Perspective
The Next Asbestos
June 6, 2006
By Betsy McCaughey
Every year in this country, two million patients contract
infections in the hospital. Until recently, infection was considered the
inevitable risk you faced if you were hospitalized. That is changing: there is
compelling evidence that nearly all hospital infections are preventable when
doctors and staff clean their hands and adhere to other low-cost infection
prevention measures. These findings put hospitals in a new legal situation. The
assumption that infections are unavoidable shielded hospitals from liability
for decades. But not in the future. Hospital infections could be the next
asbestos.
Infections
are raging through most American hospitals, affecting one out of every 20
patients. The danger is worsening because, increasingly, these infections
cannot be cured with commonly-used antibiotics. In 1974, two percent of
sphylococcus aureus infections were methicillin-resistant (MRSA). By 1995, that
figure had soared to 22 percent, by 2003 to an alarming 57 percent, and now 60
percent and still rising. A few hospitals in the United States are proving that
these dangerous, drug-resistant infections can be nearly eradicated. For
example, the University of Virginia Medical Center and several hospitals in Pittsburgh, including the Veterans Administration Health System, Allegheny General Hospital, and the University of Pittsburgh-Presbyterian Hospital, have reduced MRSA infections
by 85 percent to 90 percent in pilot programs. Twenty nine health care
institutions in Iowa eradicated another deadly drug resistant infection,
vancomycin-resistant Enterococcus (VRE). How did they do it? Through rigorous
hand hygiene, meticulous cleaning of equipment and rooms between patient use,
testing incoming patients to identify those carrying MRSA and other bacteria on
their skin, and taking the precautions needed to prevent the bacteria from
spreading to other patients on gloves, hands, lab coats, uniforms, wheelchairs,
stethoscopes and other equipment. These success stories are documented in a new
report, "Unnecessary Deaths: The Human and Financial Costs of Hospital
Infections" (available at: www.hospitalinfection.org).
In
2003, a committee of the Society for Healthcare Epidemiology of America (SHEA)
urged hospitals everywhere to implement these proven precautions. The Committee
to Reduce Infection Deaths (RID) issued a similar call. We have the knowledge
to prevent infection. What has been lacking is the will.
Public
disclosure may help change that. Seven states — Florida, Illinois, Missouri, New York, Pennsylvania, Virginia, and Connecticut — recently enacted laws to
publicly report risk-adjusted hospital infection rates. Thirty more states are
considering similar legislation. In the future, patients who have to be
hospitalized will be able to find out which hospitals in their area have the
worst infection problems.
The
New York reporting law, signed by Governor Pataki on July 19, 2005, as an
addition to chapter 284 of the Public Health Law, requires hospitals to report
annually to the state health department certain types of infections that
patients develop in the hospital. The state Health Department will collect the
data, risk-adjust it to be fair to hospitals that treat cancer, HIV, and organ
transplant patients who succumb to infection easily, and then make comparative
data available to the public, probably by 2008. The Committee to Reduce
Infection Deaths had proposed that none of the data could "be used in
litigation against an individual hospital," but key lawmakers said such a
provision would have amounted to a "poison pill" preventing the
bill's enactment.
Secrecy
has allowed the infection problem to fester in the past. Though every hospital
has an infection control program, "there is little evidence of control in
most facilities," the SHEA committee reported. Hospitals that continue on
this course will face embarrassing public comparisons and numerous lawsuits as
well.
Most
victims who sue will not be able to prove precisely how the bacteria entered
their body while they were hospitalized. Soon, it may not matter. Jurors will
be told that the hospital failed to enforce hand hygiene rules and implement
necessary infection prevention practices and consequently, should be deemed
negligent and held liable, even strictly liable in some cases, for patients'
infections.
Many
questions will be raised by these lawsuits. At least half of hospital
infections could be prevented if caregivers clean their hands immediately
before touching patients. Most hospitals tell doctors and nurses to clean their
hands, yet doctors break this fundamental rule 52 percent of the time, on
average. When hand hygiene rules are not enforced, infections are foreseeable.
A few hospitals are devising sanctions, such as suspending admitting privileges
or curtailing operating room time to discipline chronic offenders. Will
hospitals that fail to do this be deemed negligent and held liable for the
infections their patients contract?
Astoundingly,
most U.S. hospitals don't routinely test incoming patients for MRSA. Seventy to
ninety percent of patients carrying MRSA are never identified. Knowing which
patients are sources of infection is key to stopping the spread. If you're
placed in a semi-private room with a patient carrying MRSA, you're at increased
risk of infection. Also, as a new study in Infection Control and Hospital
Epidemiology documents, if you're placed in a room previously occupied by a
patient with MRSA, your risk of infection increases, because the bacteria linger
on floors and furniture long after the patient who had it is discharged. Will
hospitals that fail to test incoming patients and isolate those testing
positive be deemed negligent and held liable when a patient contracts a deadly
MRSA infection?
Surgery
patients can reduce their risk of infection by bathing or showering with
chlorhexidine soap daily before their operation. Will a hospital that fails to
advise patients to take this precaution be deemed negligent and held liable
when a patient develops a surgical site infection?
Will
a hospital be deemed negligent and held liable if the staff forgets to
administer a prophylactic antibiotic within an hour of the incision, the
standard of care in most cases, and the patient subsequently contracts a surgical
site infection? What if the staff shaves a patient before surgery, contrary to
best practices, and the patient comes down with an infection?
Even
where there is no evidence that a hospital overlooked infection prevention
measures, the plaintiff's attorney could argue that infection is evidence
enough that the hospital breached its duty. Every law student learns about the
barrel that fell out of a merchant's second-story window, injuring a customer
below. The merchant was held liable because the accident was itself definitive
evidence of negligence, a textbook example of res ipsa loquitur. Similarly,
trial lawyers will claim that an infection "speaks for itself" and
shifts the burden onto the hospital to offer evidence that it was not negligent.
Res
ipsa loquitur already has played a prominent role in medical malpractice cases
in New York. What will be new is its applicability to hospital infection. For
example, in 1997, the Court of Appeals granted a new trial for a plaintiff who
had undergone a hysterectomy and subsequently found an 18-by-18-inch laparotomy
pad left in her abdomen. The Court of Appeals ruled that the jury should have
been told that the error speaks for itself: once the plaintiff proves that
"the event was of the kind that ordinarily does not occur in the absence
of someone's negligence, that it was caused by an agency or instrumentality
within the exclusive control of the defendant, and that it was not due to any
voluntary action or contribution on the part of the plaintiff, a prima facie
case of negligence exists." The Court of Appeals also explained — and this
is key to future litigation based on infection — that "to rely on res ipsa
loquitur a plaintiff need not conclusively eliminate the possibility of all
other causes of injury. It is enough that it is more likely than not that the
injury was caused by the defendant's negligence." Kambat v. St. Francis,
89 N.Y.2d 489.
A
rapidly growing body of new evidence shows that almost all hospital infections
are preventable if hospital staff are trained in the correct procedures and
required to follow them. Had the plaintiff in Hoffman v. Pelletier et al.,
6 A.D. 3d 889 (3rd Dept. 2004), presented such evidence, the trial court
probably would not have granted summary judgment for the defendants. The
plaintiff had developed a staph infection following cervical surgery, and sued
her surgeon and the hospital. The trial court granted summary judgment for the
defendants. "Since plaintiff offered no proof that such infections do not
occur in absence of negligence, res ipsa loquitur was inapplicable,"
reasoned the court. Though such evidence was already available in 2004, it is
far more plentiful and well documented in medical journals now. Even the
federal Centers for Disease Control and Prevention have indicated that they
will soon be releasing new guidelines for infection prevention in hospitals,
based on this new evidence.
What
must hospitals do to avoid liability for infections? That's still unknown.
Courts will decide, "probably moving from common law negligence to the
eventual establishment of strict liability," according to Sanford Young, a
New York lawyer. In the early cases, plaintiffs may have to point to specific
departures from best infection control practices, such as shaving patients before
surgery, to prevail. Exactly how the legal precedents will develop is unknown.
What
is known is that most hospital infections are preventable with certain simple
precautions.
Is
it feasible for hospitals to take these precautions? Can they afford to? The
stunning fact is that they can't afford not to. Infections erode hospital
profits, because seldom are hospitals paid fully for the many extra days of
care when a patient develops an infection. The measures needed to stop
infections require no capital outlays by hospitals and yield a financial return
of at least ten to one, making hospitals more profitable even in the short run.
For example, Dr. Carlene Muto reduced MRSA by 90 percent in a medical intensive
care unit at the University of Pittsburgh. To do so required $35,000 per year
extra on labor and improvements such as gowns and lab tests, but averted about
$800,000 in treatment costs by sparing patients from infection.
Saving
lives and improving profitability should be sufficient motivation for hospital
managers to improve infection control. If not, the looming threat of litigation
is one more incentive. That's unfortunate. Lawsuits are not the best way to
improve patient care. They often result in unfair verdicts, and few truly
injured patients have access to legal remedies (as few as two percent,
according to the Harvard Medical Practice Study). Nevertheless, hospitals that
act decisively will have the best insurance against costly damage awards:
clean, safe care.
Betsy
McCaughey is a former lieutenant governor of New York state, a
health policy expert at the Hudson Institute, and Chairman of the Committee to
Reduce Infection Deaths (RID).