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Bar News - February 3, 2006 Litigation: Hospital Infections as a Cause Are Prevalent in Potential Med-Mal Cases By: Ralph F. Holmes When a new client calls about a potential medical malpractice case, chances are he wants to talk about a nosocomial infection, that is, an infection contracted in a hospital. I look at hospital infection cases more than any other type of medical case. This is not due to peculiarities of my practice, but to the prevalence and virulence of these infections. Each year, two million hospital patients develop infections and, of these, 103,000 die as a result, more than die from AIDS, breast cancer, and auto accidents combined. By some measures, hospital infections are the fourth leading cause of death in America today. A significant factor contributing to this trend is the rise of antibiotic resistant infection strains, particularly methicillin-resistant Staphylococcus aureus (“MRSA”) and Vancomycin-resistant Enterococcus (“VRE”). These germs can be transmitted from one patient to another and are found on the hands and clothing of hospital staff and on food trays, medical devices, and other materials used in the care of patients. MRSA and VRE are resistant to most antibiotics and can cause insidious infections that present without overt signs and symptoms. A failure of vigilance by care providers can lead to organ damage, amputation, and death. Sources of Infection Typically, the patient contracts the infection during or following surgery, even minor, routine, elective procedures, such as cosmetic and arthroscopic surgeries. Whether care providers exercised due care is assessed in light of the following: 1. Did the patient have a known prior history of infection with this organism, and, if so, was the correct antibiotic administered prophylactically? 2. What were the signs and symptoms of infection, including elevated BANDS (immature white blood cell count), fever, chills, or suspicious findings in the area of the surgical wound, such as foul-smelling discharge, redness of the skin, swelling, or heightened skin sensitivity? 3. Was a culture taken in timely fashion from the surgical wound to facilitate a pathology diagnosis of the organism? 4. Was an antibiotic sensitive to the organism prescribed in a timely manner and in the correct dosage? Reviewing the Medical Records Attorneys familiar with the medical terms and the concepts can make an initial assessment of these issues by reviewing the medical records. Based on this review, it can be determined whether to recommend further evaluation by experts, which may include an infectious disease specialist and/or a surgeon. If the experts find that poor care contributed to cause the patient’s injuries, then damages experts, such as a life-care planner and an economist, are retained. Once suit is brought, factual discovery will likely include requests for production of the infection policies of the hospital. The hospital likely will have special protocols for the handling and monitoring of patients with MRSA and VRE. Indeed, some hospitals now mandate that patients with MRSA and VRE be quarantined in separate rooms with separate equipment and that staff wear disposable gowns whenever entering these rooms. Conducting discovery into whether a client’s infection emanated ultimately from another patient is difficult. The confidentiality of medical records under RSA 329:26 makes it virtually impossible for counsel to find out the identity of other patients who suffered from the same type of infection and to assess whether there might be a causal link between the two. To the extent the hospital has investigated the issue, it will likely claim its investigation is privileged from discovery under RSA 151:13-a as the proceedings of a quality assurance committee. Privacy Hinders Prevention This inability to obtain adequate information exists not only for counsel after the fact, but also beforehand for the would-be patient who wishes to make an educated choice among hospitals in arranging for surgery. Although a hospital’s statistical incidence of MRSA and VRE is perhaps the most valuable information a prospective patient could have, the information is unavailable. As consumers, we have more and better information when making less important decisions. We can find out the crash test rating of a car, but not the infection rating of a hospital. While some broad statistical information is available from the Bureau of Disease Control and Health Statistics of the Division of Public Health Services, New Hampshire currently does not maintain a registry of the statistical incidence of hospital-developed infections. As the problem of nosocomial infections grows, perhaps the legislature will require more disclosure of such critical information to the public, which should in turn further incentivize hospitals to minimize the risks of these often catastrophic complications. Ralph F. Holmes is a partner with McLane, Graf, Raulerson & Middleton and handles complex personal injury, commercial, and probate litigation. |
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