Traditionally, nosocomial infections have generally been viewed as an unavoidable risk of hospitalization. Where this risk materialized, the infections were typically benign and treatable. Even where the consequences of nosocomial infections were severe, legal claims were rarely pursued due to the perception that hospital-acquired infections were a common risk which most often materialized without negligence. And even where lawsuits were filed, they typically focused on the treatment of the infection rather than how and why the infection was acquired.

The landscape surrounding nosocomial infections has shifted over the last several years, creating the potential for a new type of exposure to liability for health care providers. The increasingly prevalent perception is that nosocomial infections are preventable events when good infection control practices are followed. The mere occurrence of hospital-acquired infections is increasingly perceived by the public to suggest a failure on the part of the hospital.

Several factors have contributed to the shift in the way nosocomial infections are perceived:

  • Nosocomial infections are increasingly resistant to treatment, and occur at higher frequencies because they are resistant, such as in the case of C. difficile, MRSA and VRE.
  • The increased incidence and severity of infection has generated media attention and motivated external scrutiny.
  • Emerging infections pose significant challenges from the moment they strike, such as in the case of SARS.
  • Canada’s aging population is more vulnerable to nosocomial infections.
  • In a culture of transparency, hospitals have increasingly sought to notify patients of hospital-acquired infections and even of potential exposure to infections during hospitalization.
  • Health care consumers are more informed and demand more from health care than ever before.

This shift in the landscape surrounding nosocomial infections has resulted in three areas of increased potential exposure to liability for hospitals:

1. Claims related to the acquisition (rather than the treatment) of infections during hospitalization have increased. Where a patient contracts a disease during hospitalization, infection control policies and practices are now more likely to be questioned.

2. Not only are patients more likely to sue on an individual basis if they acquire an infection in hospital, but the pooling of individual claims into a class action has become a veritable niche market for plaintiffs’ counsel. Where an infectious disease outbreak occurs within a hospital, it is now more likely than ever that a class action will be brought. Such claims typically focus on the hospital’s identification of the outbreak and implementation of infection control measures as common issues to the numerous claims.

3. A significant number of class actions have been brought on behalf of uninfected individuals who were notified during an outbreak that they may have been exposed to an infection at the hospital. These actions can involve hundreds or even thousands of claimants including non-patients who were exposed to patients during a period of potential infectiousness. These individuals do not acquire the infection, but claim they have suffered harm from being informed of the mere possibility. These types of claims emphasize the need to conduct thoughtful notifications to avoid ‘overnotifying’ individuals who are not affected by the risk but who would nonetheless be part of a class suing for the mental distress of the notification.

Claims related to the acquisition of nosocomial infections may increase as hospitals are mandated to disclose more information publicly. For instance, as of April 2009, Ontario hospitals will be required to report their rates of ventilator-associated pneumonia, central line infections, surgical site infections and hand hygiene compliance.

In order to defend against claims related to nosocomial infections, it is essential that hospitals work with their infection control departments and legal counsel to identify issues early and prospectively, and to manage their risks while meeting their obligations to patients.