First published in
The
Lawyers Weekly June 18, 2004, Vol. 24, No. 7
It should be easy - the fact pattern is straightforward enough
Health care workers fail to wash their hands, and health care-associated
infections contribute to 10,000 of the 24,000 annual iatrogenic deaths of
Canadians
So why is plaintiff success in this area of medical malpractice litigation so
elusive? At one operation an elderly woman had a heart valve replaced, another
repaired, and a blocked coronary artery bypassed. The operation was a resounding
success - but she died of a postoperative infection that was contracted in a
prestigious teaching hospital
Vince Lombardi attributed his legendary success as a football coach to
practising the basics. The medical profession develops more dazzling footwork
every year, but gets tripped up on the basics: interpersonal communication,
showing compassion, basic history and examination - and hand hygiene
More than 150 years ago, Hungarian obstetrician Ignaz Philipp Semmelweis reduced
maternal mortality from 18% to 3% by requiring his own team of doctors and
students to disinfect their hands with chlorinated lime after performing
autopsies and before examining labouring women
Hand-washing was not enough
His colleagues’ disbelief and denial - coupled with his lack of diplomacy in
dubbing them “murderers” - caused him to be dismissed from his position as head
of the prestigious Women’s Hospital in Vienna, Austria
Disbelief and denial...are still alive and well today in Canadian hospitals
In studies of adherence to protocols for hand-washing between patients,
compliance rarely exceeds 40%. Casual observation on almost any ward in any
Canadian hospital will confirm these research findings. Infections acquired in
hospital affect nearly 10% of patients and cost tens of millions of dollars
annually
The mini-epidemics that capture public attention - SARS, necrotising fasciitis
and Methicillin Resistant Staphylococcus Aureus - are merely drops in a steady
stream of preventable cross-infection
The problem is systemic, epidemic and endemic. In a systemic sense, every time
an individual caregiver fails to disinfect his/her hands, that single lapse
contributes to death and disablement of patients
Medical malpractice litigation, by contrast, is focused on finding one
caregiver, or a small number, whose individual act(s) of negligence probably
caused a single adverse outcome
Because the delivery of health care is so complex, traditional medical
malpractice litigation strategy can rarely succeed in this area. There are
occasional exceptions, as when two patients develop necrotising fasciitis and
have only simultaneous hospitalization in common
But The Lawyers Weekly is a newspaper not a historical journal
So what’s new? Relatively new (2002) are the U.S. Centers for Disease Control
and Prevention completely revised guidelines for hand hygiene in health care
settings. Soap and water is for the 10% of the time that hands become visibly
soiled; most germs are not killed
90% of the time the prescribed standard routine between handling of patients is
a 15-30 second alcohol-based hand rub. The alcohol evaporates and toweling is
not required. (Rum on the naval surgeon’s amputation stump?) Echoing what
Semmelweis showed more than 150 years ago, washing with soap and water is not
enough. Alcohol hand rub removes - actually kills - live bacteria and viruses
more effectively than water and any soap, regular or antibacterial. Compliance
with the new guidelines has been shown to materially reduce hospital infection
rates
In intensive care units, where a health care worker can need up to 40
hand-hygiene procedures per hour in moving between patients, alcohol hand rub
for 15-30 seconds while walking from bed to bed is far more practicable than
hand-washing with soap and water for 1-2 minutes at a sink. Glycerol in the
alcohol rub is also much kinder to the hands than soap
Correct use of disposable surgical gloves is supplemental, does not prevent
cross-infection and is not a substitute for correct hand hygiene. Incorrect use
of surgical gloves is common and compounds the problem
Not all postoperative infections are caused by cross-infection
Antibiotic-resistance patterns generally distinguish hospital-acquired
infections from those that are caused by germs that are normally present on
healthy skin or mucous membranes
In most instances, circumstantial evidence is insufficient to identify an
individual caregiver who has probably transmitted a germ between patients, so
traditional medical malpractice litigation is thwarted
A systemic approach to medical and nursing negligence is largely uncharted
territory. In cases of nosocomial (hospital-acquired) infection, an argument
might go thus: 1. the plaintiff is one of the 9% of the patients who acquire
infection at this hospital; 2. other patient and family witnesses have testified
that only one in four caregivers comply with hand-hygiene guidelines; 3.
research shows that compliance cuts hospital-acquired infections by four-fifths;
and 4. on a balance of probability, therefore, this patient would not have
suffered a hospital-acquired infection if the team of caregivers had complied
with guidelines
The courts and defence organizations will doubtless take some time to adjust to
this approach, but if enough litigators persistently pursue it, defence counsel
and judges will need to sit up and take notice
Analogous with the current ‘Sunnyside Hospital prostate biopsy suit’, a class
action on behalf of patients who have acquired cross-infection at a particular
hospital could develop similar arguments
Failed hand hygiene is a mundane and frequent factor in iatrogenic injury and
death. Personal injury litigators can by an unorthodox approach both help their
clients recover damages and raise the consciousness of the public and the
medical and nursing professions