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Superbug in Charlotte

Two Charlotte-area residents have died in recent months as the result of a superbug known as carbapenem-resistant Enterobacteriaceae, or CRE. Carolinas HealthCare Systems has reported 18 cases, three of which were contracted during hospital stays. CRE is a virus which is highly resistant to antibiotics, and it has appeared in all but three states. CRE is not a new virus, but the frequency with which it has appeared has recently increased.

With the increased frequency of the virus, Carolinas HealthCare has begun taking additional measures to help prevent the spread of the virus, including screening patients most at-risk for the virus and then isolating identified patients, once diagnosed. In addition, when a patient with CRE leaves the hospital, the hospital has begun aggressively cleaning these rooms with a device that uses ultraviolet light to kill bacteria.

In California, last week, UCLA reported that more than 170 patients at a hospital there had been exposed to CRE during endoscopic procedures during a period ranging from October to January. The issue with the procedure was the use of a device with a complex design and tiny parts, which together make it very difficult to completely disinfect. So far, seven people there have been infected with CRE, two of whom have died.

It is anticipated that some of the people who were exposed at UCLA will sue both UCLA and the manufacturer of the device. If so, it would not be the first suit of this kind. In Pennsylvania, there is a class-action lawsuit involving over 200 patients against a clinic which is accused of improperly cleaning its endoscopes.

The CDC reports that approximately 5% of patients (or approximately 1.7 million people) contract an infection during a hospital stay each year. Approximately 100,000 of those people die. Sometimes called nosocomial infection cases, these cases seem to be successful only when a plaintiff can prove that a health care provider failed to properly diagnose and treat the infection, rather than merely negligently causing the infection.

A health care and sterilization expert stated that most attorneys are cautious about taking on hospitals because those types of cases can cost hundreds of thousands of dollars and it is difficult to prove what caused the infection. Many times the infection is not listed as the cause of death, or doctors will argue that a person came into the hospital with the infection. It is very difficult to prove that a patient did not have a virus when entering a hospital.

A look at cases from the North Carolina Court of Appeals which involve patients who have suffered injuries in connection with staph infections shows that these cases address the failure to properly treat the infection. In Braden v. Lowe (2012), the patient died from the conditions resulting from the spread of a MRSA infection after his antibiotics were stopped for more than a week. The court of appeals in that case only addressed a claim of failing to properly treat the infection, not a claim of negligently causing the infection. And in an earlier case, Johnson v. Podger (1979), the court of appeals discussed the application of the statute of limitations in connection with a misdiagnosis and failure to properly treat a staph infection after the patient’s surgery.

When litigating a negligently caused nosocomial infection, not only is the issue of where the virus was contracted a difficult hurdle, it is additionally difficult to prove whether the hospital failed to observe proper care and that this failure caused the infection. The hospital might argue that even with proper care, the infection could have occurred or that the patient’s own habits in recovery caused the infection.

G.S. 90-21.12 states that a health care provider is not liable for damages unless the standard of care provided

was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act.

Typically, the standard of care is established through expert testimony. The North Carolina Court of Appeals has noted that

The report of a study commission recommending adoption of N.C. Gen.Stat. § 90-21.12 makes clear that the Legislature intended to avoid a national standard of care for North Carolina health care providers:

The North Carolina Supreme Court has gone only as far as a "same or similar communities" standard of care, and the Commission recommends that this concept be enacted into the General Statutes to avoid further interpretation by the Supreme Court which might lead to regional or national standards for all health care providers.

Henry v. Southeastern OB-Gyn Associates (2001)

The court of appeals reasoned that because the legislature adopted the “same or similar communities” language, “it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health providers."  The same or similar communities standard "allows for consideration of the effect that variations in facilities, equipment, funding, etc., throughout the state might have on the standard of care." In addition, “the concept of an applicable standard of care encompasses more than mere physician skill and training; rather, it also involves the physical and financial environment of a particular medical community.”

Therefore, even if a lawsuit involving a negligently caused case of CRE was successful in California or Pennsylvania, the same behavior in a Carolinas HealthCare hospital would not necessarily be considered medical malpractice.

If you have been injured by an act of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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