mrsaMRSA and hospital infections are on the increase as are the related legal claims.  The scientific, public policy and liability questions were addressed during a Dec. 11, 2008 teleconference where four panelists offered background, perspective and discourse.    This is Part 1 of 4 posts made up of excerpts from the recording.  James T. Capretz of Capretz & Associates is a litigator who handles consumer, business, securities, and complex mass tort litigation, including class actions. Here is some of what he had to say.  

MRSA and hospital infections are a “growing but preventable and avoidable American health problem, a problem which first came to national prominence in October 2007 with the CDC announcement that infectious disease deaths exceeded those of AIDS.  The attendant publicity and pro-active and aggressive work, patient protection advocates such as the Commission to Rid Infection Deaths have had impressive effects on state legislatures and even the U.S. Congress, leading to the passage of laws by several states requiring hospitals to report infectious diseases, to screen certain at-risk patients on entry to the hospital and in certain limited circumstances, providing for a transparency of public health information for patients.”

james-t-capretz“In light of the magnitude and severity of the problem with the annual death toll estimated to be in six figures, it became apparent that in addition to the prophylactic and public health measures needed to minimize the problem, there was a need to address a legal wrong as many of our citizens and their families have been harmed or injured as a result of this epidemic.”

“Based on laws rule in our society it is incumbent on the lawyers to see that people have access to the courts for their injuries and damages.  Help is on its way.  As we spread the news of the magnitude of the problem and discuss the legal resources available to our profession to right the wrong.”

Barriers to Legal Claims

“The doctors’ code of silence not to talk about things, much like the police code about their brethren, and not to create any problems.  I will comment that many times the doctors are not involved in these lawsuits, but the hospitals themselves are.  Other times the doctors and the hospitals are involved.”

“Arbitration clauses are very seldom seen in hospital situations but very common with doctor situations.  If you have to sue or choose to sue a doctor as well as the hospital, you may have to deal with the arbitration clause and that would more than likely get the doctor out of the litigation.”

“The others are different types of reports that are available to you.  Some of these state mandated reports are not available to the public at this point in time, although Betsy and others are moving to make that more transparent and available to you.  There are going to be the problems with the patient not wanting to sue the doctor which happens often.  Many times the patients are amenable to suing the hospital but not the doctors.”

Causation, Damages

“Probably the toughest thing from a legal perspective would be proving causation.  There you will here Dr. Kreiswirth speak of some of the difficulties involved with your proving that this patient came down with this infection while in the hospital and under the hospital and not caused by a third party visitor or some other circumstances outside of the control of the person.”

“Liability . . .  proving the linkage to the hospital, perhaps a violation of state laws in effect, there are developing issues about this res ipsa instruction, jury instructions.  I was just talking to a gentleman earlier this week where he got a verdict but the judge refused to say that it was a res ipsa, issued and instruction to that effect.  He did manage to win the suit but he was very disappointed even though he presented overwhelming evidence of the fact that it should be a res ipsa type of situation.”

“Your damages are going to be limited by the medical malpractice laws and be sensitive to the fact that when it is a government owned hospital you have time limits on filing as well as you have limits on the amounts of damages that the state allows itself to be liable for.”

“ . . . You do have strange bedfellows in a sense that Medicare takes a position; the insurance companies are taking a position; patient groups take a position.  And the doctors – the doctor may be an ally in this situation if the doctor had nothing to do with the problem.”

Tort Reform

“. . . These are considered typically medical malpractice claims.  Obviously it is with the doctors, but with the hospitals, although there has been some hint, and there is a West Virginia case that we cite. . . the Riggs case for the Supreme Court of Appeals in West Virginia, suggests perhaps this is a corporate negligence case and not confined to the limits that are imposed on people in 35 of the 50 states now have medical malpractice legislation.”

“ . . . Medicare and private insurance are now denying claims.  We know these infections are preventable.  The good news is there is high publicity because of these athletes and others who have unfortunately suffered the problem.  Fortunately, many states are now passing corrective legislation.”

Finally, the “lawyer considerations to address a major healthcare issue.  You have the claimants in hand.  You do have viable and insured defendants typically.  You have direct liability to hospital and you have vicarious liability.  If a doctor causes something that leads to the infection and a problem, the hospital should be held liable under vicarious liability theory.  That is a point that is correct even if the doctor is working as an independent contractor which is so typical with the hospital.”

The teleconference was produced by HB Litigation Conferences LLC, formerly Mealey’s Conferences.  For more information go to the Archives section of, or write to