mrsa3MRSA and hospital infections are on the increase as are the related legal claims.  The scientific, public policy and legal liability questions were addressed during a Dec. 11, 2008 teleconference where four panelists offered background, perspective and discourse.    This is Part 4 of 4 posts made up of excerpts from the recording.  Jay A. Hamad is an attorney with Marshall Dennehey, Warner, Coleman & Goggin.  He practices in the firm’s healthcare practices group.  Hamed offered a defense perspective during the recorded session.   Here are some excerpts from his comments.

“ . . . MRSA has received a lot of news coverage, and I guess maybe deservedly so, a bit more sensationalized than the usual hospital infection.  . . . .what we see is development where having a MRSA infection stops being a medical issue and takes on a bit more sensationalized appearance partly due to the media coverage, and I think also due to the way MRSA, at least in the community acquired MRSA, presents its self.”

“. . . . what you will see is a pretty common issue that comes up for me at least.  I have a handful of MRSA cases as we speak where negligence is alleged against a physician.  Even after you get the proper medication they are going to have permanent injuries.”

“What occurs then is the question we are faced with everyday from the defense bar which is, now you have a patient who read all the newspapers, heard about this sensationalized superbug, flesh eating bacteria, and to them it all seems the same.   They are not going to differentiate between the specific infections obviously, so they go seek an attorney.  . . . .  while [co-presenter and attorney] Jim [Capretz]  may be on top of the medicine and I certainly agree with most of what he said, some of the other personal injury lawyers that I deal with at least, tend to just read the newspaper and assume that MRSA equals negligence.  Whether we agree or not on whether that is true for hospitals, I will certainly disagree with that statement as it applies to physicians specifically because from a physician’s perspective, you are really dealing with MRSA in a community acquired setting, especially as a primary care physician . . . .”

jay-hamad“Basically, the current state of affairs has physicians really in a catch-22 situation whereby they are made to choose between whether they are to prescribe empiric antibiotics that may contribute to the further resiliency of antibiotic-resistant drugs, or don’t prescribe antibiotics immediately until you get the results back from the laboratory but be faced with a lawsuit. Obviously that is not going to be something that is fair or is that is going to be tolerated by the defense bar.” 

“[Establishing causation] is a huge bar, not only in cases brought against hospitals where you have to prove the source of the contamination in the hospital, but I think for us as far as in the defense of physicians, in outpatient area is where the whole issue comes into play. You are going to need to show that first the infection progressed to such an extent as a result in a delay of diagnosis.  You would have to have proof that the two to three day period while the infection was not being adequately treated  . . .  but that delay caused a further deterioration of the patient’s condition that left and contributed to the permanent nature of their injury.”

“. . . . in light of the fact that the plaintiff cases in this area seem to be more directed towards the hospital prevention aspect of it . . . . it is more of a corporate negligence claim and that is really beyond the scope of most medical malpractice statutes and regulations in states.   . . . where I expect to see the future of litigation of MRSA to come down the pike would be in that area of corporate negligence, and the prevention and compliance with the state regulations.”

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