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Forensic Genomics and "Nosocomial" Tort Litigation

Gina Kolata, in today’s New York Times, reports on the advances of forensic genomics as used to determine the cause of last year’s outbreak of drug-resistant bacterial pneumonia at the Clinical Center of the National Institutes of Health in Bethesda, Maryland. There, a woman was admitted to the hospital, infected with a drug resistant strain of Klebsiella pneumoniae, the bacteria that causes a type of pneumonia. Despite stringent efforts by the hospital to quarantine the patient, seventeen other patients were infected with the drug-resistant strain, six of whom died. Many of those, however, had never come in contact with the patient. Laboring to determine the method of transmission, the hospital genetically sequenced the particular strain of infectious bacteria and was able to successfully map a route of infection. The hospital was eventually able to control the outbreak.

The novelty to this story lies less in epidemiology than it does genetics. The NIH outbreak and its control demonstrates that genetic sequencing of bacteria–an extravagance only ten years ago–has become more accessible and, importantly, better able to determine the root cause of such infections.

This may have implications for “nosocomial” tort litigation–lawsuits by patients against hospitals and medical care providers arising from a hospital-acquired infection. The past decade has seen no shortage of such cases: there have been high profile nosocomial lawsuits in New YorkUtah, and Ohio. As one can imagine, however, such lawsuits have been incredibly difficult to litigate because of the issue of proof. Did the infection originate at the hospital? Was there a traumatic event? Did the hospital, in fact, fail to observe sterile technique? Was the infection nonetheless inevitable despite a sufficient standard of care? Did the plaintiff’s habits in recovery contribute to the infection? In a 2000 article in the Columbia Journal of Law & Social Problems, one commentator remarked of the science of the time that “[i]t will often be impossible to identify the source of the pathogen that caused the disease. . . . [It is difficult to determine the] exact identity of the pathogen in any given infection, or the exact identity of two or more pathogens where it is alleged that cross-infection (from one patient to another) occurred. Records are unlikely to be available identifying every pathogen in a hospital.”

While this is certainly still the case, Gina Kolata’s article, and advances in genomic forensics, show that hospitals–and perhaps tort plaintiffs–now have more tools at their disposal.

2 Responses to “Forensic Genomics and "Nosocomial" Tort Litigation”

  1. hgreely says:

    Interesting. I think you are right to point out that this should have important effects in tort litigation (and, presumably, also in quality assurance methods). I wonder, though, if nosocomial infections are going to be the main area of impact. I don’t know how those cases came out, but if, let’s say, a patient with no diagnosis of or particular exposure to MRSA (methecillin resistrant staphyllococcus aureus (sp?)) is admitted to a hospital that is having a MRSA outbreak and the patient gets MRSA with bad consequences. I imagine this is the usual fact pattern. Have such plaintiffs really had much trouble winning (or at least getting good settlements)?

    I think one other area to consider for this is person to person infection lawsuits – “he gave me herpes” might get easier to prove, though you’d presumably still need a deep pocket defendant (I doubt that homeowners’ insurance would cover it). But possibly even bigger might be at least some “food poisoning” cases.

    It would be interesting to hear what real lawyers who bring and defend these kinds of cases think about the possible implications. Maybe a good future CLB panel?

  2. Max Kennerly says:

    Following up on hgreely’s comment, it’s harder than you might think to sue even over something as distinct as MRSA. Many courts require your medical expert opine to a reasonable degree of certainty not just that the hospital failed to adequately control infection, but that the failure lead to the infection. But when you ask your expert to do that, he or she says: “I am quite confident the MRSA came from the hospital, but without some sort of genetic test against the strains, I really can’t testify to that as to a reasonable degree of medical certainty.”

    In other infection cases, the nature of the bug isn’t nearly as obvious. We routinely reject surgical malpractice cases were we have no doubt the surgeon failure to keep a sterile environment and/or failed to properly close the wound, after which the patient developed an infection, because we know the defense lawyer will attack causation, saying our client messed with the operative site, our client got it from the shower, et cetera. The ability to actually compare bug DNA would go a long way, though it must be noted that we would likely have to be able to get a sample from the doctor’s office or hospital — but clients typically don’t come to us until several months after the incident.

    All in all, I think this will become part of the plaintiffs’ lawyer’s toolbox, but it will take some time until it’s inexpensive and widely available and, most importantly. courts start becoming accepting of this sort of testing. Of course, one big problem here is tampering: if you send notice to a doctor defendant that you’re going to sample their operating room to compare bacteria, I can guarantee you the next thing they’re going to purchase is a couple gallons of bleach.

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