Until recently, infection was considered the inevitable risk you faced if you were hospitalized. That is changing. Now there is compelling evidence that nearly all hospital infections are preventable when doctors and staff clean their hands and adhere to other low–cost infection prevention measures. These findings put hospitals in a new legal situation. The assumption that infections are unavoidable shielded hospitals from liability for decades. But not in the future. Hospital infections could be the next asbestos.
The Society for Healthcare Epidemiology of America and the Committee to Reduce Infection Deaths (RID) have urged hospitals everywhere to implement the precautions that have nearly eradicated drug–resistant infections in Holland, Finland, Denmark, and in the few hospitals in the U.S. Hospitals that continue to ignore this call will face embarrassing public comparisons and numerous lawsuits as well.
Most victims who sue will not be able to prove precisely how the bacteria entered their body while they were hospitalized. Soon, it may not matter.
Jurors will be told that the hospital failed to enforce hand hygiene rules and implement necessary infection prevention practices and, consequently, should be deemed negligent and held liable, even strictly liable in some cases, for patients’ infections.
Many questions will be raised by these lawsuits. According to the CDC, at least half of hospital infections could be prevented if caregivers clean their hands immediately before touching patients. Most hospitals tell doctors and nurses to clean their hands, yet doctors break this fundamental rule 52% of the time, on average. When hand hygiene rules are not enforced, infections are foreseeable. A few hospitals are devising sanctions, such as suspending admitting privileges or curtailing operating room time to discipline chronic offenders. Will hospitals that fail to do this be deemed negligent and held liable for the infections their patients contract?
Astoundingly, most U.S. hospitals don’t routinely test incoming patients for MRSA. Seventy to ninety percent of patients carrying MRSA are never identified. Knowing which patients are sources of infection is key to stopping the spread. If you’re placed in a semi–private room with a patient carrying MRSA, you’re at increased risk of infection. Also, as a new study in Infection Control and Hospital Epidemiology documents, if you’re placed in a room previously occupied by a patient with MRSA, your risk of infection increases, because the bacteria linger on floors and furniture long after the patient carrying these bacteria is discharged. Will hospitals that fail to test incoming patients and isolate those testing positive be deemed negligent and held liable when a patient contracts a deadly MRSA infection?
Surgery patients can reduce their risk of infection by bathing or showering with chlorhexidine soap daily before their operation. Will a hospital that fails to advise patients to take this precaution be deemed negligent and held liable when a patient develops a surgical site infection?
Will a hospital be deemed negligent and held liable if the staff forgets to administer a prophylactic antibiotic within an hour of the incision, the standard of care in most cases, and the patient subsequently contracts a surgical site infection? What if the staff shaves a patient before surgery, contrary to best practices, and the patient comes down with an infection?
Even where there is no evidence that a hospital overlooked infection prevention measures, the plaintiff’s attorney could argue that infection is evidence enough that the hospital breached its duty. Every law student learns about the barrel that fell out of a merchant’s second story window, injuring a customer below. The merchant is held liable because the accident was itself definitive evidence of negligence, a textbook example of res ipsa loquitur. Similarly, trial lawyers will claim that an infection speaks for itself,” and shifts the burden onto the hospital to offer evidence that it was not negligent.
Res ipsa loquitur already has played a prominent role in medical malpractice cases in New York state and elsewhere. What will be new is its applicability to hospital infection. For example, in 1997, the New York State Court of Appeals granted a new trial for a plaintiff who had undergone a hysterectomy and subsequently found an 18″ by 18″ laparotomy pad left in her abdomen. The Court of Appeals ruled that the jury should have been told that the error speaks for itself: once the plaintiff proves that “the event was of the kind that ordinarily does not occur in the absence of someone’s negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and that it was not due to any voluntary action or contribution on the part of the plaintiff, a prima facie case of negligence exists.”
The Court of Appeals also explained—and this is key to future litigation based on infection—that “to rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of injury. It is enough that it is more likely than not that the injury was caused by the defendant’s negligence.”
A rapidly growing body of new evidence shows that almost all hospital infections are preventable if hospital staff are trained in the correct procedures and required to follow them. Had the plaintiff in Hoffman v. Pelletier et al (6 A.D. 889, 775 N.Y.S. 2d. 397, 2004 N.Y. App. Div) presented such evidence, the trial court probably would not have granted summary judgment for the defendants. The plaintiff had developed a Staph infection following cervical surgery, and sued her surgeon and the hospital. The trial court granted summary judgment for the defendants. “Since plaintiff offered no proof that such infections do not occur in absence of negligence, res ipsa loquitur was inapplicable,” reasoned the court. Though such evidence was already available in 2004, it is far more plentiful and well documented in medical journals now.
What must hospitals do to avoid liability for infections? That’s still unknown. Courts will decide, “probably moving from common law negligence to the eventual establishment of strict liability,” according to Sanford Young, Esq., a New York lawyer. In the early cases, plaintiffs may have to point to specific departures from best infection prevention practices, such as shaving patients before surgery, to prevail. Exactly how the legal precedents will develop is unknown.
Lawsuits are not the best way to improve patient care. They often result in unfair verdicts, and few truly injured patients have access to legal remedies (as few as 2%, according to the Harvard Medical Practice Study). Nevertheless, hospitals that act decisively will have the best insurance against costly damage awards: clean, safe care.