Proving Negligent Hospital-Acquired Infection Through Bacterial Genes

Imagine you are a medical malpractice attorney. Your client, in the hospital for surgery or childbirth or some other invasive procedure, developed an nasty infection, resulting in permanent injuries or death. You order their medical records and their billing records, and you notice that their insurer (it can be a private insurer or Medicare) refused to even pay for treatment of the infection as a “never event.”  You settle on two negligence theories to investigate: whether the hospital-acquired infection was preventable and whether the infection was properly treated.

(Let’s make this hypothetical easy and assume the infection is one of the more common pathways, like central line / bloodstream, pneumonia, or urinary tract infection, and one of the more easily recognizable nosocomial pathogens, like MRSA, Clostridium difficile, or Pseudomonas aeruginosa.)

Now what? Either because you’re a cautious attorney, or because you’re in a state with a certificate of merit requirement, the first thing you do before filing a lawsuit is retain a qualified expert physician, and maybe a nurse as well, to review the case. The nurse gets back to you first, and says the documentation suggests inadequate wound care prior to the diagnosis of the infection, and several undocumented hours when the patient’s vitals weren’t checked. (They refrain from giving you much more by way of an opinion, because that would involve a “medical diagnosis,” which is, by law, outside their expertise.

The physician gets back to you and says they’ve seen this same patient course before, and they’re “sure” it was preventable, and that the hospital failed to diagnose it and properly treat it for about 6 hours. “They never should have had the infection in the first place,” the doctor says, “but the delay in treatment probably didn’t change their overall course too much once the infection took root.” Then, the doctor adds, “I don’t doubt the infection was preventable, but I can’t tie that specific infection to the hospital’s negligence for certain.”

The words “for certain” worry you, because at trial you need to prove both that the hospital was negligent in their infection-prevention measures and that the negligence caused the infection, and most states you know of require a plaintiff prove medical malpractice with expert testimony given “to a reasonable degree of medical certainty,” a dubious and ambiguous phrase, but one that’s the law. Do you have enough to win your case?

You do some legal research, and you come across an arresting sentence in a law review from a dozen years ago: “Despite the overwhelmingly large number of people who die from hospital-acquired infections each year, there are virtually no instances of successful litigation against doctors or hospitals.” Pamela Nolan, Unclean Hands: Holding Hospitals Responsible for Hospital-Acquired Infections, 34 Colum. J.L. & Soc. Probs. 133, 136 (2000).

A little more digging seems to show it’s not so bad — there’s the Kimberly F. v. Mary Hitchcock Memorial Hospital, 9 F.3d 1535 (1st Cir. 1993) case, where a woman in postpartum care could only have developed herpes between the delivery and her return checkup ten days later from the nurses’ failing to properly disinfect after caring for the patient next to her, who had herpes — but it sure seems like Kimberly F. is a rarity. A lot of these cases are dismissed before they ever see a jury, like this case in Kentucky.

Whenever you find someone winning a nosocomial infection case, it turns out to be a case involving the failure to properly diagnose and treat the infection, rather than causing the infection in the first place. In the end you find some unique factual situations — like this case, with a treating surgeon testifying quite clearly that MRSA had to originate from within the spine (and thus a contaminated instrument rather than from the skin) — and generally conclude, like you saw in another law review article, that “The key to increasing the likelihood of success in such cases is obtaining concrete evidence on the possible sources of infection coupled with an expert witness with sufficient skill to examine that evidence.” Robert Steinbuch, Dirty Business: Legal Prophylaxis for Nosocomial Infections, 97 Ky. L.J. 505, 512 (2009).

But you don’t have either the concrete evidence nor the ability to have them examine it.

Welcome to my work. Hospital-acquired infections are a serious and shockingly commonplace matter, causing somewhere around $30 billion in direct medical costs annually — ten times the entire cost of our malpractice liability system — and so every medical malpractice law firm has its fair share of potential clients calling us up to ask what can be done after a severe MRSA or C. difficile or the like infection. The analysis is usually like I wrote above: we look both for negligence in causing the infection and in diagnosing and treating it, but the former often stalls out at the lack of ironclad evidence that courts these days demand of medical malpractice plaintiffs.

As Jacob Sherkow at Stanford’s Center for the Law and Biosciences points out, though, that might be changing due to the recent developments in gene sequencing of bacteria, giving researchers, health professionals and, yes, lawyers, cost-efficient access to tests that can definitively connect one infection to another:

As one can imagine, however, such lawsuits have been incredibly difficult to litigate because of the issue of proof. Did the infection originate at the hospital? Was there a traumatic event? Did the hospital, in fact, fail to observe sterile technique? Was the infection nonetheless inevitable despite a sufficient standard of care? Did the plaintiff’s habits in recovery contribute to the infection?

As I wrote in the comments there, even in cases involving commonplace nosocomial infections like MRSA, the ability to actually compare DNA would go a long way, though it must be noted that we would likely have to be able to get a sample from the doctor’s office or hospital — but clients typically don’t come to us until several months after the incident. Then, of course, there’s the big problem of tampering: if you send notice to a doctor defendant that you’re going to sample their operating room to compare bacteria, I can guarantee you the next thing they’re going to purchase is a couple gallons of bleach.

Thus, the tests probably have their best use in outbreaks in hospitals. But there are some practical problems: in general, infection information is hidden by hospitals from the public, and, in many cases, it’s not even available in discovery. Powell v. Community Health Systems, Inc., 312 SW 3d 496, 507 (Tenn. 2010)(“A majority of jurisdictions that have addressed this issue have held that an infection control committee is a peer review committee when it is engaging in activities aimed at improving the quality of health care.”); cf. Babcock v. Bridgeport Hospital, 251 Conn. 790, 850 (Conn. 1999).

But here’s the kicker: the plaintiff isn’t going to know if they can even get that information about an epidemic, or if the expert report is good enough, until after they’ve filed the suit and have litigated it to summary judgment, scaring off many lawyers from filing these cases in the first place unless the outbreak has already been disclosed publicly. Thus, while I think these tests will help plaintiffs injured by hospital-acquired infections prove their cases, I think the benefits will take some time to filter through the system.

  • MaryE

    so ya heard about the NIH…
    “Regarding the Aug. 23 front-page article “Deadly bacteria stalked hospital”:

    We were dismayed by the National Institutes of Health’s flimsy
    attempt to defend its hospital’s failure to alert the public earlier
    about the 2011 outbreak of devastating, multidrug-resistant Klebsiella
    infections. An NIH spokeswoman noted that reporting such infections is
    not mandated by the Centers for Disease Control and Prevention and
    played down such outbreaks as being “too common to be newsworthy.”
    had an ethical obligation to inform the public about this dangerous
    threat to public health. The extraordinary measures implemented by the
    hospital to combat the outbreak and the fact that the NIH’s
    infection-control specialist was “horrified” upon identifying the second
    patient with the superbug infection last year reflect the serious
    threat the outbreak posed.
    By not alerting the public sooner, the
    NIH denied patients considering inpatient care at its hospital the
    opportunity to weigh the risk of exposure to this superbug against the
    benefits of being hospitalized there and to consider seeking care
    We expect the NIH, operating the premier hospital
    within the U.S. Public Health Service, to adhere to the highest
    standards for timely public transparency regarding serious threats to
    public health. It failed to do so.”

    Michael A. Carome and Sidney M. Wolfe, Washington

    The writers are deputy director and director, respectively, of Public Citizen’s Health Research Group.

    © The Washington Post Company

    • Max Kennerly

      The concealment of nosocomial outbreaks is such a serious problem it’s hard for me to comment on it without getting angry. It is a disservice to the public to hide information about these outbreaks; among other problems, it rewards the careless hospitals with the worst records and discourages diligent hospitals from honestly disclosing their own problems.

      • Pedro

        You should be thankful that a doctor is willing to see you in the hospital in the first place. I know I would not and then you would never have to worry about the subsequent infection…

        • Max Kennerly

          Thanks for your thoughtful, informative comment. Glad to know you think doctors, the single largest segment of the top 1% of earners, should be free from the same standards of personal responsibility and accountability that govern the rest of us.

        • Pedro

          Your fundamental definitions of responsibility and accountability are embarrassingly flawed. Everything revolves around money in your mind but one billion dollars could not convince me to treat you.

        • Max Kennerly

          My fundamental definition of accountability, as it pertains to civil justice, is that people should be responsible for the harm they negligently cause. You’re the one suggesting that rule should apply to everyone except for doctors. Indeed, while asking for special treatment, it seems you’re so well compensated you have the ability to refuse a billion dollars just to do your job. Talk about entitlement.

        • Pedro

          Your assumptions are poor as is your understanding of the medical profession. My compensation is always going down while my interest continues to pile up from my hundreds of thousands of dollars of debt. My refusal of service to you would be for the hope that people like you discover what the alternative of a hospital acquired infection would be. If you are denied the procedure or care you need because of your apparent concerns of infection, what would be the outcome? Would it be worse than an infection? Physicians are the exception as the nature of their work is unlike any other. You have a lack of ability to weigh risks and benefits of medical care. On a side note, many physicians get these infections themselves and therefore your initial “lets make this simple and assume a central line/bloodstream infection” is the point where I began to doubt that you had any ounce of education on the issues you discuss.

        • Max Kennerly

          It’s pretty clear you didn’t really read my post, you just have a bone to pick with lawyers — who you wrongly blame for your declining revenue, as compared to hospital chains and health insurance companies and a general lack of insurance across the populace — and so wanted a place to rant. Well, I gave you one, I hope it made you feel better.

        • jim

          For a lawyer, youre surprisingly awful at debate

        • Max Kennerly

          What’s there to debate? The claim ‘doctors and hospitals shouldn’t be accountable for their negligent mistakes’ is no more a valid argument than ‘I shouldn’t have to obey traffic laws.’

  • Koi Innovation

    I love this post. It is amazing what a veil of secrecy surrounds hospital-acquired infections. We audit hospitals and medical practices (among many other industries) for sanitary conditions and cleaning procedures and applications. These facilities will spend $125k for a UV treatment system for their patient environment, but will neglect the basics of cleaning. There is an entire culture to change.

    • Max Kennerly

      The frustrating part is how simple this is to fix, but how it won’t be fixed unless the hospitals can bill for it. They’ll easily plunk down millions on useless and dangerous robotic surgery machines (because they can bill for them), but won’t put, say, $25,000 into a refresher course for the whole staff on cleaning procedures and maintaining a sterile field.

  • Thanks Max

    Interesting article and very well written. Let’s remind the public of some facts:
    1) The best surgeon can give you an infection with an innocent but lazy anesthesiologist (pls read Loftus 2011)
    2) A lazy infection control nurse will not want to introduce any new processes that may create work for herself. E.g CHLA, USC

    3) Hospital will prefer to pay the malpractice ($3030/bed/year for 2013) rather than have people wash their hands. Revenues is $1.6M/bed/year.

    4) A CEO of a very rich hospital that caters to movie stars claims they have 99% hand hygiene compliance (must not have watched Liar, Liar). I think his name is Prilosec. He also donated millions to DNC while head of the AHA