Hospitals fight off infections and lawsuits

Several recent developments indicate that hospitals may face increasing liability for infections that patients acquire in the hospital.

On Nov. 6, a Suffolk County jury awarded $13.5 million to a 40-year-old Hopkinton woman who died of a flesh-eating bacteria that she contracted during chemotherapy treatment at Dana-Farber Cancer Institute.

A number of new state and federal rules will also change the liability landscape for hospitals:

• State regulators unanimously approved a regulation requiring Massachusetts acute care hospitals to report hospital-acquired infections, which the state Department of Public Health will make public online. Health care facilities are required to register for the surveillance system by April 1, with data collection set to begin July 1.

• As of Oct. 1, 2008, Medicare has stopped reimbursing for certain types of hospital-acquired infections.

• The Centers for Disease Control and Prevention recently published guidelines for preventing infections.

• In October, The Joint Commission, which accredits hospitals and health care programs, released a compendium of recommendations for preventing hospital-acquired infections.

‘Inviting lawsuits’

The focus on prevention puts a new onus on health care providers.

The CDC has estimated that over 2 million hospital-acquired infections occur annually, resulting in 90,000 deaths. In long-term care facilities, the CDC estimates that an additional 1.5 million health-care associated infections occur each year.

The goal of the Massachusetts reporting requirement is to help eliminate hospital-
acquired infections completely by 2012, according to the State House News Service.

“It’s a rapidly changing environment. Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don’t follow the proven protocols are inviting lawsuits,” said Betsy McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a non-profit patient safety organization in New York.

“Anyone providing health care to an individual is no longer going to have immunity for transmitting infections,” said Gloria Seidule, an attorney at Seidule & Webber in Stuart, Fla. who is currently litigating a hospital-acquired infection lawsuit involving Methicillin Resistant Staph Aureus (MRSA), a “superbug” that is resistant to most antibiotics and accounts for over 50 percent of staph infections.

Mary Coffey, an attorney at Coffey Nichols in St. Louis, Mo., said “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.

Coffey recently won a $2.58 million verdict for a 69 year-old man who contracted MRSA through an IV that was administered in the ambulance following a heart attack. When doctors inserted a pacemaker, the infection spread, ultimately resulting in the loss of a kidney and a leg.

Seidule said that hospitals in general have not taken the initiative on prevention measures.

“The CDC issued guidelines in 2007 but this knowledge has been around since 1999. Only recently have hospitals even begun to institute the types of control measures to prevent the spread of infections,” she said.

What hospitals can do

There are a number of simple steps hospitals can take to prevent infections.

Some of them are low-tech, like washing hands and training clinicians on preventing recontamination by not opening the privacy curtain once they are in surgical gloves, said McCaughy.

The most effective prevention initiatives are geared toward creating a culture of improving the quality of care, said Eric Booth, chief operating officer of The Leap Frog, a patient advocacy organization in Washington, D.C.

For instance, he said that when a hospital-acquired infection occurs, it’s important for hospitals to conduct an evaluation to determine how it happened.

“Everyone involved in the patient’s care, including doctors, nurses, aides and all ancillary care givers should be involved in the discussion post-incident to discuss in an open forum without risk of penalization what occurred and how to prevent it in the future,” Booth said.

He also suggested that hospitals monitor readmission rates to find out to what extent patients are readmitted for hospital-acquired conditions.

The Joint Commission’s compendium contains strategies for hospitals to address the most common and deadly infections and germs.

P.J. Brennan, M.D. was involved in the creation of the compendium.

“Many of these infections occur every day all year long and many result in the death of patients. It’s important to prioritize and put them at the top of the list, so that hospitals and providers know what they should do,” said Brennan, who is chair of the Health Care Infection Control Practices Advisory Committee (HICPAC), the federal advisory committee that provides guidance to the CDC and HHS on health care-associated infections.

But McCaughy contended that the recommendations in the Joint Commission’s compendium on preventing infections “set the bar too low.”

“Hospitals need to do more than what’s in the compendium. I’m quite confident that it is not rigorous enough, because the standard of care is becoming higher than that,” she said.

She suggests that hospitals take stronger measures, such as enforcing hand hygiene by penalizing those who violate hand-washing rules and screening incoming patients for MRSA.

“About 30 percent of hospitals now screen for MRSA. That will be the standard of care soon because it enables hospitals to isolate patients carrying the germ and prevent it from spreading to other patients through bedrails and other sites,” she said.

McCaughy also advised that a “fool proof” method for avoiding central line-associated blood stream infections is to use a back-up catheter treated with antibiotic that kills the bacteria once it invades the catheter.

“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.

Questions or comments should be directed to the writer at: sylvia.hsieh@lawyersusaonline.com