis
of the claim asserted against him.’ ” Zeh v. Wheeler, 111 Ill. 2d at 273, quo ting Simmons v.
Hendricks, 32 Ill. 2d 489, 495 (1965).
In the instant case, the plaintiff’s initial complaint alleged that Silver Cro ss “[c]arelessly and
negligently managed, maintained, contro lled, owned and operated said medical centers in such manner
causing the plaintiff to be injured.” It would be difficult to imagine language that was more broad
and nebulous. If this language is held to be sufficient to put hospitals on notice for the purpose of
holding them direct ly liable for the medica l malpract ice o f the independent contractor physicians who
work there, the relation back do ct rine will essentially be applicable in all such cases, dep riving
hospitals of the protection of the statute of limitat ions and st at ut e o f repose as found in section 13-
212 of the Code of Civil Procedure (735 ILCS 5/13-212 (West 2000)). Therefore, I respect fully
dissent as to the applicability of the statut e of limitations defense.
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