Comments on: Forensic Genomics and “Nosocomial” Tort Litigation http://blogs.law.stanford.edu/lawandbiosciences/2012/08/22/forensic-genomics-and-nosocomial-tort-litigation/ Wed, 15 May 2013 21:56:51 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Max Kennerly http://blogs.law.stanford.edu/lawandbiosciences/2012/08/22/forensic-genomics-and-nosocomial-tort-litigation/comment-page-1/#comment-23735 Max Kennerly Wed, 29 Aug 2012 03:26:32 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2548#comment-23735 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. 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.

]]> By: hgreely http://blogs.law.stanford.edu/lawandbiosciences/2012/08/22/forensic-genomics-and-nosocomial-tort-litigation/comment-page-1/#comment-23716 hgreely Mon, 27 Aug 2012 22:59:44 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2548#comment-23716 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? 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?

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