Law Article Discussion
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law-dis_1.docxBelow is a news article about a recent issue at one of New Hampshire's largest Hospitals. It was discovered by hospital administration that a patient was infected with a rare brain disease Creutzfeldt-Jakob Disease that can be transmitted surgical tools no matter how well the tools are sterilized. Upon discovery the Hospital contacted the Centers for Disease control, called the patients it believed were exposed and held a press conference.
Did the hospital do the right thing?
In taking the action they did has the hospital prevented any liability under state or federal law to the patients affected?
Please discuss and add some research from other sources or textbooks like examples I provide!
MANCHESTER, N.H. (AP) — Eight patients who may have been exposed to a fatal brain disease at a New Hampshire hospital have been contacted by the hospital's president, who said Thursday the patients aren't panicking.
Dr. Joseph Pepe called the Catholic Medical Center patients a day after health officials announced that they may have been exposed to Creutzfeldt-Jakob Disease — a brain disease characterized by rapidly progressive dementia which can cause death within months after symptoms first appearing. It has no treatment or cure.
Officials believe the extremely rare disease caused the August death of a patient who had brain surgery at the hospital in May, although the cause of death won't be certain until more tests are completed. If that patient had Creutzfeldt-Jakob Disease, there's a remote chance it was transmitted to other brain surgery patients because the abnormal proteins that cause the disease can survive standard sterilization practices.
In addition to the eight Catholic Medical Center patients, health officials in Massachusetts said five patients there may have also been exposed because a specialized instrument used on the New Hampshire patient had been rented and reused at Cape Cod Hospital.
The Massachusetts patients have also been notified but are believed to be at low risk because they had spinal procedures, not brain surgery, the state health department said.
About 200 cases of Creutzfeldt-Jakob disease are recorded annually in the United States, according to the National Institutes of Health, with the vast majority occurring spontaneously. In fewer than 1 percent of cases, the disease is transmitted by exposure to brain or nervous system tissue, and there have been only four reported cases of transmission via surgical instruments. None of those were in the United States, and the most recent case was in 1976, Pepe said.
Some hospitals might opt not to tell patients because of the low risk involved and the anxiety it could create for them, Pepe said, but it was important to keep them informed.
"We felt the risk of that anxiety did not outweigh the ethical principle of letting them know and also preventing them from possibly contaminating or exposing others should they have another brain operation," Pepe said.
The only definitive way to diagnose the disease is through a brain biopsy or autopsy. There are no screening tests, and tests that would point toward a diagnosis of the disease are only effective once symptoms such as memory loss and impaired coordination appear, Pepe said.
But he said the patients he spoke to are responding to their predicament calmly. One expressed more concern the hospital or its surgeons would be harmed by the publicity over the incident, Pepe said.
"They are all fine at this point, but I let them know that they can not only call my chief medical officer and the patient advocate ... but also myself, and we will stay with them as long as they need us," he said, adding that he apologized for causing them any anxiety.
The hospital will arrange counseling sessions if any of the patients request them, he said.
"Some may get angry later on, they may have anxiety, and then there are others who do not think anything of it," he said. "One person said, 'You know, I have really many other things more concerning than this.'"
Example 1
In terms of ethics, I think that the hospital did the right thing for the patients. At the same time, if I were one of those patients, I don’t think I would have wanted to know something so uncertain. It sounds like Pepe really heavily thought about the anxiety it would cause the patients, which is probably very hard to hear. In the end, he knew that if a patient did contract the disease, it had the potential to spread to other future patients. Pepe certainly did what was best for the greater good.
The hospital will likely be responsible for anything that may stem from this. It sounds like they are taking measure to help the patients by offering counseling. This wouldn’t be negligence since the hospital did everything it was instructed to do and followed all proper procedures. The only possible liability may be Product Liability due to “nature of harm.” Our textbook states that a “defective product can cause harm to a person, property, or economic interests.” (Twomey, Jennings, 2014). The example given indicates that a defective product that causes harm to the person receiving the product, and/or anyone impacted by the product. For example, a person that unknowingly buys a defective car and, because the car is defective, gets into a car accident and injures others, would be known as Product Liability due to Nature of Harm. (Twomey, Jennings, 2014).
Twomey, David, & Jennings, Marianne. (2014). Business Law: Principles for Today’s Commercial Environment. 472.
Example 2
I think the hospital was right to do it, even though according to the article, “In fewer than 1 percent of cases, the disease is transmitted by exposure to brain or nervous system tissue, and there have been only four reported cases of transmission via surgical instruments. None of those were in the United States, and the most recent case was in 1976, Pepe said.” (RAMER, 2013)
Today we are living in a litigious society where every action is evaluated, broken down, and liability sought. Usually this liability is years later when memories fade and assembling a defense to one’s actions is difficult because context has become blurred and situations not as clear as in that specific moment.
The hospital did what it could. It informed its exposed patients and it promised to monitor the patients. It is my belief that it would be criticized either way. It will be criticized because it might have unnecessarily alarmed people and “upset” them causing anxiety, and it would have been criticized if it had not been open and transparent about the possible exposure.
I was taught as a child by my parents to be honest, they didn’t tell me the terrible price honest people pay sometimes, in a society where not every parent has taught honesty to their child.
I lean towards that fact that the hospital did not shield itself from liability with this announcement. If there was a violation of accepted practices and normal protocols it will still be liable, even if it tried to do the right thing.
RAMER, H. (2013, September 5). NH hospital calls 8 over brain disease chances. Retrieved January 6, 2014, from http://news.yahoo.com/nh-hospital-calls-8-over-brain-disease-chances-185541938.html: http://news.yahoo.com/
Example 3
I believe this particular incident falls under the umbrella of strict liability. Strict liability applies whether not there was any negligence or intent to harm. All there is necessary is for strict liability to come into play is a wrong act, in this case even unintentional. I don't think anyone would argue that giving someone an incurable and likely fatal brain disease is a wrongful act. So, even though the hospital could not have prevented a patient from contracting Creutzfeldt-Jakob Disease, they are still responsible under strict liability. It's almost a text book example, in my opinion.
The question was asked if informing people after the fact that they were at risk would alter their liability if a patient were to contract the disease. I say no. The liability comes hand in hand with the performance of the tort. If the hospital also convinced the patients to sign a contract absolving the hospital of their liabity (either before or after their surgery) that would change the situation in regards to liability. Informing the patients was the ethical thing to do but it won't change a thing if someone were to take ill.
Jennings, D. P. (2012). Business Law: Principles for Today's Commercial Environment . Mason, Ohio: Cenage.
