Hospital acquired infections have received considerable attention in the news media over the last decade. The CDC reported in April, 2001 that over two million people per year were contracting hospital acquired infections with about 98,000 deaths. The problem with regard to the burden of proof has been the inability to trace the cause of the infection to a particular event arising from negligence, like a breach of sterile technique during surgery. The general consensus among attorneys has been that once an expert testifies that contamination can occur adherence to acceptable standards of practice, the case would most likely end with a defense verdict, unless there is a preponderance of evidence that a breach of the standard occurred independent of the presence of infection.
However, there are some situations in which the type of infection itself brings us to the inescapable conclusion that a gross contamination occurred due to negligence, as in the case of fecal contamination of a surgical wound or implanted device. Human feces contain 75 different types of bacteria, a portion of which exists there exclusively. Thus, when see a fecal coliform infection in a surgical wound, the blood or cerebrospinal fluid following a surgical procedure, insertion of a catheter in a major vein or skull, we know there was gross contamination with stool, which is inexcusable. Thus, the infection itself could well be res ipsa loquitor [a thing that speaks for itself]. If the bacterial culture is of the type that could have also been a part of the patient’s skin flora, or airborne, the presence of infection by itself does not satisfy the burden of proof.
Case in point: Ms. C, a 62 year old woman, underwent neurosurgery for the removal of a benign tumor in New York City. The surgeons implanted a probe to monitor the intracranial pressure. The probe had a tube that connected it to the electronic monitoring system. The patient became agitated on the third post operative day and the nurse applied wrist restraints in accordance with the doctor’s orders. Two days following, one of the nurses released the restraints during the morning care routine and forgot to reapply them. Within the next half-hour, Ms. C. reached to her head and yanked her skull probe. She then rubbed her fingers on the circular wound. The neurosurgeon replaced the probe, but several days later Ms. C spike a fever of 103.6. The spinal tap revealed that there were fecal coliforms in the cerebrospinal fluid and the patient ultimately died of meningitis. Thus we knew that the patient had contaminated her head wound with feces which was a direct result of the failure to maintain proper restraints. However, even if there was no provable issue with the restraints, fecal contamination of the brain is not an acceptable risk of neurosurgery or intracranial probe and would therefore have been enough to establish proof of negligence.
Additionally, out breaks of infection in a hospital can also become evidence of negligence when an epidemiologist is able to identify the source. For example, a recent outbreak of hepatitis and AIDS among 53 patients of the Veteran Hospitals led government epidemiologists to conclude that more than ten thousand veterans have recently been exposed to transmission of blood born diseases. Six patients tested positive for HIV, 34 had hepatitis C and 13 contracted hepatitis B. Since all of these victims had recently undergone a colonoscopy at one of three VA hospitals, the investigators surveyed the procedure protocols for disinfecting the equipment and found that staff members were not following the equipment manufacturer’s instructions for sterilizing the scopes between patients. Thus the doctors were unwittingly cross-contaminating their patients exposing them to unnecessary risk. The investigators then began to conduct surprise inspections at two hundred additional VA facilities and found the same or similar improprieties in the sterilization of invasive equipment between patients. Thus the multiplicity of infected persons all having the same common denominator, i.e. a colonoscopy at a Veterans Hospital, with documentation of improper instrument cleaning between procedures becomes the evidence that satisfies the burden of proof.
Moreover, when a patient who sustains damages from a hospital acquired infection such as MRSA seeks legal action, the attorney needs to make a demand for the hospital’s epidemiology reports in addition to the hospital records to determine whether there is an identifiable source that infected other patients as well. For example, during a recent outbreak of MRSA in a university medical center, 16 patients had the same infection and they all had surgery in the same operating room within a three-day period. The epidemiology team closed the room and found cultures on instruments and various equipment surfaces. The documentation of this episode is a vital piece of evidence for litigation.
In conclusion, it is clear that hospital acquired infections, which is at the pandemic level across America and worldwide, presents a significant challenge in satisfying the burden of proof in court. Although we know that about 70% of all such complications occur as a result of the negligent failure of hospital personnel to properly wash their hands between patients, the proof of such allegations remains elusive. However, there are many scenarios where we can employ the forensic process to establish that the sepsis, meningitis, wound infection or other type of contamination did indeed result from provable negligence.