Infection Control

Malpractice lawsuits could have more implications for infection prevention

Briefings on Infection Control, April 1, 2009

This is an excerpt from a member only article. To read the article in its entirety, please login.

In the past year, there has been a succession of lawsuits involving HAIs. In July 2008, a Missouri couple was awarded $2.58 million after the husband contracted MRSA and subsequently lost a kidney, a leg, and a foot. On November 6, 2008, a jury awarded $13.5 million to the family of a Massachusetts woman who died as the result of a flesh-eating bacterial infection. On November 14, a Utah woman reached a confidential settlement after filing a $16 million suit when the hospital failed to detect a flesh-eating bacterial infection before she gave birth, causing her to lose three limbs and several organs. More recently, the families of three pediatric cancer patients sued a Tampa, FL, hospital, claiming the children contracted fungal infections because the hospital failed to properly seal off an area during renovations. The Centers for Medicare & Medicaid Services’ (CMS) inclusion of HAIs on its list of “never events” combined with public scrutiny of hospital infections has put intense pressure on hospitals to bolster IC practices. Now, the threat of litigation looms as another potential demand.

A history of infection suits

Historically, infection lawsuits have always been difficult to prove, says Chris Hurley, a managing partner at Hurley, McKenna & Mertz in Chicago. Infection lawsuits are different from other medical malpractice cases because it’s hard to prove where and when the infection occurred. “If somebody’s got an infection, you don’t know if it was from the operating room or from some other place, and so then the problem is if you don’t know where it was transmitted, you can’t really show that the hospital was negligent in some way,” Hurley says. In a court of law, cases rely on hard facts, statistics, or evidence, along with expert witnesses. But with HAIs, that evidence is next to impossible to find since most states do not require public reporting of infections, and you probably won’t find doctors or nurses testifying against each other. “If a doctor amputates the wrong leg, the probable cause is taken care of, but you don’t know when that germ jumped onto the plaintiff and you don’t know if it’s because some guy didn’t mop up properly,” Hurley says. “It’s not like they are going to have a video camera set up to observe hand washing,” notes Leon Aussprung, MD, JD, LLM, a physician attorney in Philadelphia.

This is an excerpt from a member only article. To read the article in its entirety, please login.

Most Popular

Related Articles