Wednesday, April 1, 2020

The November 2015 issue of Plaintiff explained how to take on a medical malpractice case involving post-operative infections.

The article began with statistics on how hospitals and ambulatory surgery facilities are venues for viruses and bacteria. According to the Centers for Disease Control and Prevention, there were an estimated 721,800 healthcare-associated infections (HAI) in U.S. hospitals in 2011.

Post-operative infections are not an acceptable risk when undergoing medical procedures.  They are not part of the risks a patient consents to when told that there are risks to surgery, though the defense may argue differently.  There is recourse when a health-care provider negligently causes a patient to develop a post-operative infection.

The defense attorney may have an expert who testifies a medical procedure, like most invasive surgeries, carries a risk of infection and that these infections happen even where health-care providers acted with the utmost care and diligence.

Accepted risk does not insulate a medical provider from medical malpractice.  The fact that an infection is an accepted does not relieve health-care providers of complying with the standard of care.  To determine if there is a case for negligence, ask:  (1) Was the infection preventable? AND (2) Was the infection timely and properly diagnosed and treated?

Surgical site infections are preventable when the equipment is sterilized and there is a hygienic and sterile operating environment.  The defense needs to show proper sterilization protocols and that the protocols were followed.

As to the health-care provider’s obligation to exercise reasonable care in the diagnosis and treatment of infection, accepted risk does not immunize health-care providers from the duty to exercise reasonable care in the patient’s treatment. 

Infection symptoms a patient may suffer include fever, warmth at the wound site, increases in redness at the wound site, and abnormal sweating. If symptoms are not investigated, the infection may spread and cause further injury.

An expert is needed to testify on the best medical judgment under the circumstances and explain that whether there is negligence when the result is worse than it may have been if the doctor chose another direction. Whether a method of treatment is “medically accepted” depends on the circumstances that existed at the time the medical decision was made.  Focus on what the doctor knew.