Hospital’s May Now Be Liable For Infections

A recent provocative op-ed piece, published in the Wall Street Journal, describes a successful lawsuit against a surgeon and hospital for an infection acquired during hospitalization. The patient developed a drug resistant infection caused by methicillin resistant staph aureus (MRSA) after an emergent implantation of a pacemaker. As result of the infection, the patient spent more time in the hospital and suffered a great deal of harm. The article notes that many such infections were considered, until fairly recently, as unavoidable. Some infections are avoidable when clinicians take appropriate precautions, such as employing proper hygiene and sterile techniques. The article warns physicians, hospital administrators, and board members that such verdicts will be more common place in the future. Hospital acquired infections cause devastating injuries to patients and significantly increase length of stay and costs. Hospitals are being sued for these “wrongful” infections, despite the fact that their infections rates are near the norm for similarly situated hospitals or that usual and customary precautions were taken by hospital personnel. In today’s legal environment, few infections are tolerable in the hospital setting. Medicare’s characterization of various hospital acquired infections such as catheter, ventilator, and surgical associated as “never events” reinforces this notion. Essentially, Medicare will no longer pay for complications related to these infections starting in October (the no pay rule will be instituted later for ventilator acquired pneumonia). Insurance companies are following Medicare’s lead. In addition, the list of “never events” will be expanded to include other infections as well. One caveat about Medicare’s pronouncement is that there is a strong argument that the government has redefined the “standard of care” in these cases, essentially creating a healthcare version of strict liability. That is, “never events” are preventable and should never occur. This may drastically impact healthcare litigation.

Blood Transfusions and Infections: Is there a Link?
One very significant factor not mentioned by the article is the causal connection between blood transfusions and infection. In fact, few physicians and hospital staff are aware of the current complications and risks associated with transfusion therapy. This is due in part to the lack of training most clinical staff receive related to blood products. It is well known that the risk of infection increases dramatically when a patient receives blood or a blood component as a therapeutic intervention. One unit of blood increases the likelihood of noscomial or hospital acquired infections by 50%. This is likely related to the immunosuppressive effects of blood products or contamination. Approximately 29 million blood products were transfused in 2004 and those numbers continue to grow. Blood transfusions are associated with a host of complications aside from infection including transfusion related acute lung injury (TRALI) and transfusion associated circulatory overload (TACO) to name a few, that far exceed the usual cited HIV or hepatitis risks. We believe that the incidence of many hospital acquired infections will increase until practitioners recognize that exposure to blood products is hazardous to patients and that these products must be used judiciously. The coming storm portended by this article is already here.