Infection liability grows, cases harder to defend

Straight talk from an outspoken attorney

Infection preventionists recently received some legal advice, and it wasn't quite as bleak as the old admonition to put everything you own under your spouse's name. But it was close. The sky is apparently the limit for the growing liability of health care-associated infections (HAIs).

"There is a need for more cooperation between the legal community, the risk managers and the infection preventionists," said Russell Nassof, JD, national practice leader of TRC Companies Inc. in Phoenix. "If we don't get this cooperation, unfortunately we are going to be faced with increasing liability for health care-associated infections."

The trends of converging change include government regulations, health care standards, payer reimbursements, and new definitions in the legal standards under which HAIs are viewed, he said recently in Washington, DC, at a conference held by the Association for Professionals in Infection Control and Epidemiology.

"HAIs were previously considered to be an 'inherent risk' from a legal standpoint, but now they have become something that we call a 'serious preventable event,'" Nassof said.

In a sense, infection prevention has been a victim of its own success stories, as the oft-cited reports of the virtual eradication of methicillin-resistant Staphylococcus aureus (MRSA) in Europe are now expected to be repeated stateside. "Back in the 1960s, MRSA infections in places like Scandinavia were sky high, and in these nice little homogenous countries, they were able to get their rates down very low," he said.

Spoken like a true lawyer, and in general Nassof delivered a less-than-optimistic assessment of defending hospitals against HAI claims as reports of zero rates for certain types of infections play out in the national media. "I think with some of the other HAIs, we are going to have a much more difficult time," Nassof said. "But from a legal standpoint [people] are looking at this and saying if they can do it in Hospital A, then we should be able to do it in Hospital B."

Sometimes the solution carries with it new problems of its own, as active screening cultures for MRSA in certain patient populations may open up a new "Pandora's box of problems," he says. "With respect to MRSA there are many issues of prescreening, including funding, logistics, and the legal consequences."

Divergent trends are coalescing and feeding off one another, as federal payers' refusal to pony up for additional costs generated by infections such as catheter-related UTIs has now translated into patient demands for apologies and bill-less discharge, he noted.

"I can tell you as an attorney that it is going to be very difficult to defend a hospital that has apologized and agreed not to [bill] a patient," Nassof says. "You have to put this information before a jury, so is there a way that hospitals can apologize for an error and yet not jeopardize their case. This is an unanswered legal question. [Similarly,] can you agree not to charge the [infected] patient and still successfully defend a claim before the jury?"

The changes in legal standards include a shift in the classic burden of proof, as hospitals suddenly find they have more 'splainin' to do than Lucille Ball.

"Previously, the burden has always been on the patient to prove that in fact that they got sick or incurred an injury in the hospital," Nassof says. "Based on certain cases that went on the in the UK and the recent 'Klotz' case in the U.S., it appears that the burden of proof is now shifting to the hospitals. So if you are an acute care facility, it is now up to you to prove that a patient did not get an HAI. The reason for this change is because there was testimony in many of these cases that hospitals are filthy, dirty places; people go there and get sick, not well; and the rate of infection is rampant in acute care facilities." The key U.S. precedent involved one James Klotz, a St. Louis man who recently was awarded $2.5 million for a debilitating MRSA infection linked to installation of a pacemaker in 2004, according to published reports. "In order to protect themselves from this hospitals are going to need to get more up to speed in their documentation and in their defense of these cases. They need to develop legally defensible data and protocols focusing on what I call the lowest common denominators of HAIs, that is hand hygiene, environmental cleaning, intervention bundles, fail-safe mechanism (i.e., checklists) and doing more audits."

HAIs are getting dangerously close to meeting the definition of "strict liability," he added, another shift in the burden of proof that could make them all the harder to defend.

"You as IPs will need to put on more of a legal hat when you are doing your work," he said. "One of the biggest problems we see is that oftentimes hospitals have the best policies and procedures, yet clearly they are not meeting the goals and the elements of the policies. I can tell it is worse if you have policies and procedures in place and you're not meeting them, than if you had no policies and procedures in place at all. It is easier to defend you. Be sure you are meeting the terms of the policies and procedures you have in place."

By the same token, do not revise policies without supporting documentation. And even if your poor compliance with an infection prevention principle such as hand hygiene, try to get trends moving in a favorable direction and document the movement.

"I can defend you easier if you have trend going in the right direction — even if you are only at 50% [compliance] — than if you have a trend that is going up and down even if you occasionally hit 90%," Nassof said. "The other thing we want to look at all the time is that if you are doing audits, make sure that you do them on a consistent basis."