Why infection cases are almost never cases under Virginia law

If I asked my microbiologist friend to name some of the bacteria that exist on a normal human – her mind would explode.

She couldn’t possibly name all the bacteria that are known to inhabit our largest organs – and yet, what we know (thanks to the smart people at the CDC, and NIH) is that your skin, and mine, is literally crawling with thousands of bacteria.

And that is ok – for the most part.

When it isn’t ok, is when those bacteria move inside and can cause infection that we as humans begin to worry about them.

We often get calls with the following fact scenario:

  • I had a surgery on my [insert back, knee, hip, aortic artery, whatever] and it went fine but while in the hospital, I got an infection and bad stuff happened
  • I had a surgery and it went find but months and months later I got really sick because now there is infection at my surgical site [insert stent, graft, rod, replacement]

And I hope I do a good job of explaining why we as mere lawyers, can almost NEVER prove that the patient got the infection from negligence, or bad care, or bad sterilization or unsanitary conditions. That we as humans are covered by bacteria and sometimes they just find their way inside – not withstanding appropriate infection control.

For example – could you trace how a grain of sand made it to shore? Maybe – but how could a mere human really do that? Not easily. Chasing bacteria is almost as hard.

So while it does make it hard to fight infection after a surgery, it doesn’t mean someone made a mistake. And even if they did, I can’t prove the mistake caused the infection and not just life – bacteria – human bodies.

The one kind of infection case we can handle, is a failure to diagnose infection despite significant signs and symptoms of infection. This kind of case occurs with some frequency. Patient may have some combination of the following:

  • Fever
  • Elevated Heart or elevated respirations
  • Elevated White Blood Cell Count
  • Pain
  • Skin, discolored or warm or painful to touch
  • Confusion
  • Naseau / Vomiting
  • Swelling

And just as we are all different creatures, infections can manifest themselves in different ways. My sweet mama just battled listeria (look it up – yuck!) and she had all of the above, while a client of mine had no fever for days despite all of the other symptoms.

In sum, we will likely not be able to prove negligence lead to your infection. BUT, in some circumstances, we can prove that appropriate treatment and diagnosis would have gotten to it quicker.

Questions? Call us.

We are always here to answer questions or help.

Yours,

Lauren Ellerman

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.