Liability for patient’s infection hard to prove — Plaintiff attorneys rarely take cases
Executive Summary
Plaintiff attorneys are starting to look at hospital-acquired conditions as the basis for a cause of action. However, liability is difficult to prove, and damages generally aren’t significant. Successful claims typically involve one or more of these scenarios:
- a widespread epidemic that goes unnoticed resulting in multiple patients being afflicted;
- an abnormally high rate of such illness;
- treatment of the patient’s infection that is below the standard of care
Plaintiff attorneys are starting to look at hospital-acquired conditions as the basis for a cause of action, and some are even advertising related to hospital-acquired conditions, says Sarah E. Swank, JD, a principal at Ober Kaler in Washington, DC.
Plaintiff attorneys are using publicly reported information, such as the Hospital Compare website (http://www.medicare.gov/hospitalcompare/search.html) to show that a hospital knew of its hospital-acquired infection rate and to target specific hospitals, says Swank.
"Claims are typically based on the theory that when physicians follow proper protocols, they are more likely to prevent hospital-acquired conditions," she says.
Difficult to prove
Unless there is an epidemic in the hospital that goes unnoticed and is not timely addressed, resulting in multiple patients being afflicted, most lawyers would decline such a case, says Robert D. Kreisman, JD, a Chicago-based attorney.
"Hospital-acquired infections are not usually related to a specific deviation from the standard of care," Kreisman explains.
Difficult issues of negligent and causation make the cases very challenging for plaintiff attorneys to bring, says Russell X. Pollock, Esq., an attorney with Bergstresser & Pollock in Boston. "Having spoken with a number of potential clients, I understand that a hospital-acquired infection is one of the most frustrating illnesses a patient can get," says Pollock.
Because it is extremely difficult to pinpoint the treating physician responsible for the patient’s infection, this situation offers protection from liability, he says. "We get called on hospital-acquired illness cases quite frequently. We rarely accept such cases, because such illnesses are arguably foreseeable," Pollock says.
Infection is a known risk of surgeries and procedures, he explains, but the firm would consider the case if a particular facility had an abnormally high rate of such illness.
Hospital-acquired infections typically don’t have significant damages, notes Timothy B. Adelman, JD, an attorney with Adelman, Sheff & Smith in Annapolis, MD. "In reality, the case with big damages are the ones being brought, such as a brain-damaged baby, failure to diagnose an injury causing permanent damage, or surgical injuries. There has to be enough money in the case to pay for experts and lawyers," he says.
Standard of care
Successful cases usually focus on extremely widespread outbreaks of an infection or an outbreak of an unusual pathogen, Pollock says. The institution, not the physician, is typically the target, he says.
However, a successful suit against a physician is possible if the treatment of the patient’s infection is below the standard of care, says Kreisman. A physician could be held liable for a hospital-acquired infection if the blood tests show an elevated, abnormal white cell count, but no medical treatment is given, for example.
The best approach is for physicians to be upfront with patients about the hospital-acquired infection and any resulting complications, advises Adelman.
"In our experience, this has helped mitigate any further action by the patient," he says. Hospitals are usually proactive in waiving charges or providing additional services at no cost, and it’s important for the physicians to follow suit, even if it’s unclear how the infection occurred, adds Adelman.
If this is done on a hospital/physician/patient level, not at an attorney level, most of the time it will be amicable and less expensive," he says.
The question will become whether the physician should have noticed the infection sooner and whether they followed protocol, says Adelman. Every expert who looks at a case like this will acknowledge that infections occur, he says, but the important question is, "Did the doctor identify it early on, and take appropriate steps to treat it?"
"Or did the [physician assistant] PA round on the patient a day later and didn’t see it, and the patient was discharged home and nobody caught it?" asks Adelman. "One concern is whether physicians are getting enough information from their extenders about the patient’s condition."
- Timothy B. Adelman, JD, Adelman, Sheff & Smith, Annapolis, MD. Phone: (410) 224-3000. Fax: (410) 224-0098. Email: [email protected].
- Robert D. Kreisman, JD, Attorney, Chicago. Phone: (312) 346-0045. Fax: (866) 618-4198. Email: [email protected].
- Russell X. Pollock, Esq., Bergstresser & Pollock, Boston. Phone: (617) 682-9211. Fax: (617) 451-1070. Email: Russ@
bergstresser.com
- Sarah E. Swank, JD, Principal, Ober Kaler, Washington, DC. Phone: (202) 326-5003. Fax: (202) 336-5302. Email: [email protected].
