Johnson v. Misericordia Community Hospital 97 Wis.2d 521, 294 N.W.2d 501 (1980)
Johnson had his surgery at Misericordia and it didn't go
well. He sued for damages.
Misericordia had hired Dr. Salinsky to perform the
surgery and Salinsky might have been incompetent.
In order to win, Johnson had to establish that
Misericordia failed to exercise the usual amount of care that other
hospitals used to hire doctors.
At trial, Johnson offered evidence that it would have been
easy for Misericordia to have checked Salinsky's records and seen he was
Johnson brought in administrators from other hospitals
who testified that they wouldn't let Salinsky work there.
Misericordia objected to the evidence on the grounds that
it was hearsay.
The Trial Court found for Johnson. Misericordia appealed.
The Trial Court admitted the evidence because it wasn't
being offered to prove that Salinsky was incompetent, only that other
people believed Salinsky was incompetent.
The Appellate Court affirmed.
The Appellate Court found that the existence of the
records shows that Misericordia had been negligent in hiring Salinsky.
Johnson did not need the records to establish that Salisnky actually was
Basically, it didn't matter if the records were true or
not, it only mattered that they existed and Misericordia should have
If Johnson wanted to use the records to prove Salinsky was
incompetent they would not have been admissible. Misericordia had no way
to cross-examine the writers of the records, or effectively challenge the
statements therein. Since the statements in the records had not been made
under oath, they could not be used to establish fact, since they would be hearsay.
So the records could not be used to sue the hospital for
medical malpractice under the doctrine of respondent superior.