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Superbug Prevention and Hospital Liability

posted on Mon, Mar 11 2013 10:43 am by Jonathan Levitas

For over six months in 2011, patients at the National Institutes of Health (NIH) in Washington D.C. were stalked by an invisible, deadly predator. Before it was finally contained, the superbug Klebsiella pneumonia (KP) infected 17 patients, 11 of whom died. This number belies the extraordinary efforts of NIH’s doctors and staff members to halt KP’s spread and save the patients it infected. In fact, the statistics could have been much worse; between May 2006 and December 2007, 223 patients in a Canadian hospital were infected with the superbug C. Difficile, and 91 died. 

NIH doctors and staff were aware of KP’s presence in their facility very early on and went to great lengths to contain its spread, isolating patients behind newly built walls, flooding rooms that had formerly housed them with vaporized hydrogen peroxide, and hiring monitors to ensure staff followed enhanced sanitation rules. That the bacteria were able to thrive for so long is a testament to two characteristics: 1) superbugs cannot be removed from hospitals via adherence to normal sanitation protocols, and 2) they are resistant to nearly every antibiotic. These characteristics make it very difficult to prevent the spread of superbugs, and make infections extremely difficult to treat. A recent report by the Centers for Disease Control — available here — put the mortality rate of superbug bloodstream infections at 40 percent. Therefore, the emergence of KP and other superbugs is a frightening development for patients and caregivers.

For hospitals and their insurers, superbugs also present an important legal problem — namely, what measures must be taken to avoid incurring superbug-related liability? Given that regular sanitation protocols are ineffective at stopping the spread of these bacteria, what enhanced protocols must hospitals put into effect?  These questions are a source of great anxiety to the affected parties, and for good reason. While some of the measures taken by institutions to rid themselves of this threat have been easy and cheap to implement, others have required the construction of new facilities or the purchase of expensive new equipment. Johns Hopkins Hospital, for example, employs robotic devices to disinfect at-risk rooms with a hydrogen peroxide solution so concentrated as to be toxic. Institutions with fewer financial resources may find it difficult to fit such measures into their budgets. Will their failure to do so expose them to liability? In the United States, the answer to this question is: it’s complicated. 

Every hospital owes its patients a duty to conform to a certain standard of care; typically, liability attaches when an institution fails to meet this standard. The standard of care requires, in part, that hospitals maintain safe facilities. Generally, a court determining whether a hospital has done so will consider what actions were reasonable for the hospital to take, under the circumstances. Hospital administrators usually know what actions courts consider reasonable and necessary for them to take because the courts (and occasionally the legislature) will have made this clear through numerous relevant decisions. However, administrators cannot be as certain when new health risks such as superbugs arise because their state’s law may not yet provide clear guidance on the matter. 

Hospital liability law is generally created and administered at the state level, and the development of laws concerning what hospitals must do to avoid superbug-related liability will likely differ across the several states. Therefore, there is no single answer to this question. As more patients are exposed to superbug infections, we can expect that more lawsuits will be filed. These suits, if not settled, will generally be decided by state courts whose opinions will help to develop the law in this area. In time, this process will clarify for hospitals what steps they must take to avoid liability. Until such clarity is achieved, this remains an open and unsettling question. 

This blog was prepared by Jonathan Levitas, student attorney in the Public Health Law Clinic at the University of Maryland Carey School of Law, supervised by Kathleen Hoke, director of the Network for Public Health Law – Eastern Region.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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