Medical negligence is a complex area of law. Legal issues arise when one seeks to establish the legal element of “causation”: that a medical facility or practitioner’s allegedly unreasonable conduct caused someone to suffer loss, be it a physical or psychological injury or death. It is not enough to demonstrate that a medical practitioner’s unsatisfactory conduct may have contributed to someone’s loss. Rather, one must prove that it is more likely than not that a medical practitioner’s unsatisfactory conduct caused the loss.
Perhaps the most difficult medical negligence cases are those in which someone’s loss stems from the development of an infection, or “superbug”, while in hospital. The conventional view in cases of this nature is that an individual seeking to recover compensation will likely fail to establish the element of causation. Infections are generally seen as unavoidable or, more recently, as inherent risks of surgery or hospitalisation, particularly prolonged hospitalisation in the case of immuno-suppressed patients.
In recent times, however, contemporary medical science has seen something of a coming of age. As medical research has developed, pathologists can now better identify not only the type of bacteria with which one is infected but can increasingly also determine the likely source of contamination. While the conventional view holds relatively firm and the legal element of causation, in the context of infection, remains difficult to establish, it is not always impossible.
Given the risks of mortality and morbidity to which infections give rise, it is concerning to read of recent research conducted by Hand Hygiene Australia. It is not the case that only a handful of patients suffer from adverse medical outcomes as a result of unnecessary exposure to bacteria. Rather, it is thought that thousands of patients are being exposed to potentially fatal superbugs due to one the simplest of failures: a failure on the part of medical practitioners to wash their hands before or after patient contact.
The research conducted by Hand Hygiene Australia determined that of 7,576 instances in which a doctor should have washed their hands prior to performing a medical procedure, they did so on only 6,154 occasions, or 81% of the time. Professor Lindsay Grayson, an infectious diseases physician and the Director of Hand Hygiene Australia, estimates that proper hand washing could save more than 1500 Australian lives per year.
Unfortunately, infections and superbugs are becomingly increasingly resistant to antibiotics. A medical case was recently observed in the US in which a woman was diagnosed as being infected with a type of bacterium resistant to all available types of antibiotics. As bacteria become increasingly resistant to antibiotics, situations such as that which occurred in the US inevitably stand to be played out on a much greater scale. In the absence of significant improvement in hygiene practices, including most simply a consistent approach to hand washing by medical practitioners, injury and even death as a result of avoidable infections will continue to rise.
At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney partner, Sally Gleeson, has a dedicated practice in medical law. If you or someone you know has suffered as a result of medical negligence, including a situation in you, or someone you know, has suffered an adverse result after a potentially avoidable infection, we encourage you to call us on 13 43 63 to speak with one of our medical law experts today.