Two Wisconsin hospitals earn Ds for safety; grades may be admissible in court

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Published 10:22 p.m. CDT May 3, 2023.

By Steve Schuster
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Two Wisconsin hospitals earned “D” safety ratings in a recently released report from the nonprofit Leapfrog Group.  Some attorneys say the grades may be admissible in court.

Froedtert Kenosha Hospital and Froedtert Pleasant Prairie Hospital were the only two hospitals in Wisconsin this Spring to earn “D” safety ratings, according to the report.

Hospitals get rated based on several factors, including: infection, surgery, safety, and error prevention. A chart indicates whether the hospital is in the green (better-than-average rating), yellow (average), or red (worse-than-average rating). A chart allows hospitals to see their ranking based on the respective weighted factors.

“Hospitals that earn top marks often advertise their grades and ratings to try to attract more patients and dollars, while those that do poorly question the methodology behind the grades and argue that they don’t paint a full picture of a hospital’s quality,” Chicago Tribune reported, noting Leapfrog releases grades twice annually with ratings based on more than 30 measures of patient safety from the federal government, a Leapfrog survey, and other sources.

“One of the most significant problems with today’s health care system is the failure to make safety and quality information available to the public. But the public deserves this information so they can make informed choices about where to receive care. The purpose of the Leapfrog Hospital Safety Grade is to bring this information to light in a way that is easy for you – the consumer – to use,” Leapfrog said on its website.

An expert panel guides Leapfrog in selecting appropriate measures and developing a scoring methodology. The panel includes both clinical and research doctors from the hospitals of: Johns Hopkins, Harvard, Vanderbilt and Stanford, as well as other highly respected institutions.

Froedtert did not respond to our request for a comment about their two Kenosha County hospitals receiving low marks.

In 2018, TMJ4 reported practices at Froedtert/Medical College of Wisconsin may have caused avoidable deaths for patients waiting on life-saving organs, which captured the attention of Federal investigators.

However, could Leapfrog’s recent findings be admissible in a court of law in Wisconsin in a future medical malpractice case?

That depends.

The Wisconsin Law Journal interviewed both plaintiff and defense attorneys, as well as law professors, and jurists.

Marquette University Law School adjunct Professor Samuel Leib has been practicing medical malpractice law for the past four decades. His practice has mostly consisted of defending doctors, hospitals, and insurance companies in standard of care issues.

According to Leib, while it would be difficult to have Leapfrog’s reports entered into admissible evidence on a standard of care matter, entering the report into evidence on an informed consent basis is a different story.

“It’s a pretty complex question, and it depends. I could see it getting into evidence on an informed consent basis,” Leib said, noting Johnson v. Kokemoor ruled, “the concept of informed consent is based on the tenet that in order to make a rational and informed decision about undertaking a particular treatment or undergoing a particular surgical procedure, a patient has the right to know about significant potential risks involved in the proposed treatment or surgery.”

From a negligence perspective, it’s extremely difficult to admit this type of report into evidence, Leib said.

“The surgeon can’t say, Hey I’m a great surgeon, I’ve done this 1,000 times and only had one complication … therefore, I’m not liable for this (instance of negligence),” Leib said.

“It’s a bit of a hyperbole … like, I’ve been at this stop sign 1,000 times and I never ran it before. That’s better than 99% of them who ran the stop sign three times, when I only did once. There’s a fundamentalism that character evidence is inadmissible on the issue of proving negligence,” Leib said.

Addressing medical negligence, Wisconsin Jury instruction 10-23 reads, “A doctor is not negligent, however, for failing to use the highest degree of care, skill, and judgment or solely because a bad result.”

“This is a classic situation of forbidden inference in evidence law. You can’t use character evidence to say this hospital is a sloppy hospital, instead you need to provide evidence of what they did wrong in the particular case being litigated,” said Alex Lemann, Assistant Professor of law at Marquette University.

According to Leib, there are two types of informed consent nationally: patient-centric and physician-centric.

About 10 years ago, Wisconsin moved from a patient-centric standard to a physician-centric standard of care burden. In other states that apply a patient-centric standard, a physician has to advise his/her patient as to everything a reasonable patient would want to know prior to consenting to a procedure.

“It’s always a question of fact,” Leib noted.

“Statistical success or failure of any institutions or provider likely has no opportunity to be admitted into evidence on its own for purposes proving the breach of standard of care,” Leib said, noting that “although (the grading report) can’t get into evidence regarding negligence in the performance or rendering of treatment, it can get into evidence position on informed consent.”

Wisconsin’s current physician-centric standard requires expert testimony from a physician, that under the standard of care, the patient would have needed information to make informed consent.

“So could a (Wisconsin) patient could sue a (Wisconsin) hospital for informed consent, and argue look at this hospital, it was rated (poorly), as a reasonable patient I wanted to know that ranking before consenting to treatment?” Leib asked.

“I think this is information that a reasonable patient would want to know and it would ultimately become a jury question. You (as an attorney) need an expert to testify in order to gain context for a reasonable physician disclosure of this information to the patient,” Leib said.

Under current Wisconsin law, Leib noted that physicians are only required to advise a patient of information that a reasonable physician would provide.

According to Leib, the question at issue becomes, “would a reasonable patient require that information (that a hospital received a certain ranking)? What would a reasonable patient need to know to make informed consent?”

Lemann notes that admitting the report into evidence under the informed consent is much easier in a state that goes under reasonable patient standard.

“As a patient of course, I would want to know that the hospital where I am going to be operated on has shoddy safety standards,” Lemann said.

However, under Wisconsin’s current physician-centric standard, “I think it would be hard to prove that a reasonable physician would disclose to their patients these generalized reports of the hospitals’ safety grades. This would be much easier in a state that goes under reasonable patient standard,” Lemann added.

Leib said although he was not familiar with the Leapfrog survey, it would also be worth considering if the report would be applicable to a learned treatise.

Wisconsin medical malpractice attorney Robert Gringras has also been practicing medical malpractice law for four decades — five years defending doctors and the past 35 years as a plaintiff’s attorney.

Gringras told the Wisconsin Law Journal Wednesday technically Leapfrog’s grades could be admissible, but, “it would not be easy.”

“If you could have your expert review (the Leapfrog reports) and validate them in terms of methodology, perhaps, experts could get them into evidence, but I think that would be a difficult battle,” Gringras said.

“I think at the end of the day, it would be a long shot to get into evidence,” he added.

Regardless of the Leapfrog reports’ admissibility in court, Gringras said as a health care consumer, it’s extremely valuable data.

“As a consumer, I would pay close attention to these ratings,” Gringras said.

Froedtert Kenosha Hospital also received a similarly poor “D” grade to Froedtert Pleasant Prairie Hospital.

Froedtert Pleasant Prairie Hospital is 24 miles north of Northwestern Medicine Lake Forest Hospital, which received the highest possible rating, an A grade.

“We appreciate the ongoing efforts by Leapfrog to improve the usefulness and accessibility of health information for consumers. We believe that quality and safety data should be meaningful, informative and transparent to the public. Our physicians, nurses and staff at Northwestern Medicine Lake Forest Hospital are driven by their dedication and passion for delivering outstanding care while always striving to do what is best for our patients. As a health system, we remain committed to providing high quality, safe, patient-centered care,” said Marsha Oberrieder, president at Northwestern Medicine Lake Forest Hospital during an interview with the Wisconsin Law Journal on Wednesday.

“We are pleased that Northwestern Medicine Lake Forest Hospital represents the highest standard of care for our patients. Our convenient location for those in northern Illinois, as well as southern Wisconsin, offers patients state-of-the-art technologies with leading physicians in their field with access to Northwestern Memorial Hospital, one of the leading academic medical centers in the country,” Oberrieder added.

Leapfrog’s reports rate a number of factors and to get an “A” rating such as Northwestern Medicine, a score must be well in the green. The opposite is true, to get a “D” rating like Froedtert’s two Kenosha County hospitals.

According to the report, Froedtert was in the red for infections, problems with surgery, safety problems, practices to prevent errors, and communications.

Infection:

MRSA infections, C. diff infections, infections in the blood, infection in the urinary tract, and surgical site infection after colon surgeries received “red” / below average ratings at Froedtert Plesant Prairie Hospital in Spring of 2023.

Problems with Surgery

“Surgical wound splits open, death from serious treatable complications, blood leakage,” the report states all received the red category at Froedtert’s Kenosha County hospitals, according to the report.

Safety problems

“Dangerous bed sores, patient falls and injuries, falls causing broken hips, collapsed lungs, dangerous blood clots,” were also in the red category at Froedtert’s Kenosha County hospitals, according to the report.

Practices to Prevent Errors

“Doctors order medications through a computer, safe medication administration, handwashing, communication about medicines, communication about discharge,” all received ratings in the red category at Froedtert’s Kenosha County hospitals, according to the report.

Communications

Communication with doctors and nurses received poor ratings at Froedtert’s Kenosha County hospitals, according to the report.

Aurora Healthcare earned “A” grades at several of its Wisconsin hospitals, including: Green Bay, Grafton, Two Rivers, Oshkosh, Hartford, Sheboygan, and Summit.

“Safety always has been and always will be our top priority,” said a Spokesperson for Aurora Health Care, during an interview with the Wisconsin Law Journal Wednesday.

Froedtert’s main campus on 92nd street in Milwaukee and Froedtert Menomonee Falls also earned an “A” grade.

Mayo Clinic’s Eau Claire and La Crosse hospitals both earned “A” grades.

Other Wisconsin hospitals that received an “A” grade include: Bellin Memorial Hospital (Green Bay), HSHS Sacred Heart Hospital (Eau Claire. Green Bay and Chippewa Falls), ThedaCare (Neenah and Appleton), and Sauk Prarie Hospitals.

Wisconsin hospitals that earned “B” grades included: UW Health University Hospital (Madison), ProHealth (Waukesha Memorial and Oconomowoc), Marshfield Clinic (Minocqua and Weston), St. Nicholas (Sheboygan), Mercy Health (Janesville), as well as several others.

Wisconsin hospitals that earned “C” grades included: Froedtert (West Bend), Ascension (Columbia St Mary’s Hospital Milwaukee and Ozaukee Hospitals, St. Francis, Franklin, St. Joseph, (All Saints, Elmbrook), Marshfield Medical Center (Marshfield, Eau Claire, Beaver Dam, Rice Lake), Aurora (Kenosha, South Shore, West Allis), and well as several others.

Click here to see the full report.