5 Questions Certified Legal Nurse Consultants Should Develop in Hospital-Acquired Infection Medical Malpractice Cases

Hospitals have long been penalized for high rates of hospital-acquired infections (HAIs) and as Certified Legal Nurse Consultants know, HAIs can have serious, long-term consequences for patients. Hospital-acquired infections have been estimated to cause up to $30 billion in annual medical costs.

This year the Centers for Disease Control and Prevention (CDC) issued a snapshot of state’s efforts to prevent MRSA and other HAIs. Whether it’s something as common as a staph infection, an antibiotic resistant infection such as methicillin-resistant Staphylococcus aureus (MRSA) or Clostridium difficile (C. diff) or as rare and potentially deadly as Ebola, HAIs are a real risk to patients.

The risk though is often unknown, not just to patients, but even to physicians and registered nurses. The FDA recently  issued a safety communication warning that they are closely monitoring the association between Carbapenem-Resistant Enterobacteriaceae (CRE) – a “superbug” – and duodenoscopes which have undergone standard cleaning. The FDA is also working on updating labels and risk information on cleaning procedures for the implicated duodenoscopes. In connection with this CRE issue, a UCLA hospital recently warned 179 endoscopy patients that they were possibly exposed to that same “superbug” after two patient deaths and seven patient infections. The medical and nursing communities are still in shock over this tragedy.

While infection cases are potentially challenging for plaintiffs due to causation issues, they are certainly not a slam dunk for defendants. Here are five questions Certified Legal Nurse Consultants (plaintiff or defense) should develop in any hospital-acquired infection case:

Question #1: Is the infection listed as one of the Centers for Medicare & Medicaid Services (CMS) Never Events?

CMS Never Events include: catheter-associated urinary tract infections (UTI), vascular catheter-associated infections and surgical-site infection following certain procedures and surgeries. While Never Events are not automatically proof of negligence, a Never Event is powerful stuff in the hands of a plaintiff attorney. Since Never Events are non-compensable for CMS purposes, they are strongly indicative of deviations from the standards of care. The occurrence of a Never Event is well worth bringing to the attention of your attorney-client.

Question #2: What policies and procedures are in place to prevent infections and how are these enforced?

The attorney may not be aware of the relevant policies and procedures, so it is your job as the legal nurse consultant to educate your client regarding what to request through requests for production. Absence of relevant policies and procedures regarding infection control practices may be indicative of institutional negligence.

When appropriate policies and procedures are in place, the second part to question #2 is “What did the hospital do to enforce said policies and procedures?”

I’ve personally witnessed healthcare providers commit crimes against hygiene that are clearly against hospital policy and procedure. Simply having a policy in the books doesn’t mean that it’s enforced.

Question #3: Does the hospital have a high rate of infection?

CMS penalizes hospitals for high rates of hospital-based infections. During discovery, the Certified Legal Nurse Consultant should advise the attorney-client to request information regarding infection statistics, reports to CMS and payment penalties levied by CMS. High rates of infection are indicative of deviations from standards of care. The plaintiff attorney still has to prove that a healthcare provider’s deviations from the standards of care caused the infection which is the basis of the lawsuit, but high rates of infection could be plaintiff ammunition.

Question #4: Which healthcare provider(s) negligently caused the infection?

The cause of an infection is one of the hardest things for a plaintiff attorney to prove in an infection case. Timing of when the infection was transmitted is obviously tricky. No one is a witness to the transmission. Infections can occur at any time during the patient’s stay in the hospital. The Certified Legal Nurse Consultant plays an important role in helping to establish the source of the infection. It may be something as simple as bad hand washing practices or as complex as the duodenoscope issue.

Another plaintiff challenge is that patients in hospitals often have immune systems which are already compromised and are thus at greater risk for infections. Pinpointing the cause and relating it to a specific healthcare provider is the biggest challenge for the plaintiff in an HIA case. Frequently the plaintiff must allege that it’s the hospital at large (not a single provider) who is responsible for the infection.

Question #5: Did the negligent transmission of the infection cause the alleged damages?

Your job as the Certified Legal Nurse Consultant is to help the attorney sort through which injuries are due to the HAI and which injuries are due to other factors, such as preexisting conditions or the admitting diagnosis. As the plaintiff legal nurse consultant you don’t want your attorney-client going down rabbit trails. As the defense consultant you want to minimize damages by proving the plaintiff’s alleged damages are not all related to the infection.

The CDC reports that progress is being made in reducing some hospital-associated infections, but they continue to be a huge issue in the U.S. Each day one in 25 U.S. patients contracts an infection. As long as that’s the case there will be infection-related medical malpractice cases. The safest step consumers can take is to stay out of the hospital. When that’s not possible, they and the attorney representing that consumer will need the expertise of a Certified Legal Nurse Consultant. Infection cases can be a puzzle and you get to put on your investigator’s hat.

I’m Just Sayin’

P.S. Comment here to discuss hospital-associated infection cases you’ve consulted on as a Certified Legal Nurse Consultant.