Posted by Bill Sandweg on 23 January 2021.
I see a lot of prospective clients who became infected after a hospital stay or after a procedure in a doctor’s office. Sometimes the infection is relatively minor. Sometimes it is devastating. Sometimes it is fatal. I can’t do much for prospective clients who have had relatively minor infections. Oftentimes, I can’t even do much for those with devastating or fatal infections.
In most cases, it is impossible to prove to a reasonable degree of medical probability what was the source of an infection. There are bacteria everywhere. They are on the surfaces we touch. They are on the doctor’s tie or lab coat. They are on our very skin. They are in our mouths. They are floating in the air. Pretty much the same goes for viruses. A viral or bacterial infection must come from somewhere but that somewhere can be anywhere.
Even if you are able to determine the exact source of the pathogen that infected you, you may find it very difficult to prove that your infection was the result of some health care professional’s negligence. It is commonly accepted wisdom that an infection can occur even when a patient is being cared for by the best doctors and the best nurses at the best hospital in the state. The bottom line is that infections can happen without anyone being negligent. For these reasons, it is almost impossible to prove that an infection was caused by the negligent conduct of a particular person. Instead, we have to try a different approach.
When I see an infection case, the question I have to ask is whether the health care providers recognized the infection promptly and took timely and appropriate action. This is where I might be able to help the victim of a devastating or fatal infection. I have to review the patient’s records carefully to see if there were any telltale signs of a developing infection that were missed by the health care team.
Sometimes there are signs that things were going downhill but nothing was done. When I find those signs, that is not the end of the investigation. The next question has to be whether action at that point could have averted the devastation or death caused by the infection. Sometimes infections are like fires in a home or other building. They quietly smolder for a while. During this stage, the fire or infection can be extinguished without much damage. However, if no one notices the smoldering fire, it can erupt with such fury that it cannot be extinguished no matter how hard the fire department tries and the building burns to the ground. The same is true of infections. Sometimes, they can smolder and by the time they erupt into plain view, they have spread so much in the body that it is too late to stop them and the patient dies.
Like all other medical malpractice cases, doctors will disagree about how advanced an infection was by the time it should have been detected and whether any intervention at that time would have made a difference. In every infection case I have ever seen, the defendant health care provider took the position that the infection was discovered as soon as humanly possible and that whatever happened as a result of the infection was going to happen no matter what was done by way of intervention.
Even if I am able to prevail for my client, they don’t get compensated for all of the damage caused by the infection. In these cases, the health care provider is not responsible for the initial effects of the infection. The provider is responsible only for those effects of the infection which could have been avoided, if the infection was discovered and addressed in a timely fashion.
Infection cases are tough cases all around.