Should we sue the hospitals?
December 29, 2012 4:37 PM   Subscribe

My father contracted MRSA during a long stay in hospital. Is it worth investigating legal action against the hospital(s)?

About 6 months ago, my 71 year old father had a fall and broke his femur. He was taken to hospital, where they put the metal rod down the bone and screwed everything together. This all seemed to go OK, although his recovery was quite slow mainly due to some pre-existing conditions.

He has had type 1 diabetes since he was 30. Thrice-daily insulin injections for as long as I can remember. About 6 or 7 years ago, he had a heart attack and ended up having coronary bypass surgery. A couple of years later, he developed blood clots in his legs and had to have several stents put in.

He's been fairly frail since the heart surgery, and the leg artery problems basically immobilised him for about a year. But he was improving incrementally. Up until this broken femur, he had got himself to the point that he could walk unaided 1 km or so to the local shops.

OK, back to the recent stint in hospital. While he was recovering in hospital from the operation on his femur, it seems he developed and MRSA infection in the heels of both feet. They put him on heavy antibiotics (IV at first, then tablets), and kept him in hospital. The wounds in his heels were horrific.

After 3 and a half months in hospital, they sent him home. The infection still hadn't cleared up. He was in pretty bad constant pain. He needs a walking frame to get from the Jason recliner we got him to his wheelchair. It is almost impossible to get him in and out of cars since he can't bend one leg more than a few degrees.

He is on a wide array of medications. Aside from the insulin and medication he was already on to deal with his cardiovascular problems, he is also on a strong antibiotic (which actually isn't approved for use in this country yet and he can only get from the hospital who import it from the US), antidepessants, antipsychotics (prescribed off-label for nausea), opiates (lots - he is most certainly addicted).

He has had a district nurse visiting him every second day to change the dressings on his feet.

The first month or so he was home, he appeared to be slowly improving. He was able to move around a bit more quickly, although still either in a chair or on the walking frame.

But the last few weeks, the pain from the infection has gotten a lot worse. He is in constant pain. Getting from his recliner to a weelchair is agony for him. He can't get more than a couple of steps on the walking frame. He is doped to the gills on opiates (oxycodone and fentanyl patches). Spending Christmas day with him was ... terrible... to see him in so much pain.

He has another angeoplasty procedure coming up mid-January. One of the nurses that comes around recently said to my mother, quietly, that she's pretty sure they'll keep him in hospital after this procedure, since he doesn't seem to be getting any better with regards to the infection.

OK, here's my question:
Given all of the above, I am wondering whether it's worth seeking legal action against the hospital for the MRSA infection. I've done a bit of research online. There are lawyers who will assess your case at no charge and, if they think there is a case, pursue it on a "no win, no fee" basis. My father is against the idea. Well, he's apathetic to it. But fortunately my mother has taken extremely detailed notes of everything that's happened since he first went into hospital.

What I've read says he may be compensated for lost income (which is nothing since he was already retired), but also medication costs, doctor/specialist costs, my mothers time (since she is now his full-time carer), and maybe loss of "quality of life" caused by the infection (which I assume constant crippling pain and a heavy opiate dependence would probably fall into). But I'm concerned that his pre-existing diabetes and cardio conditions might be a problem.

A few articles/posts I found on the web said that people have been unsuccessful with suing for MSRA infection, but they were all in the USA. We are in Australia.

Has anyone pursued legal recourse for this kind of unfortunate situation in Australia? Was it successful?
posted by Diag to Health & Fitness (22 answers total) 2 users marked this as a favorite
I am so sorry.

I contracted MRSA in the hospital too (hello three months of IV antibiotics) but my wound wasn't the hospital's fault. I don't know the law on this issue, but I bet one horrible thing you'd have to deal with is trying to prove the source of the transmission.

But maybe -- can you prove that the wounds were the fault of the hospital? Were these pressure ulcers, or is this something that arises out of diabetes?
posted by angrycat at 5:19 PM on December 29, 2012

Best answer: There are lawyers who will assess your case at no charge

So talk to them.

Australia is not the US but still shares a large degree of common law overlap. The claim would be for negligence. In other words, you can't just say, "I went into your hospital and got MRSA so therefore I win and you owe me." You would need to show that the hospital was negligent in failing to protect your father from MRSA or negligently diagnosed or treated it (through delay, for example). Again, that is under generic Anglo-American common law so may not be exactly correct for your situation. You need to talk to a lawyer in your jurisdiction, who will apparently give you a free consultation. Talk to them.

By the way, I've been practicing law for a number of years and it is the rare case where the wife or other members of the family pushes a reluctant plaintiff into filing suit. I have never seen it turn out well (sometimes, I am the one who makes it not turn out well for the opposing plaintiff), and this is in the US, which does not have a "loser pays" rule like Australia does. "No win, no pay" means you don't pay your lawyer. It doesn't mean that you don't pay the other guy's fees. If you consult with a lawyer, you must ask about your father's potential liability to pay the hospital's fees and costs should he not prevail.

posted by Tanizaki at 5:21 PM on December 29, 2012 [9 favorites]

Response by poster: I believe they were pressure ulcers.
posted by Diag at 5:22 PM on December 29, 2012

MRSA has been getting harder to manage in the hospital environment for some time now. The strains turning up are sometimes resistant to some of the strongest treatments. Careful cleaning of a facility is required to reduce the chance of infection, but it does not appear likely that most health care facilities are fully sanitizing every room after every patient encounter. Further, people take antibiotics like candy (overused/overprescribed), and treat them like aspirin (stop taking them when they feel better, which is TOO SOON!). This creates ever-tougher strains.

I don't know anything about Australian law. You might be successful at seeking legal action if you can show that the hospital failed to take commonly accepted steps to prevent the spread of MRSA, but you would probably need some proof. It is rare to find a hospital that covers all of the bases 100% of the time, but on the other hand, they are not necessarily going to have records that show where their failures were. Further, it might be difficult to demonstrate that the hospital was the source of the infection, even though it is likely.

Best wishes to you and your father in any case, it is a bad situation to have to deal with.
posted by jgreco at 5:28 PM on December 29, 2012

Best answer: Hi there, I'm an Australian, so hopefully this feedback will be a bit more relevant than the US responses and experiences you may otherwise see. Please be aware that litigation - especially medical litigation - is a completely different kettle of fish here, compared to America. Nothing on an American website is worth reading about this.

I think there are two elements here, to the question, "Should I sue?" 1. Is a lawsuit likely to be successful? 2. What will a lawsuit get me?

To answer question 1: Where is the malpractice here? What evidence do you have that that hospital, or an employee thereof, did not do something that they were supposed to do, and it gave your Dad MRSA?

Hospitals - in Australia as elsewhere - are now Rife with MRSA. It is a well-known risk of hospitalisation, especially with those in intensive care, and elderly. For all that, it's important to remember to about 1/4 of cases here are acquired outside hospitals, and also that not everyone who contracts MRSA presents any symptoms to speak of. Additionally, those "no-fee" lawyers are anything but; they will eat you alive upon settlement and you will be lucky to see a dime.

So what I'm trying to say is that MRSA is very common in hospitals, your father is in a high-risk category for it, and there's not much that can be done about it. You would need to establish that he contracted MRSA from the hosptial as a result of neglience, and this will be extraordinarily hard to prove, whether you have notes or not. You cannot sue someone if you catch a cold whilst in hospital. Honestly, you can no more sue the hospital than shoe-maker that made the shoes he slipped in.

On to question 2. What would you like to get from this lawsuit? Your dad doesn't want it. The money (assuming several unlikely things: you find a lawyer to take this case; you actually win; you actually get a decent wad of cash; this all happens in time for your dad to use the money) won't make his pain go away. It won't make his feet better. It might be nice, in the way that money is always nice, but it won't really go a long way to address the problems your father is facing - many of which are tied if not wholly based on his other long-term, chronic, illnesses: his heart, his leg injury, his diabetes, the simple fact that he is old and frail.

I'm truly sorry for the heartache and anguish this is causing you. When you see a loved one suffering in pain, it is natural to want to defend them, protect them. And that necessitates finding something to defend them from. I'm sorry to say in this case the villains are simply bad luck, bad health, and the inevitable results of aging on the human body.

I don't want to scare you unnecessarily, but your father is very sick and he may not make it out of the hospital after his next visit, at all. I hope you are preparing for that, logistically in terms of looking after your mother etc, but also emotionally. It would be such a loss - for you and your father - if you spent the last few weeks/months/years of his life tilting at windmills and pursuing a vendetta that is unlikely to get you anything, let alone the healthy, happy parent - which sounds like what you really want. Honestly, your energy would be better spent enjoying as much time as you can with him, and researching, working with some chronic pain therapists, or support groups to help him. Best of luck, my heart goes out to you.
posted by smoke at 5:28 PM on December 29, 2012 [44 favorites]

The thing is, pressure sores are very, very common in hospitals, and while there are certainly things hospitals can do to prevent them, there are sometimes reasons that this doesn't work. Diabetes makes people very susceptible to poor circulation in the feet and it is extremely common for foot ulcers to be a reason for admission to hospital. In addition, if someone is immobilised due to, for example, a hip or femur fracture then turning them can be very painful or even contraindicated at the early stages. People who are able to understand and remember are also often given instructions about things they're supposed to be doing and those things sometimes get forgotten or not done. It would be difficult to prove who caused what in those kinds of cases.

Mostly overall I get the sense that you are angry and need someone to blame, and those are understandable feelings. Maybe they are not the most helpful feelings for your father though. Is there anything you can re-channel your emotion into that would benefit him more? It doesn't sound like he wants to sue the hospital.
posted by kadia_a at 5:35 PM on December 29, 2012 [1 favorite]

So...I am asking here out of general, should we now accept that MRSA (and pressure sores) are just a probable outcome of a hospital stay and that therefore the hospital is never at fault for them?

I think, OP, that it may be good advice not to pursue a legal case in terms of your mental health/the benefit it can do you personally. You already have so much on your plate. Your father is not likely to benefit in time to help him in his current situation. And I am so sorry for your family going through this.

But I also am flabbergasted at what seem to be assertions that MRSA and pressure sores are just something a patient should not be surprised to contract or even die from, and that we are supposed to shrug about it, now. I was under the impression that both were preventable with precautions, regardless of patient frailty. Am I wrong?
posted by emjaybee at 5:52 PM on December 29, 2012 [3 favorites]

The trouble with MRSA is that it's freakishly hard to stop (the "r" stands for "resistant.") As in, we had HR meetings about what MRSA looks like and what we'd do to respond to employees who contracted it. Being in a hospital is bad enough - but this patient was immobilized and diabetic and had serious surgery.

Even if your treatment team religiously sterilizes between every single patient, one visitor (who had contact with, say, a door handle touched by a carrier) could still manage to infect you. There's even a ten-day incubation period in which MRSA is actively in the patient but the patient isn't showing symptoms - so someone can very easily be transmitting it without knowing it.

(I tend to think suing is a bad strategy here, in the sense that it won't be "satisfying." But I don't know enough about Australian law to predict whether or not the case will likely come down on the OP's side.)
posted by SMPA at 6:01 PM on December 29, 2012 [1 favorite]

But I also am flabbergasted at what seem to be assertions that MRSA and pressure sores are just something a patient should not be surprised to contract or even die from, and that we are supposed to shrug about it, now. I was under the impression that both were preventable with precautions, regardless of patient frailty. Am I wrong?

In the context of a lawsuit, respectfully, yes you are effectively wrong. Lawsuits are not based on the severity, unpleasantness, or reputation of something; if the OP's father had contracted a cold, or strep throat or the like, would you still be flabbergasted? Because MRSA is just had hard, if not harder to eradicate, and nearly as contagious.

Unfortunately, there is now a subset of patients at high risk of contracting MRSA in hospitals - and all patients are at risk. In this context, a high risk patient contracting it would not be especially surprising - though I'm not sure there is any evidence of anyone shrugging shoulders. Not suing is not shrugging shoulders. This is a terrible situation, that MRSA is pervasive like this, but that does not mean it is someone's fault.

Additionally, pressure sores in older diabetics are super dooper common. We don't know the the OP's particular details, but I can tell you that there are hundred of neglience-free cases of both in Australia occurring every day.
posted by smoke at 6:17 PM on December 29, 2012 [6 favorites]

So...I am asking here out of general, should we now accept that MRSA (and pressure sores) are just a probable outcome of a hospital stay and that therefore the hospital is never at fault for them?

No, but a hospital is not necessarily at fault for them whenever they occur. If the hospital was negligent in terms of maintaining standards of sterility, or if the hospital was negligent in terms of providing bedbound patients with appropriate anti-pressure equipment and an appropriate schedule of assistance with moving feet, legs, back, whatever, then they are at fault.

But these issues can also develop in an environment where care is maintained to the absolute gold standard. So the real question is, was the appropriate standard of care provided?
posted by Sidhedevil at 6:26 PM on December 29, 2012 [2 favorites]

Best answer: You actually ask two questions here. The first is:

Is it worth investigating legal action against the hospital(s)?

To that the answer is "Of course!" You aren't in any position to tell whether you've got a viable claim here. The only person who can do that, for the reasons discussed by smoke above, is a medical malpractice attorney licensed to practice in your Australian jurisdiction.

The second question is:

I am wondering whether it's worth seeking legal action against the hospital for the MRSA infection.

To that, the answer is "We can't say for sure, but quite possibly not." Again, the only person that's going to be able to give you definitive advice is going to be that medical malpractice attorney. But a great rule of thumb in evaluating medical malpractice cases is to ask yourself whether this is something that could have happened in the absence of negligence. If the answer is "Yes," then regardless of other facts, you're looking at what's likely to be a very difficult case to win.

The assumption in tort cases is that all parties acted with reasonable care.* It is your burden, as the plaintiff, to prove that the defendant's negligence was the cause of your injuries. If the injuries resulted from something which can happen without anyone being negligent, your burden of proof just got a whole lot heavier.

Add to that the fact that you may well be responsible for paying for the hospital's attorney fees if you lose, and you need to be very, very sure that you're going to win before you file anything.

So by all means, get your case evaluated by an attorney. But don't get your hopes up. From where I'm sitting, it seems probable that you're going to learn that there's not much to be done here. Good outcomes are not guaranteed, and a bad outcome is not automatically grounds for a lawsuit.

*In malpractice cases, the assumption is specifically that the professionals involved adhered to the standard of care for their respective professions.
posted by valkyryn at 6:27 PM on December 29, 2012 [3 favorites]

I don't have much to add to the excellent advice you've been given here, but a few considerations:
- In the United States, hospital staff document any wounds that the patient is admitted with VERY carefully, specifically because of the fact that they want to have proof that the wounds were a pre-existing problem. As noted, a diabetic with peripheral vascular disease who can't move his leg due to pain is like a complete set-up for foot wounds/ulcers. It would take great luck not to get a wound in such a situation, but again, I wonder if he did have a wound there even prior to the hospitalization, only it wasn't as bad. It's easy for diabetics to have foot wounds that they don't even notice because the sensation in their feet is decreased.
- We also often screen patients for MRSA. A person can be colonized with MRSA without having an acute MRSA infection that is symptomatic. So we swab people's noses for MRSA to help tell us what sort of contact precautions we need to use with that person. Your dad could have been carrying/colonized by MRSA prior to the hospitalization, and if they swabbed him for it they might have proof of that, which would make your case even tougher to prosecute than it already sounds like it would be.
posted by treehorn+bunny at 7:08 PM on December 29, 2012 [4 favorites]

By the way, I also wanted to note: your father's relationship with opiate medications is a physiologic dependence on them, which is different than the common definition of an addiction (a behavioral compulsion to use a substance despite negative consequences, etc). If he suddenly stopped using them, he would have withdrawal symptoms, but to say he's addicted is a sort of pejorative way of stating that he currently needs these medications to treat his severe pain.
posted by treehorn+bunny at 7:16 PM on December 29, 2012 [10 favorites]

Best answer: The fact that your father has lived to be 71 with Type 1 diabetes is a miracle in itself. The fact that he's is very poor physical health is to be expected. His entire body has been damaged by so many years of diabetes; certainly his circulatory system is barely functional at all, and that's what caused his pressure sores. His immune system is exhausted, making him much more susceptible to infection from any source than the average hospital inpatient, even though the average hospital inpatient is more susceptible than a person on the street in the first place and in the second place most of us are exposed to MRSA bacteria frequently but our immune systems fight it off effectively.

Type 1 diabetes damages all the organ systems over so many years, and I'm so sorry to say that his condition is not likely to improve to any great extent. I doubt that you'd get anywhere trying to squeeze money out of the hospital for his MRSA infection because the hospital will have good lawyers who can argue that his overall infirmity is what the real problem is. Maybe it's time to just be with him and love him and use what time you have left in a positive way. As for the opiate "addiction," please let that idea go; he's receiving medication that is doing exactly what it's designed to do - relieve his suffering. I hope you can find a way to relieve your own suffering now.
posted by aryma at 8:01 PM on December 29, 2012 [8 favorites]

I am Australian and just finished law school. As I understand it, everything smoke has said is spot-on.

I'm really sorry this happened to you and your family, OP.
posted by Salamander at 8:02 PM on December 29, 2012 [1 favorite]

Response by poster: Thanks everyone. That's all very sound advice. I am not really angry or looking for financial vengeance. But a few of my friends have been telling me "Sue! Sue! Sue!", but I am am more of the mind that it's not really anyone's fault, along the lines of what aryma said above.

I'll consider everything you've all said.
posted by Diag at 8:31 PM on December 29, 2012 [1 favorite]

So...I am asking here out of general, should we now accept that MRSA (and pressure sores) are just a probable outcome of a hospital stay and that therefore the hospital is never at fault for them?

But I also am flabbergasted at what seem to be assertions that MRSA and pressure sores are just something a patient should not be surprised to contract or even die from, and that we are supposed to shrug about it, now. I was under the impression that both were preventable with precautions, regardless of patient frailty. Am I wrong?

The problem with your thinking is that not every bad thing or even tragic thing means that someone else is legally liable and you have a legal remedy. When a person sets foot inside a hospital, the hospital is not responsible for every single bad thing that might happen.

So, the hospital *might* be liable, if it was negligent. You have to prove negligence. How do you intend to do that? For example, MRSA has an incubation period of 1 to 10 days. That means you could have been infected on Monday, gone to the ER on Thursday for a stubbed, and started exhibiting symptoms on Saturday. So, the first question is, how do you (or the OP) know that the MRSA was contracted in the hospital?

Even if it can be proved that the MRSA was contracted in the hospital, you would then have to prove that the hospital's negligence was the cause. Hospitals do not have a duty to be sterile, but a duty to take reasonable care towards its patients. Everyone can't be walking around in a hazmat suit. They can't guarantee that no one will ever acquire an infectious disease in a building full of infected people. Hospitals take efforts to prevent transmission of MRSA and other infectious diseases, but there is a difference between "preventable" and "guaranteed to never happen, ever"
posted by Tanizaki at 8:58 PM on December 29, 2012 [5 favorites]

I'm guessing your friends haven't experienced a medical lawsuit. Or likely any lawsuit. Or they're lawyers.

Even as a plaintiff, lawsuits are stressful, distracting, and emotionally draining. Be cautious if you go down that road.
posted by grudgebgon at 9:13 PM on December 29, 2012 [2 favorites]

Response by poster: You're right, grudgebgon. None of the people who are telling me to sue have any experience in this area at all. Thankfully you lot are a lot more realistic and down to earth about things. That's why I asked here. And I'm glad I did.
posted by Diag at 10:22 PM on December 29, 2012 [2 favorites]

Hi Diag,  don't let Australia's litigation-shy practices stop you from officially complaining to the hospital(s) and the federal and state health ministers about the state of your father's heels, because your father is not to blame. I feel like I'm reading blame the victim stuff here. Let the hospital's complaints department worry about your chances of successfully suing. They will worry. Get you father's file under the noses of the hospital lawyers, and let them look into things.

You're worried "that his pre-existing diabetes and cardio conditions might be a problem".

Too right they're problems, significant problems, that determine aspects of your father's personalised care for known risks and their best management; they're problems hospitals take into planned consideration. If hospitals can't manage a fracture-patient with diabetes and cardio-whatever, who can?

Take legal advice around FOI entitlements and the application process, (or research it yourself) with a view to sending letters of complaint. Compare the "hospital(s)" documentation on your father with your mother's notes. You won't need to be a super sleuth to piece together when the ulcers were first noted*, when swabs were taken, when US antibiotics were prescribed, when your mother was informed, what pressure area care (PAC) your father attracted, and when; was PAC mentioned in progress notes as attended routinely prior to discovering his "horrific" wounds?

... you'll form a decent opinion around what happened, the time-line, and when diligence kicked in, and (IMO - just on what you've written above) you will have valid grounds for a 'please explain' complaint. You will get replies ... and a little more diligent care for your father over future admissions.

If people don't complain about the consequences of perceived inadequate professional care, hospitals will rest on their laurels all the more. Hospitals are not there to do us kindly paternal favours in return for gratitude, they're there to provide professional care with considerable diligence, and well informed risk management.

*I'm thinking your father (with your mother's help, no doubt) has managed diabetes knowledgeably for 41 years which generally includes foot care and appropriate footwear, and has maintained the skin integrity around his heels. That's basic diabetes 101 stuff. I'm thinking your father did not have pressure sores to his heels on admission for treatment of his fracture -- that should be reflected in his admission notes; and as a diabetic his care plan would have included a program of pressure relief for more than just his heels (more especially if his on-file 'admission assessment' has noted dry cracked skin over any bony prominence). Heels? Diabetic? Whether cracked or not, there's a need for providing planned frequent PAC.

FOI: what was noted; what was planned; what was provided; what went wrong; when?
Get your information together.

If he were my father and my mother had gone to the trouble of taking notes (I'm presuming in dissatisfaction), something's wrong.

If there's a complaint to be made, I'd be complaining (as factually as possible), with copies to health ministers. The tactful responses you'll receive in reply will be well worth the effort for all concerned; and you may save others from a similar fate by influencing hospital practices a little. Think it over.

All hospitals have complaints policies and procedures. You're entitled to know those, too. They're probably spelled out on-line.
posted by de at 11:25 AM on December 30, 2012 [1 favorite]

If people don't complain about the consequences of perceived inadequate professional care, hospitals will rest on their laurels all the more.

Yeah, I'm no doctor but it seems to me there's a wide range between a) suing and b) doing nothing. A formal complaint to both the hospital and relevant government agencies seems more than warranted, if for nothing else than to help alert hospital and government authorities to the issue, and maybe save at least a few future patients from what your father has suffered. What if he's the latest in a line of patients this has happened to at this hospital, and the rate of MRSA infection at this particular hospital is noticeably higher than at others? The authorities should know these things, and filing a polite formal complaint seems like a necessary next step.
posted by mediareport at 2:16 PM on December 30, 2012 [1 favorite]

My knowledge is all UK-specific, but what I know from the UK is that there are infection control policies both at national and local levels to tackle MRSA: patients are swabbed and tested for it, the NHS tracks and publishes MRSA infection rates at different hospitals, and there are various interventions to try and stop transmission (put patients in isolation, healthcare workers wear protective clothing, try to decolonise the patient, etc). It might be worth finding out what, if anything, the specific hospital policies are, and checking that they actually stuck to them in your father's case.
posted by penguinliz at 5:27 PM on December 30, 2012 [2 favorites]

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