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Avoiding Infection Control Lawsuits - Texas ASC Society Bays.pdf Healthcare Lawsuits And Infection Control The number of claims regarding surgical site infections after surgery is

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  • Avoiding Infection

    Control Lawsuits

    Texas Ambulatory Surgery Center Society

    2019 Annual Conference - Dallas

    Richard Bays JD, MBA, RN

  • Healthcare Lawsuits And Infection Control

    “Healthcare-associated infections kill

    75,000 patients per year.”

    Centers for Disease Control

  • Healthcare Lawsuits And Infection Control

    Infections in the healthcare industry cause

    millions in monetary damages as well as

    thousands of lost lives annually.

    ASC’s must develop legally defensible

    protocols and best practices, train staff to follow

    them, and document that they are being done.

  • Healthcare Lawsuits And Infection Control

  • Healthcare Lawsuits And Infection Control

    A recent study examined 40 infection control related lawsuits.

    Among the 40 cases, 34 were won by the plaintiff.

    The reasons for these judgements were as follows:

    1) Appropriate antibiotics were not used;

    2) Patients were not transferred to a higher level of care;

    3) Surgical site infection control measures were not


    4) Surgical procedures were performed without preoperative

    explanation about possible surgical site infections.

  • Healthcare Lawsuits And Infection Control

    The number of claims regarding surgical site infections

    after surgery is increasing.

    Infection handling was one of the key factors that

    influenced the judgements, and preoperative explanation

    about the possibility of infection was a key factor.

    The study findings were used to help surgeons achieve

    higher patient satisfaction and reduce liability concerns.

  • Healthcare Lawsuits And Infection Control

    Recently a jury awarded $13.5 million to a 40-year-

    old woman who died of a flesh-eating bacteria that

    she contracted during her procedure.

    A verdict was issued for a 69-year-old man who

    contracted MRSA through an IV. The infection

    spread, ultimately resulting in the loss of a kidney

    and a leg. $2.58 million

  • Healthcare Lawsuits And Infection Control

    Association for Professionals in Infection Control and

    Epidemiology (APIC) – “Events that were previously

    thought of as risks are now considered to be

    preventable adverse events, and IPs will play an

    even bigger role in protecting their centers against

    liability in the future.”

    APIC advises IPs to don their legal hats because

    infection rate data that IPs collect could be damaging

    to the center and/or be used against it in a lawsuit.

  • Healthcare Lawsuits And Infection Control

    “Dirty Surgical Instruments Tied to Hundreds of Infections”

  • Healthcare Lawsuits And Infection Control

    A lawsuit was filed a few months ago by 67 patients who

    underwent surgery between 2015 and 2018.

    The patients allegedly developed serious infections at the surgical

    site or in the bloodstream — Hepatitis B, Meningitis, E. coli and

    Staph infections following their surgeries. One patient died after

    developing sepsis and pneumonia following an orthopedic

    surgery, the lawsuit says.

    An investigation by State officials also identified 76 instances in

    which contaminated surgical instruments were brought into

    operating rooms, including tools tainted with "blood, chunks of

    bone, cement, hair and even a dead insect," the State reported.

  • Negligence In A Nutshell

  • Negligence > Duty > Breach > Causation > Damages

    DUTY- One has a legal duty to act as an ordinary, prudent,

    reasonable person taking precaution against unreasonable risk

    of injury to others.

    Actions of a Reasonable Prudent Person (RPP) under same or

    similar circumstances?

    Professionals - Custom establishes standard of care for

    professionals, required to possess and use the knowledge, skill,

    training of others in good standing in relevant geo community.

  • Negligence > Duty > Breach > Causation > Damages

    Breach = Failure to act as a RPP

    Breach of duty = Failure to meet standard of care

    Cause-in-fact (actual cause) = Connects breach to injury

    Damages = must affirmatively prove damages

    Personal injury and property damages are recoverable

  • Court Systems

  • Standards of Care

  • Standards of Care

    The level at which the average, prudent provider in

    a given community would practice.

    It is how similarly qualified practitioners or facilities

    would have managed the patient's care under the

    same or similar circumstances.

  • Standards of Care

    Where are they found?

  • Government Standards

  • Professional Standards

  • Reducing Risks in the ASC

  • Common Issues in Litigation

    Statistics show nearly 1.7 million

    patients get infections each year,

    resulting in 100,000 deaths.

    But statistics also show that 70% of

    healthcare-acquired infections can be


  • Common Issues in Litigation

    Common causes of infections include:

    • Negligence caring for surgical wounds.

    • Contaminated vials which can lead to an infection.

    • Failure to properly sterilize medical instruments and


    • Facility and organizational problems related to HVAC

    systems, water systems, or the placement of beds.

    • Failure of medical professionals to properly wash their


  • Common Issues in Litigation


    RULE §217.11 Standards of Nursing Practice

    The standards of practice establish a minimum acceptable level of nursing

    practice in any setting for each level of nursing licensure or advanced

    practice authorization. Failure to meet these standards may result in action

    against the nurse's license even if no actual patient injury resulted.

    (1) Standards Applicable to All Nurses. All vocational nurses, registered

    nurses and registered nurses with advanced practice authorization shall:

    (B) Implement measures to promote a safe environment for clients and


  • Recommendations

    • Written infection prevention and control program approved by the gov body

    • Designate a qualified health care professional who has training and current

    competence in infection control.

    • A written sharps injury prevention program.

    • Written processes for the cleaning, disinfection, and sterilization of

    instruments, equipment, supplies, and implants based on 1) Nationally

    recognized guidelines, 2) Manufacturer’s instructions for use, 3) State and

    federal guidelines.

    • Written procedures must be available to minimize the sources and

    transmission of infections, including adequate surveillance techniques.

    • Documented education regarding the infection control program.

    • Written policy outlining use of appropriate hand hygiene products.

  • Disclaimer

    The contents of this presentation are intended to convey general

    information only and not to provide legal advice or opinions. The

    contents of this presentation, and the posting and viewing of the

    information, should not be construed as, and should not be relied

    upon for, legal advice in any particular circumstance or fact situation.

    The information presented may not reflect the most current legal

    developments. Further, it may contain technical inaccuracies or

    typographical errors. No action should be taken in reliance on the

    information contained. An attorney should be contacted for advice on

    specific legal issues. An attorney-client relationship may only be

    established through direct attorney-to-client communication that is

    confirmed by the execution of an engagement agreement.

  • Contact Information

    Richard Bays JD, MBA, RN


    Follow on LinkedIn @ FirmenGroup LLC

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