According to the Centers for Disease Control and Prevention (CDC), every year in the United States an estimated 648,000 people develop infections during a hospital stay, and about 75,000 die. That is more than double the number of people that die in automobile crashes each year. Despite the high occurrence of hospital-acquired infections, relatively few medical malpractice cases are brought against hospitals, and even fewer cases are successful.
This fact was pointed out in a Columbia Law Journal article more than a decade ago, in which the author wrote: “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). Little has changed in 16 years since this article was published.
Why are these cases so difficult? There are several reasons. The biggest problem is just obtaining access to the information necessary to even evaluate the case. In hospital-acquired infection cases, the plaintiff must prove that the hospital’s infection-prevention measures were “below the standard of care” and that the hospital’s breach of the standard of care caused the infection. Both of these elements must be proven using a medical expert who will provide an opinion “to a reasonable degree of medical certainty.”
In most medical malpractice cases, the attorney gathers a potential client’s medical records and then evaluates the merits of case. However, in hospital-acquired infection cases, the client’s medical records are generally worthless. Rarely do medical records provide any insight into how the infection was acquired. When there is an infection outbreak at a hospital, the internal hospital investigation records are usually considered confidential peer review records. That means that the plaintiff’s lawyers can neither access nor use these records. There is really no paper trail available to lawyers unless the outbreak somehow ends up in the news.
In addition, to a lack of documentary evidence, the attorney is unable to collect physical evidence. This is because attorneys and their investigators cannot simply walk into the hospital and begin inspecting the operating suites for bacteria and violations of hospital infection prevention policy. Even if they could, the client usually shows up at the attorney’s office months after the acquiring the infection, which makes it unlikely that an inspection would help determine the infection’s source.
However, even if the attorney does find some evidence that the hospital “breached the standard of care” with regard to its infection control policy, the attorney also must prove that the “breach” is what caused the client’s infection. Since, infections can, and do, occur absent malpractice, it is difficult to find experts who will testify to a “reasonable degree of medical certainty” that a particular infection was caused by one particular source. And since infections can occur absent negligence, every hospital will have access to numerous experts who will testify that this patient’s infection was caused by some non-negligent source.
While hospital-acquired infection case are among the most difficult type of medical malpractice cases, there have been some successes over the past decade. In particular, viable claims can be made for health care providers failing to timely diagnose and treat such infections.
And advances in medical technology, including the ability to better identify and analyze infections, means that these kinds of cases may become easier to prosecute in the future. However, considering the significant challenges that hospital-acquired infection cases present, evaluating potential cases requires knowledge and experience.
