As hospital infections spread, so do medical-malpractice lawsuits

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Medical-malpractice defense attorney Larry D. McAfee says that while hospitals can implement protocols and policies in an attempt to prevent infections, they ‘can’t prevent every spread.’

A new type of med-mal lawsuit is on the rise — claims based on hospital infections.

Several recent verdicts and settlements illustrate this trend:

* On Nov. 6, a jury awarded $13.5 million to the family of a Massachusetts woman who died of an infection caused by flesh-eating bacteria that she contracted during cancer treatment.

* On Nov. 14, a Utah woman reached a confidential settlement in a $16 million suit she filed, alleging that a hospital failed to detect necrotizing fasciitis, a flesh-eating bacteria, before and after she gave birth, causing her to lose three limbs and several organs.

* In July, a Missouri couple was awarded $2.58 million after the husband contracted a potentially deadly type of staph infection, known as Methicillin-Resistant Staph Aureus (MRSA), when doctors inserted a pacemaker. As a result of the infection, the patient lost a kidney, and a leg and a foot had to be amputated.

The Centers for Disease Control and Prevention in Atlanta has estimated that more than 2 million hospital-acquired infections occur annually, resulting in 90,000 deaths. In long-term care facilities, the CDC estimates an additional 1.5 million health-care associated infections occur each year.

Attorneys for health-care administrators and staff said their clients are well aware of the threat to patient safety posed by hospital-acquired infections. Hospitals have adopted — and are strictly enforcing — protocols and policies to ensure their facilities are as germ-free as possible, that their medical and support personnel wash their hands thoroughly before and after seeing patients and that their maintenance staff regularly disinfect the facilities, the lawyers said.

“What we’re dealing with here is a national phenomenon,” medical-malpractice defense attorney Neal M. Brown said of the threat of hospital-acquired infections. Hospitals, particularly the nationally renowned Johns Hopkins Hospital and University of Maryland Medical Center, are “well-aware” of the danger to patients and are taking strong steps to prevent it, added Brown, a partner at Waranch & Brown LLC in Baltimore.

These efforts, such as screening incoming patients for latent infections, are “truly on the cutting edge” of preventing hospital-acquired infections from being transferred to other patients, Brown said.

Attorney Larry D. McAfee agreed.

“Hospitals do their best and they try to implement protocols and policies to mitigate against bacterial infections of all sorts,” said McAfee, of Gleason, Flynn, Emig & Fogleman Chtd. in Rockville, who specializes in medical-malpractice defense.

These protocols and policies include frequent hand washing by medical and support staff who come into contact with patients, as well as hand washing by maintenance personnel who keep the facilities clean, said McAfee.

“You can do your best,” McAfee said. “You can’t prevent every spread.”

But plaintiffs’ attorneys counter that hospitals can no longer argue that these infections are inevitable.

“Everybody [in the medical community] just took the stance that this was a risk of being in a hospital, but that’s not proving to be true,” said Giles H. Manley, of counsel at Janet, Jenner & Suggs LLC in Baltimore. Manley was a practicing obstetrician/gynecologist for about 20 years before becoming a lawyer.

The rate of patient infection is “close to zero” when health care personnel comply with strict protocols governing the washing of hands, instruments and hospital rooms, Manley added.

Mary Coffey, an attorney at Coffey Nichols in St. Louis, said that “a lot of lawyers think they can’t ever trace an infection and that getting an infection in a hospital is not necessarily negligent, which is true. But I would say you can prove it.”

Coffey won the $2.58 million verdict on behalf of a 69-year-old Missouri man who contracted MRSA through an IV that was administered in the ambulance following a heart attack. When doctors later inserted a pacemaker, the infection spread.

Patient advocate Betsy McCaughy said hospitals, amid the recent wave of lawsuits, are on notice about the threat of hospital-acquired infections and must vigorously comply with the safety protocols to prevent infections — and litigation.

“This is the next asbestos,” said McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a nonprofit patient safety organization in New York. “Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don’t follow the proven protocols are inviting lawsuits.”

Standard of care changing

A number of new guidelines and rules are arguably raising the standard of care that applies to hospitals in preventing infections.

Last year, the CDC published guidelines for preventing infections. In addition, The Joint Commission, a nonprofit organization based in Oakbrook Terrace, Ill. that evaluates and accredits health-care programs, released a compendium of strategies for preventing infections in October.

Coffey said the idea that hospital-acquired infections are preventable is gaining credence and “the standard of care is changing.”

“There are CDC standards on infection prevention and lots of published materials that can be used to establish the standard of care,” she said.

However, Coffey noted that causation is often the more contentious issue.

A plaintiff “is going to need an expert to say, ‘If this precaution had been taken, he would not have gotten this infection.’”

In her case, for example, she was able to show that the patient’s IV site was red, tender and swollen, and that the IV had been left in for three days — contrary to CDC guidelines that say an ambulance IV should be switched to a new one upon arrival at the hospital.

She also argued that under CDC rules, the surgeon should have waited to perform heart surgery until the remote site infection cleared up.

Advising health-care providers

At a minimum, attorneys that represent hospitals should advise them to have policies on infection prevention, such as hand-hygiene policies. They should also require clinicians to be trained on preventing recontamination by not opening the privacy curtain once they are in surgical gloves.

The Joint Commission’s compendium contains strategies for hospitals to prioritize and address the most common and deadly infections, including central line associated bloodstream infections, surgical site infections, urinary tract infections and MRSA, which has accounted for more than 60 percent of hospital staph infections in recent years, according to the CDC.

But McCaughy said the compendium “set the bar too low.”

She suggested that attorneys advise hospitals to take stronger measures, such as penalizing those who violate hand-hygiene rules and screening incoming patients for MRSA. About 126,000 people are hospitalized with MRSA infections each year and about 5,000 die, the CDC reported.

Hospitals have long had policies calling for medical personnel to keep their hands clean before and after seeing patients and for support staff to disinfect the facilities regularly. But historically those policies have not been as strictly enforced as they should have been, Manley said.

But now hospitals have little choice but to beef up their enforcement amid litigation based on hospital-acquired infections, he said.

“Though the policies were in place, they were never enforced,” Manley said. “Now that they’re being enforced, hospitals are seeing a dramatic decrease in the rate of infection.”

The University of Maryland Medical Center has been doing “active surveillance for MRSA” since October 2006, when the staff began noticing many infected patients entering the hospital from the community, said Hal Standiford, former medical director for infection control at the facility.

“We wanted to catch it as it came in the door,” said Standiford, who stepped down as director in October but continues to work part time. Each patient entering the intensive care unit is tested for MRSA upon admission, weekly and again at discharge, he said.

In addition, all patients at high risk for having MRSA are tested upon admission. These patients include those with nondraining skin infections, such as boils or spider bites, said Standiford.

“For all the [infectious] organisms, we have a heightened outlook for them,” he said. “We’re very careful about hand washing for everybody” who works in the medical center, he added.

McCaughy said hospitals and doctors are more likely to be sued over infections if they don’t implement proven methods to prevent them, such as using a backup catheter treated with antibiotics to prevent central line bloodstream infections.

“Hospitals that fail to use these backup devices are inviting lawsuits, and surgeons who don’t ask hospitals to have these devices will be vulnerable,” she said.

But Coffey said that in most states, the standard of care is “not the very best of care but … the ordinary care under the circumstances.

“Until a lot of hospitals start doing these things, it would be difficult to get an expert to say this is what is ordinarily done,” she cautioned.

Sylvia Hsieh writes for Lawyers USA, a sister publication of The Daily Record. The Daily Record Legal Affairs Writer Steve Lash contributed to this story.