Why infection cases can be hard to win – Virginia Medical Malpractice law

Why infection cases can be hard to win – Virginia Medical Malpractice law

Why infection cases can be hard to win – Virginia Medical Malpractice law 150 150 Lauren Ellerman

Not a week goes by that we don’t get asked to review records for a tragic death, wherein someone dies from an infection and the family believes the following: 

a. The infection was preventable;

b. Had the hospital / nursing home / home health aid been better about hand washing – the infection would not have spread;

c. The infection should have been diagnosed quicker;

d. Once diagnosed, it should have been treated differently – more aggressively; 

e. Since it was preventable, and treatment for infections usually works, the person should have survived. 

And we get calls for all kinds of infections – C-Diff, MRSA (often referred to in more rural areas as MERCER), pneumonia, E-coli, UTIs, and more. And in the many years my office has been doing medical malpractice work, we have ONLY ONCE alleged an infection was totally preventable. Once out of thousands of case.  The reason being is simple – in every medical malpractice case, you need experts to support your case and infectious disease experts are typically like the uber smart and geeky doctors who live in a world of uncertainty. They will say to you “Not every infection is preventable. Sometimes we do everything right (hand wash, skin prep etc.) and patients still get sick. I’ve seen this in my own life – I’ve seen 45 year old professional athletes get MRSA, healthy 38 year olds get C-Diff, etc. Sometimes, they are caused by negligence. Sometimes, they just happen and it is very hard to prove the source of an infection. For this reason, we almost never file a case alleging the infection should have been prevented or would have been with better hand washing or hygiene practice.***  

Rather, when we look at an infection case, we look to see if it was: diagnosed in a timely manner, and treated correctly. 

If the health care providers failed to diagnose and treat and infection, then maybe just maybe the super brains infectious disease physicians will say the following “More likely than not, if this infection had been diagnosed in a timely manner and the person been given appropriate antibiotics, fluids, treatments etc., he or she would have survived.” With these magic words, we may have a lawsuit under Virginia law. Without them, we don’t. 

*** Now, the one exception to our general practice was an infection outbreak in an assisted living facility – and when multiple patients had flesh eating bacteria we did allege a systemic failure to prevent the spread. That was a rare and tragic case. Minus an outbreak it is almost always a losing argument to allege a single infection was preventable. 

If you question whether an infection was preventable, or treatable, we would be honored to help investigate your case. Call us today – 540-985-0098.



About the author

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.

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