Imagine you are a medical malpractice attorney. Your client, in the hospital for surgery or childbirth or some other invasive procedure, developed an nasty infection, resulting in permanent injuries or death. You order their medical records and their billing records, and you notice that their insurer (it can be a private insurer or Medicare) refused to even pay for treatment of the infection as a “never event.”  You settle on two negligence theories to investigate: whether the hospital-acquired infection was preventable and whether the infection was properly treated.

(Let’s make this hypothetical easy and assume the infection is one of the more common pathways, like central line / bloodstream, pneumonia, or urinary tract infection, and one of the more easily recognizable nosocomial pathogens, like MRSA, Clostridium difficile, or Pseudomonas aeruginosa.)

Now what? Either because you’re a cautious attorney, or because you’re in a state with a certificate of merit requirement, the first thing you do before filing a lawsuit is retain a qualified expert physician, and maybe a nurse as well, to review the case. The nurse gets back to you first, and says the documentation suggests inadequate wound care prior to the diagnosis of the infection, and several undocumented hours when the patient’s vitals weren’t checked. (They refrain from giving you much more by way of an opinion, because that would involve a “medical diagnosis,” which is, by law, outside their expertise.

The physician gets back to you and says they’ve seen this same patient course before, and they’re “sure” it was preventable, and that the hospital failed to diagnose it and properly treat it for about 6 hours. “They never should have had the infection in the first place,” the doctor says, “but the delay in treatment probably didn’t change their overall course too much once the infection took root.” Then, the doctor adds, “I don’t doubt the infection was preventable, but I can’t tie that specific infection to the hospital’s negligence for certain.”

The words “for certain” worry you, because at trial you need to prove both that the hospital was negligent in their infection-prevention measures and that the negligencecaused the infection, and most states you know of require a plaintiff prove medical malpractice with expert testimony given “to a reasonable degree of medical certainty,” a dubious and ambiguous phrase, but one that’s the law. Do you have enough to win your case?

You do some legal research, and you come across an arresting sentence in a law review from a dozen years ago: “Despite the overwhelmingly large number of people who die from hospital-acquired infections each year, there are virtually no instances of successful litigation against doctors or hospitals.” Pamela Nolan,Unclean Hands: Holding Hospitals Responsible for Hospital-Acquired Infections, 34 Colum. J.L. & Soc. Probs. 133, 136 (2000).

A little more digging seems to show it’s not so bad — there’s the Kimberly F. v. Mary Hitchcock Memorial Hospital, 9 F.3d 1535 (1st Cir. 1993) case, where a woman in postpartum care could only have developed herpes between the delivery and her return checkup ten days later from the nurses’ failing to properly disinfect after caring for the patient next to her, who had herpes — but it sure seems like Kimberly F. is a rarity. A lot of these cases are dismissed before they ever see a jury, like this case in Kentucky.

Whenever you find someone winning a nosocomial infection case, it turns out to be a case involving the failure to properly diagnose and treat the infection, rather than causing the infection in the first place. In the end you find some unique factual situations — like this case, with a treating surgeon testifying quite clearly that MRSA had to originate from within the spine (and thus a contaminated instrument rather than from the skin) — and generally conclude, like you saw in another law review article, that “The key to increasing the likelihood of success in such cases is obtaining concrete evidence on the possible sources of infection coupled with an expert witness with sufficient skill to examine that evidence.” Robert Steinbuch, Dirty Business: Legal Prophylaxis for Nosocomial Infections, 97 Ky. L.J. 505, 512 (2009).

But you don’t have either the concrete evidence nor the ability to have them examine it.

Welcome to my work. Hospital-acquired infections are a serious and shockingly commonplace matter, causing somewhere around $30 billion in direct medical costs annually — ten times the entire cost of our malpractice liability system — and so every medical malpractice law firm has its fair share of potential clients calling us up to ask what can be done after a severe MRSA or C. difficile or the like infection. The analysis is usually like I wrote above: we look both for negligence in causing the infection and indiagnosing and treating it, but the former often stalls out at the lack of ironclad evidence that courts these days demand of medical malpractice plaintiffs.

As Jacob Sherkow at Stanford’s Center for the Law and Biosciences points out, though, that might be changing due to the recent developments in gene sequencing of bacteria, giving researchers, health professionals and, yes, lawyers, cost-efficient access to tests that can definitively connect one infection to another:

As one can imagine, however, such lawsuits have been incredibly difficult to litigate because of the issue of proof. Did the infection originate at the hospital? Was there a traumatic event? Did the hospital, in fact, fail to observe sterile technique? Was the infection nonetheless inevitable despite a sufficient standard of care? Did the plaintiff’s habits in recovery contribute to the infection?

As I wrote in the comments there, even in cases involving commonplace nosocomial infections like MRSA, the ability to actually compare DNA would go a long way, though it must be noted that we would likely have to be able to get a sample from the doctor’s office or hospital — but clients typically don’t come to us until several months after the incident. Then, of course, there’s the big problem of tampering: if you send notice to a doctor defendant that you’re going to sample their operating room to compare bacteria, I can guarantee you the next thing they’re going to purchase is a couple gallons of bleach.

Thus, the tests probably have their best use in outbreaks in hospitals. But there are some practical problems: in general, infection information is hidden by hospitals from the public, and, in many cases, it’s not even available in discovery. Powell v. Community Health Systems, Inc., 312 SW 3d 496, 507 (Tenn. 2010)(“A majority of jurisdictions that have addressed this issue have held that an infection control committee is a peer review committee when it is engaging in activities aimed at improving the quality of health care.”); cf. Babcock v. Bridgeport Hospital, 251 Conn. 790, 850 (Conn. 1999).

But here’s the kicker: the plaintiff isn’t going to know if they can even get that information about an epidemic, or if the expert report is good enough, until after they’ve filed the suit and have litigated it to summary judgment, scaring off many lawyers from filing these cases in the first place unless the outbreak has already been disclosed publicly. Thus, while I think these tests will help plaintiffs injured by hospital-acquired infections prove their cases, I think the benefits will take some time to filter through the system.