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Juries may view CDC guidelines as mandates
"These deadly infections are easily preventable – that's their mindset."
In the increasingly litigious arena of infection prevention, juries are interpreting recommendations by the Centers for Disease Control and Prevention (CDC) as "mandated" standards of care.
As a result, infection preventionists may find their programs legally vulnerable if a decision not to follow an established guideline results in harm to a patient, a health care attorney said recently in New Orleans at the annual conference of the Association for Professionals in Infection Control and Epidemiology.
"These cases are coming directly into infection control departments," said Nicholas McConnell, BA, JD, director of the health law practice group at Jackson & Campbell PC in Washington, DC. "I have worked with a number of infection control officers at hospitals for days on end. There is so much paper in your institutions related to infection control that it is just food for feast by plaintiff lawyers."
Among those papers, of course, are the CDC guidelines chapter and verse, which plaintiff attorneys are likely to seize on as an ironclad standard of care that should have been followed. IPs are well aware that the CDC can be somewhat equivocating in its voluntary recommendations, leaving enough "either/or" room to adopt one policy or another. However, the stronger the CDC's stance on an issue, the greater the legal peril may be to the infection preventionist that ignores it.
For example, the CDC issued a fairly straightforward reminder earlier this year that anesthesiologists should wear a surgical face mask before administering epidurals or other spinal injections. The recommendation was the result of a fatal meningitis infection in a pregnant woman in Ohio being linked to this breach of infection prevention guidelines, the CDC reported.1
The publication of that report in the CDC's Morbidity and Mortality Weekly Report effectively set a strong standard of care going forward, said McConnell, who was involved in a similar case in 2003. "A case involving a woman who presented for a delivery back in 2003 is different from a patient who presents today in terms of the standard of care for masking of anesthesiologists in the performance of epidurals," he said. "Information has moved."
The findings in the meningitis case underscore the need to follow established infection control recommendations during spinal procedures, including use of a mask and adherence to aseptic technique, the CDC stated.
"In the literature you all live with you see all over the place this word 'recommendations,'" McConnell said. "I can tell you in front of a jury, the word "recommendations' is converted to "mandated." If there is a published recommendation, it will get into the hands of a lawyer who's looking at what happened on behalf of an injured claimant and that word will become 'mandated.' In this day and age if there is a spinal procedure of any kind spinal tap, epidural, whatever and there is evidence that the anesthesiologist or other provider failed to mask, [if] there is a subsequent infection the case is indefensible."
Health care lawyers like McConnell may be leery about taking cases to juries because nosocomial infections are now being widely characterized in the lay press as preventable events. Recent headlines include one from the Washington Post citing "deadly yet easily preventable infections," he noted.
"If we don't resolve cases, we are always aware that the jurors ordinarily lay people out in the community will decide what happens," he said. "This is their understanding of what is going on in the infection world. These deadly infections are easily preventable that's their mindset. If you have a bad outcome it is hard to take away from them the knowledge that these things shouldn't happen in a hospital or a surgical setting. They're not supposed to happen."
The three legal questions
A legal case in the medical health care system raises three basic questions that every IP should know:
According to McConnell, typical legal language outlining the standard of care reads as follows:
"The physician or other health care provider (`And that can be the infection control officer in the hospital,' he told attendees) is required to have the same degree of skill, care, and knowledge of a reasonably prudent physician or other provider in his or her specialty acting under the same or similar circumstances."
It is important to note the emphasis on the phrase 'the same degree," he said. "The law admires excellence, but it does not demand it. You are not required in your hospital to have the absolute best or latest technique or device. At some point a lot of this technology will become the standard of care and your institution will be required to have it."
By the same token, individual providers will vary by ability within the established standard of care.
"Not everybody can be the world's best neurosurgeon," McConnell said. "However, everybody who is trained in neurosurgery is expected to function in a reasonable prudent level of professional capacity similar to that of other neurosurgeons."