Nosocomial Infections, the next Rainmaker for Personal Injury Attorneys?

If you live where I do, you'd think that Personal Injury (PI) attorneys are doing quite well for themselves. They dominate the media here, pitching their services on TV, radio, billboards, bus benches, etc. While medical malpractice is a staple for attorneys, we now see an effort to find clients who've suffered from a Hospital Acquired Infection (HAI). Here's an example of PI marketing targeting nosocomial infections:

"Hospitals Are Profiting From Their Mistakes at Our Expense | Colorado Personal Injury Lawyers

In no other business that I know of, can you turn a profit when you sell a defective product or service. If the television set you purchased at your local electronics store doesn’t work when you get home, you take it back to the store and get a refund or exchange. When the mechanic doesn’t repair the brakes on your car properly, you don’t pay him until they’re fixed. If the bread you buy at the grocery store is moldy you take it back and get fresh loaf.

Back what if you can’t take it back? What if there are no exchanges? Suppose you go to the hospital and they cut off the wrong limb or operate on the wrong body part. You can’t take that back. You can’t get an exchange. What if not only did the hospital provided inferior care but charged you for it as well? It happens all the time at hospitals all over the United States.

An article in the Journal of American Medical Association focuses on a common but mostly preventable medical error, urinary tract infections associated with the use of a catheter. In a perverse twist, the hospitals are actually rewarded for bad care.

Urinary catheters are the most commonly used medical devices in hospitals, and account for approximately one million infections annually. That’s 40 percent of all hospital-acquired infections. A urinary tract infection can add a day to a hospital stay; and it can lead to a more serious infection and even death.

(snip)

“All too often, clinicians, hospitals, and payers conclude that some harms are part of the price of doing business. But in many cases they are not,” write Dr. Wald and Dr. Kramer. “When properly designed, financial incentives should provide rewards for desired clinical outcomes, not hospital-acquired harms.’”

Not rewarding hospitals for inferior care? All I can say is, it’s about time!"

Will HAI litigation be the next rain maker for PI lawyers? Before attorneys start the assault, they would be wise to consult epidemiologists. While many HAI can be prevented, proving negligence on the part of a hospital may prove elusive. Take a recent study from the American Journal of Infection Control(1) in which researchers looked at a database of more than 1,500 documented nosocomial outbreaks, with an eye on finding the source of the infection.

I mention this because I would think that attorneys must find the source or cause of a HAI in order to punish the responsible party. Among the findings: the source of the pathogen was unknown for a significant proportion of the outbreaks. Below are outbreak pathogens, followed by the percentage of times their source in an outbreak could not be determined:

Pathogen	Source of pathogen outbreak not known (%)
Staphylococci	43.5%
Pseudomonas	37.2%
Klebsiella	58.3%
Acinetobacter	36.2%
Serratia	31.9%

Clearly, the study has limitations, but if anything it is biased in favor of outbreaks that have a reported source, as those are more likely to be the subject of a published study.

Consider MRSA. According to the CDC, in 2005:

"Approximately 18,650 persons died during a hospital stay related to these serious MRSA infections.

Serious MRSA disease is still predominantly related to exposures to healthcare delivery:

• About 85% of all invasive MRSA infections were associated with healthcare, and of those, about two-thirds occurred outside of the hospital, while about one third occurred during hospitalization.
• About 14% of all the infections occurred in persons without obvious exposures to healthcare."

Trying pointing the finger of blame at a hospital when two-thirds of the MRSA appears to be contracted in the community and then brought into the hospital. Who do you sue?

The bit that I understand about epidemiology tells me that in regards to litigation over HAI, large paydays are not in the cards for PI attorneys. Even with all our diagnostic tools, it is expensive and labor intensive to prove empirically that this bug caused that infection and can from this place. Not impossible, but PI lawyers are going to go where the easy money is. Hospitals are likely to defend themselves with credible medical experts who will educate jurors that infections involve microbiology, epidemiology and the physical environment. Modeling these diverse disciplines is science and art.

Having said the above, I would image that the threat of lawsuits will have more of an impact on healthcare. When you couple that threat and impending regulation changes in reimbursement, hospital administrators are doing the right thing and trying to reduce HAI. Our product, VIGILAIR, is on an excellent resource to help them achieve that goal.

I would be remiss if I didn't comment on the attorney article that opened this piece. The author says that consumers should not pay for services with a negative outcome. I wish all attorneys worked on this premise.

1. Gastmeier, S. Stamm-Balderjahn, S. Hansen, I. Zuschneid, D. Sohr, M. Behnke, R. Vonberg, H. Rüden. Where should one search when confronted with outbreaks of nosocomial infection?. American Journal of Infection Control, Volume 34, Issue 9, Pages 603-605 P.

The war on hospital acquired infections, fighting on two fronts

Ok, so it's an old analogy, but it works. Imagine being at war. You're a general tasked with disrupting the enemy's supply chain. The enemy has trains, boats and trucks that carry supplies, but it also has factories where supplies are built and depots, camps and ports where large quantities of supplies are stored.

What is your bombing strategy? Do you hit the individual vessels of supplies, or do you attack where the supplies are produced and stored?

The answer is you bomb both.

And so it goes for infection control. Enforcing hand washing protocols is a good start. Hands are like the boats and trains; they're vessels that deliver supplies (infections). But if you only attack the supply carriers, some are likely to get through and new routes will open as soon as the old ones are closed.

That's why it is important to also attack the factories and staging places for supplies. For infection control, this means looking at the source of pathogens and the reservoirs in which they hide. Individually each of these tactics are good, but together, their strategic value is much greater.

I thought of this tired analogy after reading a study (1) that says previous contamination of a hospital care area is an excellent predictor of future infection. Here's an overview of the study from infectious disease dot com:

Patients may be at an increased risk for vancomycin-resistant enterococci in health care settings if they are treated in areas where contamination with vancomycin-resistant enterococci has previously occurred, according to the results of a new study, which were published in Clinical Infectious Diseases.

Prior room contamination is highly predictive of vancomycin-resistant enterococci (VRE) acquisition, according to the study’s researchers, who stressed that increased attention to environmental disinfection is warranted to help reduce the risk for VRE infection.

“Everyone on the health care team — from doctors, to nurses, to medical students, to technicians — needs to take personal responsibility for preventing infections,” Marci Drees, MD, from the Center for Outcomes Research at Christiana Care Health System in Newark, Del., and one of the study’s researchers, told Infectious Disease News. “I think for too long we’ve had the attitude that these infections ‘just happen’ and are bad luck, but we now know that many are preventable. Preventing infections comes down to the basics: universal handwashing, wearing gowns and gloves when appropriate and thorough environmental cleaning. It’s easy to cut a corner here and there when you’re busy taking care of patients, but that’s how these infections happen.”
(snip)
Three of the most significant factors associated with the risk for a VRE infection included sharing a room with a VRE-colonized patient, being treated in a room where a VRE-colonized patient had been treated within the past two weeks and being treated in a room with previous positive culture results.

To put a fine point on it, infection control professionals are fighting on several fronts. Hand washing is an important tactic. We should remember, however, that hands don't produce many pathogens--although they do a fine job of transporting them.


Where are the microorganism 'factories'? Among the places in a hospital where microorganisms are produced is the Heating Ventilation and Air Conditioning (HVAC) system. Our staff members have hundreds of data points taken from microbial swabbing of hospital HVAC surfaces. We find that the same microorganisms that cause infection are found thriving on cooling coils, drain pans and water inside hospital air handlers. Pathogens that are commonly cultured on hospital cooling coils include:

• Pseudomonas
• Acinetobacter
• Staphylococcus

VIGILAIR is like a carpet bomber for these pathogens. But unlike bombing, whose effects are transitory, VIGILAIR eliminates reservoirs for microbial growth and prevents them from returning.

Now, onward infection control soldier!



1. Drees M, Snydman DR, Schmid CH, et al. Prior environmental contamination increases the risk of acquisition of vancomycin-resistant enterococci. Clin Infect Dis. 2008;46:678-685.

Study: MRSA Screening Fails to Lower Infection Rates

A new study published in the Journal of the American Medical Association says that universal MRSA screening upon admission to a hospital may not lead to fewer MRSA infections. The study compared two sets of surgery patients who received services at a Swiss hospital.

One group of more than 10,000 patients were screened for MRSA prior to surgery. If they tested positive for MRSA they were isolated and treated with disinfectant and antibiotics. The control group was of similar size and was not screened. Results from the study show no significant differences in the infection rates between the two groups.

From the Chicago Tribune:

"This is what we've been saying all long," said Kathy Warye, chief executive officer of the Association for Professionals in Infection Control and Epidemiology, a group that opposes efforts to mandate MRSA testing.

While screening patients can be a valuable, it's not a "magic wand" and it's not always the best way to deploy a medical institution's resources, said Dr. Stephen Weber, director of infection control at the University of Chicago Hospitals

Critics of the report's findings say the study may've overlooked some pre-existing MRSA reservoirs:

"Dr. Barry Farr, a MRSA expert, noted the Swiss hospital didn't screen patients on medical wards, who probably served as a reservoir of MRSA infections within the institution and skewed the study's results.

About one-third of surgery patients at the Swiss hospital had surgery before measures could be taken to control potential MRSA infections; that may have contributed to the findings, said Dr. Karen Kaul, chair of molecular pathology at Evanston Northwestern Healthcare."

Responses from both sides (pro and con) augment a central argument in VIGILAIR's infection control (IC) strategy.

• We believe that IC is dynamic and multifaceted
• There is no one strategy to eliminate infection
• There are many reservoirs of infection including patients, healthcare workers and the environment
• A prudent IC policy attacks pathogen reservoirs on several fronts simultaneously; bundling strategies works best

So, Now What?

MRSA screening has resulted in significant benefit for other facilities, notably Scandinavian hospitals that have virtually eliminated nosocomial MRSA infection after implementing 100% screening upon admission. This new study is not enough justification for a wholesale discrediting of MRSA screening. It is, however, more evidence that IC is more like a web than a chain. Breaking one link of transmission rarely does the trick.

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