Hospital-Acquired Infections Are on the Rise

Last month, we discussed the rising incidence of deaths related to hospital-acquired infections. With the accompanying publicity of the dangers Methicillin-resistant Staphylococcus auereus (MRSA) infection poses, it is not surprising that litigation in this area is also on the rise. When should a MRSA infection be suspected, and what can be done once it is confirmed?

When Medical Testing Is Warranted

If a patient presents to a physician with symptoms of MRSA, the physician fails to properly test, and the MRSA progresses and causes serious injury, the physician is susceptible to a claim for medical malpractice. It is widely accepted that MRSA is easier to treat the earlier it is detected. Nonetheless, even when MRSA is caught early it can be deadly.

MRSA can manifest in a number of ways, including superficial skin lesions, boils and deeper infections, such as pneumonia. It can also cause fever, fatigue, malaise and leukocytosis (an increase in the number of white blood cells). It would be extremely unusual for a medical care professional not to consider MRSA when skin lesions and boils are present, but a physician is more likely to fail to timely diagnose the presence of MRSA when it presents as pneumonia. Obviously, systematic symptoms like fatigue could be misinterpreted by a medical care facility as well.

The culturing is performed by first cleaning the skin with a sterile gauze sponge moistened with saline. The physician then gently swabs the site and sends the swab for screening. Both of the patient's nostrils should be swabbed, as well as all invasive sites, such as lines, ulcers, wounds and dermatitis locations. The physician should always wear gloves when taking cultures. It is very important that the lab is instructed to screen for MRSA only, since results will be available much quicker that way.

A Difficult Case to Make

While medical care facilities certainly can be held responsible for allowing a patient or employee to contract MRSA, a strong claim for blaming the hospital or nursing home is rare. The standard of care does not require physicians and medical care facilities to conduct routine culturing of patients and staff to detect the presence of MRSA. In fact, there are no federal guidelines that mandate screening. And in the absence of suspected exposure or an epidemic, testing (culturing) should only be performed when medically indicated.

Exposure to MRSA is common. In fact, 7% of the population carries MRSA in the fauna in their noses, and additional people carry MRSA in their urine, in an open wound, or in their skin. These carriers display no physical manifestations of the disease, although MRSA is colonizing on them. Carriers can transmit MRSA to other individuals through person-to-person contact (i.e., by shaking hands with a person who is susceptible to contracting the disease).

While MRSA is ubiquitous in the environment, it is not generally believed that individuals are at high risk to contract MRSA from exposure to it from environmental surfaces like a countertop or bed linens. Nonetheless, environmental surfaces should be disinfected to stay clear of MRSA.

Each medical care facility will necessarily have an endemic rate of MRSA. The endemic rate of MRSA is the usual rate, or prevalence, of persons infected and/or colonized with MRSA in a particular facility. So, when a nursing home or hospital patient contracts MRSA, the facility may well be susceptible to a personal injury lawsuit, but the presence of the outbreak itself does not necessarily constitute evidence of negligence on the part of the health care provider.

Even if the affected patient can establish that he or she presented with signs and symptoms of MRSA, that the physician failed to test for MRSA and that it progressed and caused serious injury, the patient still might not have enough to prevail on a claim. Because of the pervasiveness of the disease, the defendant hospital or medical care facility will always attempt to argue that because MRSA is resistant to antibiotics treatment would not have helped anyway. As a result failure to diagnose community-acquired MRSA, which is usually less virulent than hospital-acquired MRSA, is a stronger claim from the causation standpoint. This argument is usually countered by the plaintiff's attorney arguing that the failure to timely diagnose and treat the MRSA, while not guaranteeing success, might have increased the chances of success; or that the failure to timely diagnose and treat increased the risk of harm.

Preparing the Plaintiff's Case

All instances of hospital or nursing home MRSA outbreaks should be investigated by the Centers for Disease Control and Prevention (CDC). The CDC investigation will include analysis of the sanitation efforts made by the facility prior to the outbreak. If the sanitation efforts are below par, a valid personal injury claim exists.

The parties should always request the CDC report through a Freedom of Information Act (FOIA) request, because the report will often guide the entire litigation. In addition, the CDC will usually have cultures of the MRSA on which it has performed microbiological testing. The parties should request samples of the cultures and hire experts to perform their own, independent, microbiological testing.

The most important expert witnesses in the typical MRSA outbreak case are the infectious disease specialist; an epidemiologist; a microbiologist; and a sanitation specialist, who many times is a former medical care employee responsible for sanitation.

The infectious disease specialist is really the only physician who will have the qualifications to opine on cause and effect. (The Infectious Diseases Society of America's website describes infectious disease specialists as medical detectives who examine difficult cases looking for clues to identify the culprit and solve the problem.)

Because MRSA strains have generated markers that can be identified by microbiological testing, a microbiologist is necessary to tie a particular strain to an outbreak. The microbiologist, a scientist who studies microbes, must be familiar with the microbes' environments, how they live, and the effect they have on the world around them.

An epidemiologist is someone who studies patterns of diseases or health risks in population groups, societies, and cultures. The epidemiologist may look at how diseases affect certain populations, how viruses emerge in geographical locations, and/or how diseases can be tracked. His or her job in case preparation and presentation is to explain the science of epidemiology and the methodology used to establish that the instances of MRSA in a particular facility are not endemic, but are in fact epidemic.

A sanitation engineer researches, designs, and builds the various structures and facilities related to the preservation of public health. Professional engineers use their expert knowledge of math, physics, and environmental science to construct efficient sanitation systems that help to control the spread of diseases. This expert is necessary to the litigation for establishing whether the sanitation procedures in effect at the particular facility at the time of the plaintiff's infection met the accepted standard of care in the industry.

Conclusion

Prevention is always preferable to damage control, and there is a lot that health care facilities can do to keep some MRSA infections from occurring. Unfortunately, however, even the best practices will not avoid all of them. That is why, when there is potential for litigation due to an MRSA outbreak, both sides must conduct a thorough investigation into its cause or causes, and secure the help of the right experts.

Brandon Swartz, a member of this newsletter's Board of Editors, is a founding partner of Swartz Culleton PC, Philadelphia. His practice focuses on all types of personal injury cases, including wrongful death and medical malpractice.

Last month, we discussed the rising incidence of deaths related to hospital-acquired infections. With the accompanying publicity of the dangers Methicillin-resistant Staphylococcus auereus (MRSA) infection poses, it is not surprising that litigation in this area is also on the rise. When should a MRSA infection be suspected, and what can be done once it is confirmed?

When Medical Testing Is Warranted

If a patient presents to a physician with symptoms of MRSA, the physician fails to properly test, and the MRSA progresses and causes serious injury, the physician is susceptible to a claim for medical malpractice. It is widely accepted that MRSA is easier to treat the earlier it is detected. Nonetheless, even when MRSA is caught early it can be deadly.

MRSA can manifest in a number of ways, including superficial skin lesions, boils and deeper infections, such as pneumonia. It can also cause fever, fatigue, malaise and leukocytosis (an increase in the number of white blood cells). It would be extremely unusual for a medical care professional not to consider MRSA when skin lesions and boils are present, but a physician is more likely to fail to timely diagnose the presence of MRSA when it presents as pneumonia. Obviously, systematic symptoms like fatigue could be misinterpreted by a medical care facility as well.

The culturing is performed by first cleaning the skin with a sterile gauze sponge moistened with saline. The physician then gently swabs the site and sends the swab for screening. Both of the patient's nostrils should be swabbed, as well as all invasive sites, such as lines, ulcers, wounds and dermatitis locations. The physician should always wear gloves when taking cultures. It is very important that the lab is instructed to screen for MRSA only, since results will be available much quicker that way.

A Difficult Case to Make

While medical care facilities certainly can be held responsible for allowing a patient or employee to contract MRSA, a strong claim for blaming the hospital or nursing home is rare. The standard of care does not require physicians and medical care facilities to conduct routine culturing of patients and staff to detect the presence of MRSA. In fact, there are no federal guidelines that mandate screening. And in the absence of suspected exposure or an epidemic, testing (culturing) should only be performed when medically indicated.

Exposure to MRSA is common. In fact, 7% of the population carries MRSA in the fauna in their noses, and additional people carry MRSA in their urine, in an open wound, or in their skin. These carriers display no physical manifestations of the disease, although MRSA is colonizing on them. Carriers can transmit MRSA to other individuals through person-to-person contact (i.e., by shaking hands with a person who is susceptible to contracting the disease).

While MRSA is ubiquitous in the environment, it is not generally believed that individuals are at high risk to contract MRSA from exposure to it from environmental surfaces like a countertop or bed linens. Nonetheless, environmental surfaces should be disinfected to stay clear of MRSA.

Each medical care facility will necessarily have an endemic rate of MRSA. The endemic rate of MRSA is the usual rate, or prevalence, of persons infected and/or colonized with MRSA in a particular facility. So, when a nursing home or hospital patient contracts MRSA, the facility may well be susceptible to a personal injury lawsuit, but the presence of the outbreak itself does not necessarily constitute evidence of negligence on the part of the health care provider.

Even if the affected patient can establish that he or she presented with signs and symptoms of MRSA, that the physician failed to test for MRSA and that it progressed and caused serious injury, the patient still might not have enough to prevail on a claim. Because of the pervasiveness of the disease, the defendant hospital or medical care facility will always attempt to argue that because MRSA is resistant to antibiotics treatment would not have helped anyway. As a result failure to diagnose community-acquired MRSA, which is usually less virulent than hospital-acquired MRSA, is a stronger claim from the causation standpoint. This argument is usually countered by the plaintiff's attorney arguing that the failure to timely diagnose and treat the MRSA, while not guaranteeing success, might have increased the chances of success; or that the failure to timely diagnose and treat increased the risk of harm.

Preparing the Plaintiff's Case

All instances of hospital or nursing home MRSA outbreaks should be investigated by the Centers for Disease Control and Prevention (CDC). The CDC investigation will include analysis of the sanitation efforts made by the facility prior to the outbreak. If the sanitation efforts are below par, a valid personal injury claim exists.

The parties should always request the CDC report through a Freedom of Information Act (FOIA) request, because the report will often guide the entire litigation. In addition, the CDC will usually have cultures of the MRSA on which it has performed microbiological testing. The parties should request samples of the cultures and hire experts to perform their own, independent, microbiological testing.

The most important expert witnesses in the typical MRSA outbreak case are the infectious disease specialist; an epidemiologist; a microbiologist; and a sanitation specialist, who many times is a former medical care employee responsible for sanitation.

The infectious disease specialist is really the only physician who will have the qualifications to opine on cause and effect. (The Infectious Diseases Society of America's website describes infectious disease specialists as medical detectives who examine difficult cases looking for clues to identify the culprit and solve the problem.)

Because MRSA strains have generated markers that can be identified by microbiological testing, a microbiologist is necessary to tie a particular strain to an outbreak. The microbiologist, a scientist who studies microbes, must be familiar with the microbes' environments, how they live, and the effect they have on the world around them.

An epidemiologist is someone who studies patterns of diseases or health risks in population groups, societies, and cultures. The epidemiologist may look at how diseases affect certain populations, how viruses emerge in geographical locations, and/or how diseases can be tracked. His or her job in case preparation and presentation is to explain the science of epidemiology and the methodology used to establish that the instances of MRSA in a particular facility are not endemic, but are in fact epidemic.

A sanitation engineer researches, designs, and builds the various structures and facilities related to the preservation of public health. Professional engineers use their expert knowledge of math, physics, and environmental science to construct efficient sanitation systems that help to control the spread of diseases. This expert is necessary to the litigation for establishing whether the sanitation procedures in effect at the particular facility at the time of the plaintiff's infection met the accepted standard of care in the industry.

Conclusion

Prevention is always preferable to damage control, and there is a lot that health care facilities can do to keep some MRSA infections from occurring. Unfortunately, however, even the best practices will not avoid all of them. That is why, when there is potential for litigation due to an MRSA outbreak, both sides must conduct a thorough investigation into its cause or causes, and secure the help of the right experts.

Brandon Swartz, a member of this newsletter's Board of Editors, is a founding partner of Swartz Culleton PC, Philadelphia. His practice focuses on all types of personal injury cases, including wrongful death and medical malpractice.