Types of Problems

Potentially, there are three types of problems that the infection control program must address: (1) infection of patients, (2) infection of staff members, and (3) infection of visitors or persons outside the facility. The problem of infection of patients is well-known and is a question of degree. There is a certain irreducible level of infection. If a liability arises in this situation, it will be based on the failure of the infection control procedures to prevent the exposure of the patient to a nosocomial infection or on an improper antibiotic protocol that results in a patient becoming infected with a multiple-antibiotic-resistant infectious agent. Since infection is a natural risk of surgical therapy, postsurgical infection will be a legal problem only if there is a specific source of infection resulting from a breach of the infection control protocol. A common example is the failure to isolate a septic patient with the result that a roommate become infected with the same organism. This problem exists for nonsurgical patients when the infected patient has a communicable disease that may attack without the need for an easy entry provided by a surgical wound.

The infection of staff members is a widespread but little recognized problem. This type of infection may result in direct harm to the employee and in secondary harm to patients through the spread of the infection. In one study it was found that a number of cases of postoperative hepatitis occurred because a member of the surgical team was a hepatitis carrier. This type of incident illustrates the potential infection problem that arises from staff members infecting susceptible patients. With the growing ability of medical technology to sustain severely ill persons, premature babies, and immunosupressed patients, there is a much larger patient population that is susceptible to even weak infectious agents. This is further complicated by the tendency of hospital-acquired infections to be resistant to all but the most toxic antibiotics. The liability of the hospital will be the same if the patient succumbs to the infection or to the toxic side effects of the antibiotic needed to treat the infection.

While the hospital's liability for infectious injuries to employees is usually limited to workers' compensation benefits, this can still cause a significant financial loss if a worker dies or is rendered unfit for a job through infection with an agent that produces a carrier state. A much larger financial exposure exists if a staff member indirectly infects a member of the employee's family. Since most states have held that family members who are injured through a workplace-related incident are not bound by the workers' compensation laws, the legal remedies of such family members are the same as those of third parties.

The hospital or group practice may also be liable to persons outside the hospital who are infected through a breach of the infection control protocol. These persons may be friends or families of employees, visitors, or independent contractors and their employees. Independent contractors pose a particular administrative problem because they are frequently unfamiliar with hospital procedures yet may work alongside hospital employees. Independent contractors pose a legal problem because they are not covered by the workers' compensation laws and may sue the hospital.

Agency nurses make up the largest population of independent contractors in most urban hospitals. These nurses have the same duties an responsibilities as the regular staff nurses, but they often work in a given facility only a few days a month. They do not participate in the continuing education programs or other staff meetings, yet it may be through such presentations that the facility makes the nurses aware of safety problems. If an agency nurse becomes infected through insufficient knowledge of hospital protocols, the hospital will have the burden of proving that proper training was provided. There are also independent contractors who may be much more isolated from patient care, yet still be subject to a risk of infection. These persons include outside laboratory personnel, food handlers, sanitation workers, and any persons who may be exposed to specimens drawn for analysis.