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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
appropriate;
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
prevented.
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
surroundings.
• Facility and organizational problems related to HVAC
systems, water systems, or the placement of beds.
• Failure of medical professionals to properly wash their
hands.
Common Issues in Litigation
TEXAS ADMINISTRATIVE CODE - PART 11 TEXAS BOARD OF NURSING
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
others;
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
www.FirmenGroup.com
844.459.8866
Follow on LinkedIn @ FirmenGroup LLC
