Boston — A new type of med-mal lawsuit is on the increase — claims based on hospital infections.

Several recent verdicts and settlements illustrate this trend:

On Nov. 6, a jury awarded $13.5 million to a Massachusetts woman who died of an infection caused by flesh-eating bacteria that she contracted during cancer treatment.

On Nov. 14, a Utah woman reached a confidential settlement in a $16 million suit she filed, alleging that a hospital failed to detect necrotizing fasciitis, a flesh-eating bacteria, before and after she gave birth, causing her to lose three limbs and several organs.

In July, a Missouri couple was awarded $2.58 million after the husband contracted a potentially deadly type of staph infection, known as Methicillin Resistant Staph Aureus (MRSA), when doctors inserted a pacemaker. As a result of the infection, the patient lost a kidney and his leg and foot had to be amputated.

The Centers for Disease Control and Prevention (CDC) in Atlanta has estimated that over 2 million hospital-acquired infections occur annually, resulting in 90,000 deaths. In long-term care facilities, the CDC estimates an additional 1.5 million health-care associated infections occur each year.

“This is the next asbestos. Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don’t follow the proven protocols are inviting lawsuits,” said Betsy McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a non-profit patient safety organization in New York.

According to McCaughy, 26 states have passed laws requiring reporting of hospital-acquired infections.

Plaintiffs’ attorneys say that hospitals can no longer argue that these infections are inevitable.

“Anyone providing health care to an individual is no longer going to have immunity for transmitting infections,” said Gloria Seidule, an attorney with Seidule & Webber in Stuart, Fla., who is currently litigating a hospital-acquired infection lawsuit involving MRSA, a “superbug” that is resistant to most antibiotics.

Seidule said that hospitals in general have not taken the initiative on prevention measures, opening the door to litigation.

Mary Coffey, an attorney at Coffey Nichols in St. Louis, said that “a lot of lawyers think they can’t ever trace an infection and that getting an infection in a hospital is not necessarily negligent, which is true. But I would say you can prove it.”

Coffey won the $2.58 million verdict on behalf of a 69-year-old Missouri man who contracted MRSA through an IV that was administered in the ambulance following a heart attack. When doctors later inserted a pacemaker, the infection spread.

Standard of Care Changing

A number of new guidelines and rules are arguably raising the standard of care that applies to hospitals in preventing infections.

As of Oct. 1, 2008, Medicare has stopped reimbursing for certain types of hospital-acquired infections.

Last year, the CDC published guidelines for preventing infections.

In addition, the Joint Commission, a non-profit organization based in Oakbrook Terrace, Ill., that evaluates and accredits health care programs, released a compendium of strategies for preventing infections in October.

Coffey said that the idea that hospital-acquired infections are preventable is gaining credence and “the standard of care is changing.”

“There are CDC standards on infection prevention and lots of published materials that can be used to establish the standard of care,” she said.

However, Coffey noted that causation is often the more contentious issue.

A plaintiff “is going to need an expert to say, ‘If this precaution had been taken, he would not have gotten this infection.’”

In her case, for example, she was able to show that the patient’s IV site was red, tender and swollen, and that the IV had been left in for three days — contrary to CDC guidelines that say an ambulance IV should be switched to a new one upon arrival at the hospital.

She also argued that under CDC rules, the surgeon should have waited to perform heart surgery until the remote site infection cleared up.

Advising Health Care Providers

At a minimum, attorneys that represent hospitals should advise them to have policies on infection prevention, such as hand-hygiene policies. They should also require clinicians to be trained on preventing recontamination by not opening the privacy curtain once they are in surgical gloves.

The Joint Commission’s compendium contains strategies for hospitals to prioritize and address the most common and deadly infections, including central line associated blood stream infections, surgical site infections, urinary tract infections and MRSA.

But McCaughy said the compendium “set the bar too low.”

She suggests that attorneys advise hospitals to take stronger measures, such as penalizing those who violate hand-hygiene rules and screening incoming patients for MRSA.

McCaughy said hospitals and doctors are more likely to be sued over infections if they don’t implement proven methods to prevent them, such as using a back-up catheter treated with antibiotics to prevent central line blood stream infections. 

“Hospitals that fail to use these backup devices are inviting lawsuits, and surgeons who don’t ask hospitals to have these devices will be vulnerable,” she said.

But Coffey said that in most states, the standard of care is “not the very best of care, but … the ordinary care under the circumstances.”

“Until a lot of hospitals start doing these things, it would be difficult to get an expert to say this is what is ordinarily done,” she cautioned.