INFECTIONS AND LITIGATION LEE S. GOLDSMITH, M.D., LLB JORDAN GOLDSMITH, JD
About once a month we will receive a call from a patient who has suffered a devastating infection while under the care of a physician and wants to know whether it is a potential malpractice case or not. We listen and gain the relevant information but know that many times we are not able to help and while there may be malpractice it is a set of facts that will not allow us to prove that there was medical negligence.
Over the years consulting with infectious disease specialists we have learned what they believe to be medical negligence and what we believe that we can proven.
There are three distinct areas in which there may be actions that can lead to provable negligence.
THE MEDICAL PROVIDER CAUSED THE INFECTION
The patient is in a nursing home and develops a bed sore and an infection. Bed sores can become infected. That in and itself is not negligence. The patient has undergone surgery and develops a wound infection post-operatively. The infection should not occur but does. Was the wound exposed and bacteria flew into the wound; was one of the instruments not sterilized properly; did one of the physicians or nurses fail to properly wash up and bring the organism into the operating room; was the air filtration system in the operating room not operating properly? All potential scenarios but with no way of proving what happened. The infecting organism is generally one that his normally found on human skin or in the air and there is no way that one can proved that it was more than just an unfortunate problem.
We have handled cases where the cause of the infection is clear and the provider responsible. One such example is the case of a woman who was riding a motorcycle which was in an accident and fractured her leg. It was a closed fracture, which means that the skin was not broken and the bone did not come out through the skin. However, her skin was scraped during the accident and there were open wounds on her leg. There was a potential for these wounds to become infected and they were tested to see if there was any infection. They tested positive and the infecting organism was identified. Two days later the surgeon took the patient to the operating room to do an open reduction of the fracture. He had to cut into the skin to get to the bone and in so doing caused the bacteria on the skin to get into the bone causing a devastating infection. We were able to prove that the organism that was causing the infection on the skin was the same one in the bone. The doctor had not cleansed the skin properly and was negligent.
THE MEDICAL PROVIDER FAILED TO PROMPTLY DIAGNOSE THE INFECTION ALLOWING IT TO BECOME WORSE BEFORE BEING TREATED
This is the most common area of negligence. With Physician’s assistants or nurse practitioners supervising after care the ability to diagnosis and begin early treatment of infections has decreased. These individuals usually do not have the skill and knowledge required to make the diagnoses. The signs and symptoms will vary with the area of infection. The problems are fortunately infrequent making the diagnosis for these limited trained practitioners more difficult. They attribute the problems to other potential complications.
Delays in diagnosing the presence of an infection. With surgery on bones, it leads to long time osteomyelitis or bone infection. After gall bladder surgery it may lead to peritonitis and death. With spinal surgery it can lead to encephalitis or paralysis.
It takes a combination of experts to protect the client, and these include a physician from the same specialty as the original surgery as well as the assistance of infectious disease experts. The damages are the long-term complications.
THE INFECTION ONCE DIAGNOSED IS NOT PROPERLY TREATED
Once an infection is suspected leads to the taking of a culture and having it tested in the laboratory. The lab will determine the organism that is causing the infection and the antibiotics that will be effective in treating the organism that is found.
The errors that occur here is that the wrong antibiotic is selected, the dosage of the antibiotic is incorrect and/or the medication is not provided for a sufficient period of time.
This is usually not the case if the treating physician calls in an infectious disease consultant. Failure to call in a consultant may be negligence.
