District Court Recognizes Cause of Action Against Hospital for Negligent Privileging of Physician; Certifies to Appellate Court as Important and Doubtful

On June 29, 2005, the Honorable Gerald Seibel, Wilkin County District Court, issued a decision recognizing that patients pursuing a medical negligence case have a cause of action against hospitals for negligently granting privileges to physicians.  Because Minnesota's appellate courts have never addressed whether such a common law cause of action exists, Judge Seibel certified the issue as important and doubtful, thus allowing the hospital to seek immediate appellate review of the decision.  Counsel expect amicus briefs from several organizations.  The firm's client was represented by Terry L. Wade.

This case arises from serious injuries suffered by Mary Larson after undergoing gastric bypass surgery performed by Dr. James P. Wasemiller at St. Francis Medical Center in Breckenridge, Minnesota. During the course of discovery, Larson's counsel learned that Dr. Wasemiller, prior to Ms. Larson's surgery, had a history of educational, training, and practice deficiencies that should have prompted St. Francis Medical Center not to allow Dr. Wasemiller to perform complex gastric bypass procedures. 

After Dr. Wasemiller completed his surgical residency in the mid-1970's, for example, he sought board certification from the American Board of Surgery.  Most surgeons obtain board certification to demonstrate competence.  Dr. Wasemiller passed the written portion of the certification exam, but failed the oral portion of the exam on three occasions.  After the third failure, the American Board of Surgery informed Dr. Wasemiller that he could not seek certification again until he completed one more year of training.  Dr. Wasemiller chose not to undergo additional training and instead set about establishing a surgical practice in the Wahpeton, North Dakota/Breckenridge, Minnesota area.  As part of his general surgical practice, he performed complex gastric bypass procedures because other surgeons in the area were not performing them. 

By the time Dr. Wasemiller performed gastric bypass surgery on Mary Larson in 2002, he had had at least ten patients bring malpractice claims against him, including two cases in which gastric bypass patients had died or suffered horrific injuries.  Both gastric bypass cases had been settled, and seven of the ten documented claims had been settled.  This history of malpractice claims and payments scared off private malpractice carriers, which stopped offering coverage to Wasemiller during the 1980's because underwriters deemed him to be an unacceptably high risk.  Thereafter, Wasemiller could obtain malpractice coverage only through the Minnesota Joint Underwriter's Association, which was required by statute to offer coverage.

Prior to 2002, Wasemiller had also been disciplined by the boards of medical practice in Minnesota and North Dakota.  One instance of discipline arose from restrictions placed on Dr. Wasemiller's surgical practice by St. Francis Medical Center.  In 1990, the hospital imposed several restrictions on Dr. Wasemiller, including requirements that he receive 160 hours of continuing medical education in various areas of patient care, including  courses covering basic surgical management and proper use of antibiotics.  The hospital insisted that he substantiate and completely document pre-surgical indications and preoperative evaluations for all surgical patients, and that he consult with an internist or family practitioner on all hospitalized patients with a principal diagnosis or past medical history involving gastroenterology, cardiology, fluid and electrolytes, and infectious disease.  The hospital also said that it would review all medical and surgical cases of his patients over a twelve-month period.  A year later, that review revealed ongoing deficiencies.  His medical charting failed to comply with standard of care requirements in 33% of cases reviewed, and his surgical charting failed to comply with standard of care requirements in 41% of cases reviewed.  Subsequent reviews revealed that Wasemiller still had problems with ongoing documentation, inappropriate antibiotic usage, inappropriate fluid and electrolyte management, inadequate surgical workups, and questionable indications for surgery.  In November 1992, the Minnesota Board of Medical Practices, which had become aware of these issues at St. Francis Medical Center, ordered Wasemiller to submit to the supervision of another physician and to meet with the Board on a quarterly basis for the next two years, at which time Wasemiller could petition for removal of restrictions on his practice.

Because St. Francis Medical Center continued to grant Wasemiller privileges to perform gastric bypass procedures at its hospitals, Ms. Larson successfully moved to add St. Francis as a defendant.  Her expert pointed out that gastric bypass procedures are highly complex procedures that should only be performed by highly skilled and experienced surgeons at facilities that are staffed and equipped to meet the many needs of gastric bypass patients.  The expert, a world-renown expert on gastric bypass surgery, opined that St. Francis acted negligently in allowing Wasemiller to perform gastric bypass procedures at its facility.

St. Francis moved for dismissal. The hospital alleged that Minnesota has never recognized a common law claim for negligent privileging and that Minnesota’s peer review statute, Minn. Stat. §§ 145.61-.67, barred such claims.  The court denied the motion.  The court noted that the majority of other jurisdictions recognized that hospitals owed a legal duty to their patients to exercise reasonable care in deciding which doctors could treat patients at their facilities and what procedures they could perform.  The court also recognized that the peer review statute imposed an express obligation on hospitals to act reasonably when granting privileges.  The statute also directed courts not to construe the statute in a manner to abrogate any rights otherwise held by patients.  The court certified both issues as important and doubtful, thus giving St. Francis the opportunity for immediate appeal before the case is tried.  An appeal is expected.