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Chapter 10 Medical Staff Organization and Malpractice Infections

▸ INFECTIONS The Centers for Disease Control and Prevention estimates that nearly 2 million

patients are stricken annually with hospital-acquired infections. There are estimates

that as many as 90,000 of these patients die annually as a result of these

infections.

The mere fact that a patient contracted an infection after an operation will not, in

and of itself, cause a surgeon to be liable for negligence. The reason for this,

according to the Nebraska Supreme Court in McCall v. St. Joseph Hospital, is as

follows:

Neither authority nor reason will sustain any proposition that negligence can

reasonably be inferred from the fact that an infection originated at the site of a

surgical wound. To permit a jury to infer negligence would be to expose every

doctor and dentist to the charge of negligence every time an infection originated

at the site of a wound. We note the complete absence of any expert testimony or

any offer of proof in this record to the effect that a staphylococcus infection

would automatically lead to an inference of negligence by the people in control

of the operation or the treatment of the patient.

Several cases that have lead to infection-related lawsuits are reviewed below.

Failure to Effectively Manage Infections Making a case for using clinical guidelines is demonstrated in McKowan v. Bentley,

in which the patient, Mrs. Bentley, sought advice about gastric bypass surgery from

Dr. McKowan in January 1993. On March 8, 1993, McKowan, assisted by Dr. Day,

performed gastric bypass surgery on Bentley to alleviate her morbid obesity. Bentley

was discharged from the hospital 2 days later with no indication of complications.

On March 14, Bentley returned to see McKowan with redness and swelling around

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her incision. McKowan removed the sutures and found that Bentley had a wound

infection. There was no indication that she had an intra-abdominal infection at that

time. On March 15, the drainage from her wound changed in character, and she was

admitted to the hospital. McKowan operated on Bentley and drained the abscesses.

Bentley had exploratory surgery on March 17 so that the doctors could see the

extent to which the surgery had successfully reduced her infection. McKowan

operated again and found no disruption of the wound site.

On March 18, another follow-up surgery was performed. Following that surgery,

Bentley was placed on a ventilator and began receiving total parenteral nutrition

intravenously.

On March 22, surgery was again performed on Bentley. This time, McKowan cut the

front part of the stomach and placed a gastrostomy tube in the lower stomach. On

March 26, purulent drainage was discovered around the gastrostomy tube. The

gastrostomy site was repaired. Bentley showed some improvement on March 27.

At that point, McKowan went on vacation and Dr. Day took over Bentley’s care. On

March 28, Day performed surgery to remove purulent material in the abdomen. On

May 30, Bentley’s sister transferred her to University of Alabama Hospital in

Birmingham, where she died.

Mr. Bentley filed a malpractice case. At trial, the plaintiff presented expert testimony

from Dr. Kirchner, who testified that Bentley died because McKowan and Day did

not properly manage her postoperative infection. Kirchner testified that the conduct

of both physicians in managing the massive intra-abdominal infection fell below the

legally imposed standard of care in Alabama. Testimony of the plaintiff’s expert was

emphatic, stating that the defendants disregarded obvious signs of grave

complications; omitted obvious, simple, effective measures for stopping the

infection that eventually killed the patient; and repeatedly applied inappropriate

measures virtually certain to exacerbate the infection. The jury awarded Mr. Bentley

$2 million in punitive damages. The defendants contended that the award was

excessive. The defendants’ motion for a new trial was denied.

Poor Infection Control Technique A jury verdict in the amount of $300,000 was awarded in Langley v. Michael for

damages arising from the amputation of the plaintiff’s thumb. Evidence that the

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orthopedic surgeon failed to deeply cleanse, irrigate, and debride the injured area of

the patient’s thumb constituted proof of a departure from that degree of skill and

learning ordinarily used by members of the medical profession and that this failure

directly contributed to the patient’s loss of the distal portion of his thumb.

Preventing the Spread of Infection A district court of appeals held in Gill v. Hartford Accident & Indemnity Co. that the

physician who performed surgery on a patient in the same room as the plaintiff

should have known that the patient’s infection was highly contagious. The failure of

the physician to undertake steps to prevent the spread of the infection to the

plaintiff and his failure to warn the plaintiff led the court to find that hospital

authorities and the plaintiff’s physician caused an unreasonable increase in the risk

of injury. As a result, the plaintiff suffered injuries causally related to the negligence

of the defendant.

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