By Lee S. Goldsmith
The author, an attorney and medical doctor, is a partner with Goldsmith Ctorides & Rodriguez
in Englewood Cliffs.
A sore throat, a urinary tract infection, a prescription for antibiotics and a cure.
That is often the mentality with which we approach the minor medical problems that face
each of us on an annual basis. A short and simple visit to the physician followed by an
examination and a prescription and the problem is solved. However, as we are aware this is
only a small and inconsequential portion of the story.
Medical practitioners have abused the use of antibiotics for many years. Patients will
make an office visit for minor conditions that need not have antibiotics and antibiotic
therapy has been prescribed. However, the patient will often request antibiotics in the
belief that it will lead to a faster cure and the practitioner will oblige. The end result
is that more bacteria are becoming resistant to the available antibiotics and therefore
more infections will become harder to treat and cure. While the profession as a whole is
responsible for the problem, the individual physician is not.
As a patient and consumer the general experience is to take a problem to the physician
and have the condition diagnosed. When dealing with the problem of infections there are
three issues that must be confronted not only by the medical profession but attorneys
considering medical negligence cases.
What Caused the Infection?
A patient has undergone a routine operative procedure and develops an infection. A
patient may have undergone an amniocentesis and ends up developing an infection in the
amniotic sac which results in death of the fetus and perhaps the mother. A patient may
have been in a motorcycle accident, has a closed-displaced fracture and ends up having an
infection at the fracture site.
The practitioner will determine that an infection is present and decide on a course of
treatment. The preliminary question for the attorney is the cause of the infection.
In most instances an infection will occur with no known cause; no cause which is
related to negligence or no cause that is discoverable. If we look at the possibilities in
the situations outlined above the difficulties become obvious. A patient being prepared
for surgery will have the skin cleansed to free it of bacteria. The instruments will have
been sterilized and prior to donning sterile gloves all members of the surgical team will
have scrubbed their hands carefully. If any of these steps were not taken no one would
probably be aware of the problem or if they had would have taken steps to correct the
situation. Bacteria may be in the air, the wound could become contaminated during a change
in the dressing or an instrument might not be sterile. Unless the operating room had
previously been used for a "dirty" or "infected" case and not cleaned
there is no way to prove that the airborne infection resulted from any error. All
instruments are sterilized prior to the procedure. It would be impossible to prove that a
particular instrument or any instrument had not been sterilized.
For example, the occurrence of an infection within the amniotic sac after the
performance of an amniocentesis is extremely rare. Yet the problem is known. The greatest
likelihood is that the needle was contaminated before being inserted into the abdomen. The
needle would have been taken from a sterile unopened package and the assumption would have
to be that of hundreds of needles this needle was contaminated. This proposition would be
difficult if not impossible to prove. However, this is not the only possibility and
therefore the ultimate cause of the problem is probably undiscoverable.
Another example presents a slightly different picture. In the facts of this case the
patient did scrape her leg in a motorcycle accident. That wound became infected and was
cultured. When the surgeon decided that the closed fracture needed an open reduction he
made the incision through the site of the infected abrasion. The result was that the
surgery carried the bacteria from the skin to the bone resulting in an osteomyelitis or
bone infection. The organism cultured from the osteomyelitis was the same organism that
had infected the skin abrasion. One would usually expect that the fracture site might be
infected by a blood-borne organism. This case, therefore, would be one of the rare
circumstances when the cause of the infection was known and therefore negligence was
capable of being proven against the practitioner for causing the infection.
Delay in the Diagnosis of the Infection
While the physician may not know or care about the source or the cause of the infection
there is a requirement that the presence of an infection be diagnosed promptly so that
treatment can be instituted. An infection may cause the development of local signs or
general signs. The nurse might record a finding of redness or excessive warmth around the
wound. This would be a localized sign.
There may also be changes that would be generalized. The laboratory section of a
hospital record will contain the results of the tests that were performed along with the
date and time of those tests. In addition the normal range will be listed along with a
flag to alert the health care personnel when the results are outside of the normal limits.
The tests to look for would be an elevated white blood cell count, an elevated
sedimentation rate and what is called a shift to the left. Among the white blood cells if
there is a bacterial infection present there will be a higher than normal percentage of
neutrophils and band cells. The patient may also have an elevated temperature. What should
concern the practitioner and attorney is the difference in the time when the reasonable
physician had the opportunity to and should have made the diagnosis that an infection was
present and when the diagnosis was ultimately made. The delay will allow the infection to
increase in size, spread throughout the patient and make it much more difficult to
When a patient remains in the hospital after surgery one would hope and expect that the
signs of infections would be picked up rather quickly and acted upon. The staff will have
the best opportunity to make a diagnosis under the controlled circumstances of the
hospital setting. However, much of current surgery is done on a same day basis or at most
the patient will be held in the hospital overnight. Under these circumstances the
physician must make sure that communication between the patient and staff is available.
The patient must be instructed as to the potential complications and what might be
expected if those complications arise. The patient would then have the responsibility of
calling the physician so that a diagnosis could be made and treatment instituted.
Delay in Providing Appropriate Treatment
Once the presence of an infection is determined or suspected the first step would be to
take a culture of the site to determine what organisms are causing the infection and
determine which antibiotics would be appropriate and effective. This is called a Culture
and Sensitivity test. As new strains of bacteria are developing the antibiotics that were
once effective may no longer be effective.
A culture is performed when the physician or technician takes a swab or a sample and
places it into a culture medium to stimulate growth. Once the organism has grown it can be
examined microscopically and a determination made as to the type of organism. After the
organism has grown it is then placed on discs embedded with antibiotics. If the organism
fails to grow on a particular disc it is then felt that the organism is sensitive to that
antibiotic and that antibiotic would be one to select for treatment. If the organism grew
on a particular disc it is then felt that the organism is resistant to that antibiotic and
that antibiotic should not be selected for treatment.
However the results of the test might not be available for a period of 24-48 hours.
During that time the physician would prescribe antibiotics that were felt to be effective
against a broad range of organisms. Once the results were available the antibiotics being
given might or might not have to be changed depending on the results of the culture.
However, once the results of the culture and sensitivity study is known it is incumbent
on the physician to review the antibiotics. If the antibiotics being given to the patient
are not effective and if the study results indicate that the organism is resistant to the
antibiotics being given then the antibiotics have to be changed to those to which the
organism is sensitive.
In addition to the correct antibiotic being given it must be given in the appropriate
dosage and the appropriate route. Intravenous antibiotics are more effective than oral
antibiotics. Some antibiotics should be given orally and others intravenously. Some
infections need high doses of intravenous antibiotics in order to gain appropriate results
and the patient may have to stay on the antibiotics for a long period of time.
The appropriate regimen must be selected to treat the particular infection that is
occurring and should be started as soon as practicable. In too many instances the
physician responds to the infection with an attitude that the therapy given has worked
before and should work again.
An excellent reference is the Physicians Desk Reference. This book contains the
package inserts prepared by the manufacturers and approved by the Food and Drug
Administration. It will provide information relating to the indications for use, the
contraindications to use as well as the dosage and routes of administration.
Medical negligence cases involving infections are
numerous but generally follow set patterns. A careful review of the
relevant laboratory data, medical records and relevant literature can
provide a guide in determining whether or not there is an appropriate