Hospitals and aged care facilities are facing an increasing (and highly publicised) threat from so called ‘superbugs’ or antimicrobial resistant micro-organisms. It has long been known that overuse of antibiotics, both here and overseas, is contributing to the development of new and more dangerous strains of bacteria. While rates of resistance in Australia remain comparatively low, infectious diseases experts argue that decisive action must be taken to address these issues.

One of our recent matters exposed an interesting tension between this growing problem, and the issues faced by doctors who exercise a clinical judgment not to prescribe antibiotics in certain circumstances.

Case study

The patient underwent a routine, elective surgical procedure, but subsequently developed infection and secondary haemorrhage. The patient alleged that the hospital had been negligent in failing to administer peri-operative prophylactic antibiotics. The surgeon who performed the procedure was of the view that prophylactic antibiotics were not appropriate, because:

  • the patient had no underlying risk factors (for example diabetes) that might otherwise have indicated the use of prophylaxis;
  • the procedure carried a low risk of infection, as it was “clean” and did not involve a prosthesis, implant or mesh;
  • antibiotic prophylaxis did not provide a guarantee against infection, as it is not possible to make a definitive prediction of the form that potential infection will take; and
  • the widespread use of prophylactic antibiotics carried significant public health implications, which were not outweighed by the risk of infection in the circumstances of the case.

In spite of the surgeon’s views, and medical literature reinforcing the broader public health considerations, expert opinion was not supportive of the hospital.

Public health concerns

Writing in the Medical Journal of Australia1, the President of the Australasian Society for infectious diseases, Associate Professor David Looke (along with a number of other infectious disease experts), has recently highlighted the emerging issue of drug resistant gram-negative bacteria. These bacteria typically cause infections of the urinary and biliary tracts, peritonitis and hospitalacquired pneumonia, and, less commonly, liver abscesses and neonatal meningitis.

Multi-drug-resistant gram-negative strains are rife in India and other parts of the world, and are now being discovered in Australia. If such strains are able to take hold, previously simple infections will become harder and harder to treat, and surgical prophylaxis will be rendered increasingly ineffective.

The authors warn that an urgent and coordinated response is required in order to address this threat of a “new plague”. This will involve making difficult decisions around the regulation of antibiotics.

Similarly, the UK’s Chief Medical Officer, Professor Dame Sally Davies, drew headlines recently when she warned that antimicrobial resistance poses a “catastrophic threat” to society, and risks setting the practice of medicine back by up to 200 years. Strategies proposed in Australia and the UK include:

  1. Improving infection control procedures, thus reducing the need for antibiotics.
  2. Implementation and improvement of antimicrobial stewardship programmes with the aim of reducing the volume of antibiotics in use. Such programmes involve:
    1. tightening guidelines and regulation around the prescription of antibiotics;
    2. avoidance of ‘overtreating’ with broad-spectrum antibiotics where possible, with a preference for a more targeted approach; and
    3. collecting and analysing data on cases of antimicrobial resistant infections to monitor their spread and prevalence, and thereby assess the effectiveness of the strategies in place.
  3. Support and funding for the development of new antimicrobial agents, as well as improved techniques for the identification of pathogens, allowing faster targeting of antibiotic therapy and thereby supporting a reduction in the use of broad spectrum antibiotics.


Increasing morbidity and mortality rates associated with antimicrobial resistance will have liability consequences, particularly within inpatient and residential aged care settings.

Whilst the public health threat associated with overuse of antibiotics is clear, the strategies needed to mitigate this threat are difficult to apply to individual cases.

Take the example of an elderly patient showing early signs of infection in a residential aged care setting. The doctor will face a dilemma. The patient is likely to have co-morbidities, and is at risk of rapid decline in the event that infection takes hold. Accordingly, the most conservative management of that individual is arguably to prescribe an immediate course of broad spectrum antibiotics. On the other hand, the broader interests (of fellow residents and public health in general), may demand a delay in the prescribing of antibiotics, at least until the relevant pathogen can be identified and targeted.

From a legal perspective, clearer and more stringent prescribing guidelines are required to support clinicians in implementing the strategies that have been identified. It is otherwise inevitable that fear of litigation will come into play in the making of these already fraught decisions.