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:
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.
“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:
Source of pathogen outbreak not known (%)
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.