Keri Anne Connaughty v. Transformations Surgery Center, Inc.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 3, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP2188 Cir. Ct. No. 2019CV284

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KERI ANNE CONNAUGHTY AND KEVIN CONNAUGHTY,

PLAINTIFFS-APPELLANTS,

V.

TRANSFORMATIONS SURGERY CENTER, INC.
AND CONTINENTAL CASUALTY COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed in part; reversed in part and cause
remanded for further proceedings.

Before Kloppenburg, Graham, and Nashold, JJ.

¶1 KLOPPENBURG, J. Keri Anne Connaughty and Kevin
Connaughty sued Transformations Surgery Center, Inc. for “[n]egligent hiring
No. 2021AP2188

and/or negligent granting of practicing privileges” (“negligent credentialing”) of
Dr. John W. Siebert; the Connaughtys also sued Siebert for allegedly violating
Keri Anne’s informed consent regarding breast augmentation surgery.1 The
Connaughtys alleged that Transformations negligently credentialed Siebert based
on his history of misconduct and disciplinary actions in New York, and that this
negligence resulted in Siebert’s violation of Keri Anne’s informed consent.

¶2 The circuit court granted Transformations’ motion for summary
judgment and dismissed the Connaughtys’ negligent credentialing claim.
Crediting the Connaughtys’ version of disputed facts for purposes of summary
judgment, the court determined that the connection between Siebert’s misconduct
and his violation of Keri Anne’s informed consent is “too attenuated” to sustain
the negligent credentialing claim. Separately, the court also denied the
Connaughtys’ motion to amend their witness list. The Connaughtys challenge
both decisions on appeal.

1
For ease of reading we refer to Keri Anne and Kevin Connaughty as the Connaughtys,
to Keri Anne Connaughty as Keri Anne, to Transformations Surgery Center, Inc. as
Transformations, and to Dr. John W. Siebert as Siebert.

The Connaughtys used the phrase “Negligent Hiring and/or Negligent Granting of
Practicing Privileges” in their initial complaint and all subsequent amendments. However, in
their appellate briefing the Connaughtys refer to their claim as “negligent credentialing”, and
Transformations in its appellate briefing also uses the term “negligent credentialing.” In addition,
the circuit court here and Wisconsin appellate courts generally use the term “credential” and the
process of “credentialing” to refer to the granting of practice privileges related to medical staffing
decisions. See, e.g., Johnson v. Misericordia Cmty. Hosp., 99 Wis. 2d 708, 723, 301 N.W.2d
156 (1981) (“The failure of a hospital to scrutinize the credentials of its medical staff applicants
could foreseeably result in the appointment of unqualified physicians and surgeons to its staff.”)
Accordingly, we will refer to the Connaughtys’ claim as “negligent credentialing” consistent with
Wisconsin case law and the parties’ submissions.

The Connaughtys sued both Transformations and Siebert for additional claims not
pertinent to this appeal. The operative complaint that contains the allegations to which we refer
in this opinion is the Connaughtys’ third amended complaint.

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¶3 First, the Connaughtys argue that Transformations is not entitled to
summary judgment because it is reasonably foreseeable that Siebert would violate
a patient’s informed consent based on his ethical misconduct that Transformations
negligently failed to investigate when credentialing him. Transformations argues
that it is entitled to summary judgment dismissing the Connaughtys’ negligent
credentialing claim because Siebert’s misconduct is “too attenuated” from his
violation of Keri Anne’s informed consent. Crediting the Connaughtys’ version of
the facts, as both Transformations and the circuit court did for purposes of
summary judgment, we conclude that Transformations fails to show as a matter of
law that Siebert’s misconduct is “too attenuated” from his violation of Keri Anne’s
informed consent. That is, on those facts, Transformation fails to show that it is
not reasonably foreseeable from Siebert’s ethical misconduct that he would cause
injury to Keri Anne by violating her informed consent. Therefore,
Transformations is not entitled to summary judgment.

¶4 Second, the Connaughtys argue that the circuit court erroneously
denied their motion to amend their witness list in response to Transformations’
brief supporting its summary judgment motion. We conclude that the circuit court
did not erroneously exercise its discretion in denying the Connaughtys’ motion to
amend their witness list. Therefore, we affirm in part, reverse in part, and remand
to the circuit court for further proceedings.

BACKGROUND

¶5 The circuit court “accepted” the following facts for purposes of
summary judgment, and Transformations does not challenge those facts for
purposes of summary judgment.

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¶6 Transformations maintains bylaws that establish the procedures that
comprise the credentialing process for the initial “appointment” and bi-annual “re-
appointment” of medical staff members. During this credentialing process, a
doctor consents to a broad investigation into the doctor’s background.
Transformations’ bylaws provide for the investigation of the doctor for behavior
related to patient safety, ethics, compliance with the law, and compliance with any
of Transformations’ bylaws, policies, and regulations. These bylaws empower
Transformations to pursue an investigation regardless of whether the relevant
conduct takes place “inside or outside” Transformations’ facility. Once appointed
by Transformations, the bylaws require that the doctor conduct the doctor’s
professional practice in an ethical fashion and in accordance with federal and state
law and codes of ethics, including, but not limited to, the American Medical
Association’s code of ethics.

¶7 Siebert applied for initial appointment with Transformations in 2007.
After Siebert was appointed, Siebert’s credentialing application was reviewed
every two years by Transformations’ medical director prior to Siebert’s re-
appointment. Reports compiled by the National Practitioner Data Bank (“NPDB”)
documenting misconduct by Siebert were part of his credentialing applications and
were reviewed by Transformations’ medical director every time Siebert submitted
a credentialing application for reappointment.

¶8 The NPDB reports that Transformations received starting in 2012
and in Siebert’s subsequent reappointment credentialing applications identified
that, pertinent here, when practicing in New York Siebert was sanctioned by the
State of New York Department of Health for having a sexual relationship with a
patient, was investigated for allegations made by another patient, and lost
practicing privileges with multiple medical institutions. Siebert provided

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Transformations with a May 2013 New York Department of Health Office of
Professional Medical Conduct consent order which he signed to resolve the
department’s charges relating to the sexual relationship. Transformations did not
further investigate the New York misconduct identified in the NPDB reports or the
consent order when it reappointed Siebert pursuant to the credentialing process
prior to Keri Anne’s surgery.

¶9 In Siebert’s licensing documents submitted to the State of Wisconsin
in 2010, 2012, 2014, and 2016, Siebert misrepresented the status of his license in
New York.

¶10 Records from a 2013-15 Wisconsin Department of Safety and
Professional Standards investigation into certain of the New York incidents
establish that Siebert falsified a post-operative report regarding one of those
incidents. Transformations did not review those records when it reappointed
Siebert pursuant to the credentialing process prior to Keri Anne’s surgery.

¶11 In February 2018 Siebert performed surgery, including a bilateral
breast augmentation, on Keri Anne in the course of his practice at
Transformations. Before the surgery, Keri Anne selected breast implants that
were 225 to 250 cubic centimeters, but Siebert inserted breast implants that were
350 to 375 cubic centimeters.

¶12 In February 2019, the Connaughtys filed this action alleging, among
other claims, that Siebert violated Keri Anne’s informed consent by inserting
different sized implants from those she selected and that Transformations
negligently credentialed Siebert.

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¶13 Transformations moved for summary judgment dismissing the
negligent credentialing claim, arguing that the Connaughtys’ version of the facts
fails to show a “causal nexus” between Transformations’ credentialing of Siebert
and Keri Anne’s injury from Siebert’s violation of her informed consent. The
circuit court granted the motion based on its determination that Siebert’s prior
misconduct is “too attenuated” from and “dissimilar” to ignoring a patient’s
informed consent.

¶14 Separately, in the course of the parties’ briefing on the summary
judgment motion, the circuit court denied the Connaughtys’ motion to amend their
witness list by adding three witnesses connected to a medical malpractice action
against Siebert concerning a procedure in New York.

¶15 The Connaughtys appeal the summary judgment order and the denial
of their motion to amend their witness list.

DISCUSSION

I. Negligent Credentialing Claim

¶16 “Whether the circuit court properly granted summary judgment is a
question of law that this court reviews de novo.” Schmidt v. Northern States
Power Co., 2007 WI 136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2) (2019-20).2 This court
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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views the summary judgment materials “in the light most favorable to the party
opposing summary judgment[.]” United Concrete & Const., Inc. v. Red-D-Mix
Concrete, Inc., 2013 WI 72, ¶12, 349 Wis. 2d 587, 836 N.W.2d 807.

A. Applicable Legal Principles

¶17 We analyze the Connaughtys’ negligent credentialing claim based
on general principles of negligence. See Johnson v. Misericordia Cmty. Hosp.,
99 Wis. 2d 708, 722-737, 301 N.W.2d 156 (1981) (applying general principles of
negligence to a negligent credentialing claim). Generally, a plaintiff alleging
negligence in Wisconsin must prove four elements: “(1) [a] duty of care on the
part of the defendant; (2) a breach of that duty; (3) a causal connection between
the conduct and the injury; and (4) an actual loss or damage as a result of the
injury.” Coffey v. City of Milwaukee, 74 Wis. 2d 526, 531, 247 N.W.2d 132
(1976). However, even when a claim meets all the requisite elements of
negligence, a court may in addition address whether “as a matter of law, []
considerations of public policy require dismissal of the claim.” Bowen v.
Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 654, 517 N.W.2d 432 (1994).

¶18 Both the elements of negligence and the public policy considerations
include a causation component. Sanem v. Home Ins. Co., 119 Wis. 2d 530, 537-
38, 350 N.W.2d 89 (1984); Morgan v. Pennsylvania General Ins., 87 Wis. 2d
723, 735, 275 N.W.2d 660 (1979). Together, these two components constitute
“legal cause.” Id. As our supreme court clarified over forty years ago, “legal
cause” in negligence actions is made up of two components: (1) cause-in-fact,
which is the third element of a negligence claim and is generally a factual question
for the jury; and (2) public policy considerations, which were formerly referred to
as “proximate cause” and which present legal questions for the court. Id.; see also

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Mackenzie Fandrey v. American Family Mut. Ins. Co., 2004 WI 62, ¶¶10-12,
¶13 n.7, 272 Wis. 2d 46, 680 N.W.2d 345 (noting that legal cause consists of
cause-in-fact and public policy considerations, and that, as to the latter, Wisconsin
has “largely” jettisoned the formerly used term “proximate cause”), and ¶45 (“in
Wisconsin, we use public policy factors, not proximate cause”) (Bradley, A.W.,
concurring). The parties are at times imprecise in their use of terminology relating
to causation in negligence actions. Accordingly, we now clarify the definitions of
these terms and the distinctions among them.

¶19 As stated, one of the two components of legal cause is the third
element of a negligence claim, which requires that a plaintiff prove “a causal
connection between the conduct and the injury.” Coffey, 74 Wis. 2d at 531. This
element is referred to as “cause-in-fact.” Morgan, 87 Wis. 2d at 735. “The test of
cause-in-fact is whether the negligence was a “substantial factor” in producing the
injury.” Id. “[T]here can be more than one substantial factor contributing to the
same result and thus more than one cause-in-fact.” Id.

¶20 In negligent credentialing claims relating to the appointment of
medical staff, the cause-in-fact element comprises two parts: (1) proving that the
doctor’s negligent act was a cause-in-fact of the patient’s injury; and (2) proving
that the negligent credentialing by the appointing facility (such as a hospital or
clinic) was a cause-in-fact of the negligent act of the doctor. Johnson, 99 Wis. 2d
at 711. Thus, a plaintiff alleging negligent credentialing must prove negligence on
the part of the doctor and negligence on the part of the body that credentialed the
doctor. Id. This means that a plaintiff must show a duty on the part of the doctor,
a breach of that duty, and that the breach was a substantial factor in producing the
injury, in addition to showing a duty on the part of the hospital, a breach of that

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duty, and that the hospital’s breach was a substantial factor in producing the
doctor’s negligence.

¶21 This two-part test is identical to that established for claims of
negligent hiring, training, or supervision of an employee. Miller v. Wal-Mart
Stores, Inc., 219 Wis. 2d 250, 261-62, 580 N.W.2d 233 (1998). In that case, the
court stated, “the causal question is whether the failure of the employer to exercise
due care was a cause-in-fact of the wrongful act of the employee that in turn
caused the plaintiff’s injury.” Id. The court explained that this means that:

there must be a nexus between the negligent hiring,
training, or supervision and the act of the employee. This
requires two questions with respect to causation. The first
is whether the wrongful act of the employee was a cause-
in-fact of the plaintiff’s injury. The second question is
whether the negligence of the employer was a cause-in-fact
of the wrongful act of the employee.

Id. Thus, “causal nexus,” which is one of the terms used by the parties in their
briefing, is simply a term for the cause-in-fact element of negligence defined
above.

¶22 The other component of legal cause comprises “considerations of
public policy.” Morgan, 87 Wis. 2d at 737 (“public policy considerations are an
element of legal cause, though not a part of the determination of cause-in-fact”);
Fandrey, 272 Wis. 2d 46, ¶¶12-13, 15. The public policy considerations require a
court to determine whether any of the following six factors exist, so as to prelude
liability:

(1) The injury is too remote from the negligence; or (2) the
injury is too wholly out of proportion to the culpability of
the negligent tortfeasor; or (3) in retrospect it appears too
highly extraordinary that the negligence should have
brought about the harm; or (4) because allowance of
recovery would place too unreasonable a burden on the

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negligent tortfeasor; or (5) because allowance of recovery
would be too likely to open the way for fraudulent claims;
or (6) allowance of recovery would enter a field that has no
sensible or just stopping point.

Morgan, at 737. Any one of these public policy factors may be invoked to limit
liability. See, e.g., Kidd v. Allaway, 338 Wis. 2d 129, 143, 807 N.W.2d 700
(2011) (precluding liability under the second public policy factor). A court may
consider the public policy factors “to assure that ‘in cases so extreme that it would
shock the conscience of society to impose liability, the courts may step in and hold
as a matter of law that there is no liability.’” Fandrey, 272 Wis. 2d 46, ¶15
(quoting Pfeifer v. Standard Gateway Theater, 262 Wis. 229, 238, 55 N.W.2d 29
(1952)).

¶23 Here, the public policy factors on which the parties have focused and
on which the circuit court relied relate to the concept of foreseeability or
attenuation, that is, whether it is reasonably foreseeable that the alleged negligence
would cause the alleged injury or, stated conversely, whether the injury is so
unreasonably attenuated such that liability should not be imposed. See Ramharter
v. Madison Newspapers, Inc., 2002 WI App 34, ¶11, 250 Wis. 2d 353, 639
N.W.2d 801 (“The inquiry is whether the negligence would ordinarily and
predictably result in the injuries that occurred in this case …. [T]he
for[e]seeability of the harm resulting from the negligence, … was the core of the
third factor, also was an element in the first, second, and sixth factors.”).

¶24 To recap, a causal connection or nexus is synonymous with cause-in-
fact and involves the substantial factor test, whereas public policy considerations
involve a six-factor analysis to determine whether liability should be precluded
regardless of the existence of cause-in-fact. Both cause-in-fact and public policy
considerations comprise the legal cause necessary to sustain a negligence claim.

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While negligence actions require legal cause simply because legal cause refers to
these two essential, but distinct, components of causation in negligence actions
(cause-in-fact and public policy considerations), legal cause is not its own
independent element or test in negligence separate from cause-in-fact or public
policy considerations. It is crucial to keep these terms for the two different
components of legal cause separate because, not only do they require different
tests, but they are also treated differently by the courts. Morgan, 87 Wis. 2d at
737. Cause-in-fact is a question for the jury. Id.; Fandrey, 272 Wis. 2d 46, ¶12.
Consideration of the public policy factors is a legal question “solely” for the court.
Morgan, 87 Wis. 2d at 737; Fandrey, 272 Wis. 2d 46, ¶12 (quoting Sanem v.
Home Ins Co., 119 Wis. 2d 530, 537038, 350 N.W.2d 89 (1984)).

¶25 Finally, although a court “may grant summary judgment on public
policy grounds before a trial,” it is generally better practice to “submit negligence
and cause-in-fact issues to the jury before addressing” the public policy factors.
Bowen, 183 Wis. 2d at 654 (citing Padilla v. Bydalek, 56 Wis. 2d 772, 779-80,
203 N.W.2d 15 (1973); Pfeifer, 262 Wis. at 240). In particular, the factual
connections in a given case may appear to be so “attenuated” that a full trial
should precede a court’s consideration of the public policy factors. Bowen, 183
Wis. 2d at 655 (“[W]hen the issues are complex or the factual connections
attenuated, it may be desirable for a full trial to precede the court’s determination
[of the public policy considerations].”); Coffey, 74 Wis. 2d at 543 (“The factual
connections are so attenuated that a full trial should precede this court’s
determination of the policy considerations.”). We understand the court in Bowen
and Coffey to mean that, as the factual issues in a case increase in complexity, it
becomes more difficult to ascertain the degree of attenuation present in the
absence of a trial. Under these circumstances, a court may be unable to determine

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whether the degree of attenuation is so great as to render the foreseeability of the
injury unreasonable, consequently necessitating a trial.

B. Analysis

¶26 Here, Transformations appears to presume that, crediting the
Connaughtys’ version of the facts for purposes of summary judgment, the
elements of a negligence claim are met (i.e., that Transformations negligently
credentialed Siebert, that Siebert violated Keri Anne’s informed consent, that there
is a causal connection between the two acts, and that Keri Anne suffered injury as
a result).3 More specifically, with respect to causation, Transformations does not
develop an argument that, crediting the Connaughtys’ version of the facts for
purposes of summary judgment, the Connaughtys have failed to prove the cause-
in-fact element of their negligent credentialing claim. Rather, Transformations
argues that it is entitled to summary judgment dismissing that claim as a matter of
public policy because “the causal connection to [Keri Anne’s] injury [is] too
attenuated.” We now explain why we conclude that, crediting the Connaughtys’
version of the facts at this summary judgment stage of the proceedings,
Transformations fails to establish as a matter of law that it is not reasonably
foreseeable, from Transformations’ negligent credentialing based on its failure to
investigate Siebert’s misconduct in New York, that Siebert would violate Keri
Anne’s informed consent.

3
Separate from its summary judgment motion, Transformations maintains that many of
the facts pertinent to the elements of a negligence claim are disputed. We do not address those
disputes in this opinion. Nothing in this opinion addresses the ultimate admissibility of the
evidence presented by the parties on summary judgment, or precludes the parties from pursuing
factual disputes in further proceedings in the circuit court.

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¶27 The Connaughtys point to facts including that Siebert had a sexual
relationship with a patient, falsified a report of an operation, and misrepresented
his past misconduct on various occasions. The Connaughtys argue that these
instances of unethical and dishonest conduct could reasonably make it foreseeable
that he would ignore a patient’s informed consent.

¶28 Transformations asserts in a conclusory manner that there is no
relationship between Siebert’s past misconduct and his violation of Keri Anne’s
informed consent. Transformations argues that ethical considerations are not
relevant to a doctor’s handling of informed consent and that nothing in Siebert’s
past misconduct shows a “propensity” for ignoring a patient’s informed consent.
Accordingly, Transformations argues, the connection between the two is “too
attenuated to sustain the [negligent credentialing] claim.”

¶29 We reject Transformations’ arguments on this topic as unsupported
by the facts credited as true for purposes of summary judgment. It cannot be said
as a matter of law that is not reasonably foreseeable, based on those facts, that the
injury to Keri Anne from the violation of her informed consent would follow from
the credentialing of a doctor with the record of unethical and dishonest conduct
that exists here. Transformations’ bylaws mandate, as part of its credentialing
process, investigations of all records pertinent to the doctor’s “ethical
qualifications,” and Siebert’s ethical misconduct here could reasonably bear on his
truthfulness and ethical character in handling a patient’s informed consent.
Similarly, the bylaws also require that doctors be honest with their patients, and
Transformations’ medical director testified that a doctor’s dishonesty could result
in harmful consequences to patients.

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¶30 We conclude that Transformations fails to show as a matter of law
that the record of a doctor’s past unethical and dishonest conduct of the kinds
described here has “too attenuated” a connection to whether the doctor would
violate a patient’s informed consent. More specifically, the connection between
Siebert’s past ethical misconduct and his violation of Keri Anne’s informed
consent is not so unreasonably attenuated as to render his violation of her
informed consent unforeseeable. Accordingly, the Connaughtys’ negligent
credentialing claim was erroneously dismissed on summary judgment.

¶31 We stress that our conclusion is based on consideration of the
Connaughtys’ version of the facts, which was credited by Transformations and the
circuit court for purposes of summary judgment. However, as noted above, it is
apparent from the parties’ briefing that, outside of summary judgment, many of
the facts and the admissibility of the evidence from which the facts are taken are
strenuously disputed. The factual complexity of this case supports our conclusion
reversing dismissal on summary judgment of the Connaughtys’ negligent
credentialing claim based on the public policy factors related to foreseeability and
attenuation. Indeed, this presents as the kind of factually complex case that
warrants a full trial, after which the circuit court may address the public policy
factors based on the facts found by the jury. See Bowen, 183 Wis. 2d at 653-54.

¶32 The complex nature of the facts in this case also distinguishes it
from the unpublished authored opinion cited by the circuit court in its summary
judgment decision. In that opinion, this court reviewed the dismissal on summary
judgment of a claim of negligent hiring against Big Brothers and Big Sisters of
Metropolitan Milwaukee for hiring as a volunteer a person who subsequently

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sexually assaulted the plaintiff. Doe v. Foley, No. 2019AP667, unpublished slip
op. (WI App Aug. 18, 2020).4 This court affirmed because none of the evidence
comprising the volunteer’s “prior convictions for financial crimes and operating
while intoxicated” reflected that the volunteer had “a propensity” to commit a
sexual crime. Id. at ¶8. Here, however, Transformations fails to show as a matter
of law that the credited facts of Siebert’s past unethical and dishonest conduct do
not reasonably reflect “a propensity” for (i.e., are not “too attenuated” from)
handling Keri Anne’s informed consent in an unethical and dishonest manner so as
to ignore her informed consent.

¶33 Transformations appears to argue that we should only look to
technical competence, and not ethical concerns, when determining whether there is
causation. However, Transformations cites no legal authority to support such a
proposition, and the law is to the contrary. In Johnson, 99 Wis. 2d at 734-35, the
court makes numerous references to the ethical principles that are at stake in
credentialing medical professionals. For example, the court states that “[a
hospital] should [] solicit information from the applicant’s peers, including those
not referenced in his application, who are knowledgeable about his [or her]
education, training, experience, health, competence and ethical character.” Id. at
745 (emphasis added). The court also states, “[o]bviously, the promotion of
quality care and treatment of patients requires hospitals to perform a thorough
evaluation of medical staff applicants from the standpoint of professional
competence, ethics, established reputation, and further, to periodically review the
qualifications of its staff.” Id. at 734-35 (emphasis added).

4
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

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¶34 As to the responsibility of hospitals in credentialing doctors, the
court states, “[h]ospitals, like doctors, must, above all else, be concerned with the
welfare of their patients and must establish basic procedures to prevent subjecting
them to harm and injury by physicians and surgeons who fail to possess an
adequate level of technical skill, competence and ethical principles.” Id. at 735.
As to the duties imposed by the Wisconsin legislature, the court states that the
applicable regulations “clearly and without qualification obligate[] hospitals to
extend medical staff privileges to only those physicians who are qualified ‘legally,
professionally and ethically.’” Id. at 736. In commenting on the law in another
jurisdiction, the court notes, “Arizona also requires hospitals to take reasonable
steps to give their patients assurance that the physicians and surgeons to whom
they grant clinical privileges are licensed, well trained and qualified, both ethically
and technically to practice medicine and surgery in their facilities.” Id. at 728-29.

¶35 In sum, Transformations fails to show that injury resulting from a
doctor’s violation of a patient’s informed consent may not as a matter of law be
reasonably foreseeable when a hospital or clinic credentials the doctor whose past
conduct demonstrates ethical lapses, not only technical incompetence.

II. Amendment to Witness List

¶36 We review a circuit court’s decision on whether to allow an
amendment to a witness list under an erroneous exercise of discretion standard.
State v. James, 2005 WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. A court
properly exercises its discretion when it examines the relevant facts, applies a
proper standard of law and, using a rational process, reaches a conclusion that a
reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320
N.W.2d 175 (1982).

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¶37 The Connaughtys filed a motion to add three witnesses to their
witness list in response to Transformations’ reliance in its summary judgment
motion on deposition testimony of an attorney who investigated Siebert for the
State of Wisconsin Department of Safety and Professional Services. The three
witnesses were a former patient of Siebert’s who filed a medical malpractice
lawsuit against him concerning a procedure in New York, the patient’s attorney
representing her in the medical malpractice suit, and the patient’s dermatologist
who had communications with Siebert regarding the procedure at the center of the
medical malpractice suit. The circuit court denied the Connaughtys’ motion at the
conclusion of a hearing on the motion, after the Connaughtys presented offers of
proof as to the proposed testimony of each of the three witnesses and the parties
presented their arguments.

¶38 We conclude that the record shows that the circuit court properly
exercised its discretion. The court considered whether, consistent with the
scheduling order, the Connaughtys showed good cause for amending it. The court
determined that they failed to show good cause based on the following
considerations. The court found that the Connaughtys’ motion was filed eleven
months after the scheduling order’s deadline for the submission of witness lists,
and long after the Connaughtys were aware of the additional witnesses based on
their own expert’s opinion. The court noted that the scheduling order had already
been amended multiple times and that, at the time of this latest proposed
amendment, it was “way too close to trial to be adding witnesses.” The court
explained that adding the witnesses so close to trial “would be severely prejudicial
to the defense” by introducing unproven allegations as to a procedure in New
York, resulting in the potential introduction of improper other acts evidence and “a
trial within a trial” as to whether Siebert was negligent in the New York matter.

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The court also noted that the Connaughtys’ expert could reference the documents
and records, including those from the New York licensing department and the
Wisconsin Department of Safety and Professional Services, regarding what
happened in New York as providing the factual basis for his opinion that
Transformations should have further investigated the matter.

¶39 The Connaughtys argue that, in denying their motion, the circuit
court erroneously forbid them from calling rebuttal witnesses whose testimony
they assert “was necessary to show” that the Wisconsin Department of Safety and
Professional Services attorney wrongly concluded that Seibert did not cause
“serious harm” to the New York patient. To the contrary, the court expressly
stated that it would decide whether to allow the parties to call rebuttal witnesses
after the parties presented their evidence at trial. We are not persuaded by the
Connaughtys’ attempt to conflate the court’s decision on a motion to amend a
witness list contrary to a scheduling order with a decision on rebuttal witnesses,
given the record summarized above.

CONCLUSION

¶40 For the reasons stated, we conclude that the circuit court erroneously
granted Transformations’ motion for summary judgment on the Connaughtys’
negligent credentialing claim, and properly exercised its discretion in denying the
Connaughtys’ motion to amend their witness list.

By the Court.—Order affirmed in part; reversed in part and cause
remanded for further proceedings.

Not recommended for publication in the official reports.

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