Staphylococcus Pseudomonas aeruginosa Damage Compensation

Unfortunately, negligence of the hospital environment is becoming an increasingly frequent reality, also for Stafilococco.

At least this is what it is supposed to be through the numerous complaints made to health professionals and companies due to the death or permanent injuries suffered by hospitalized patients.

These situations do not always lead to trials or agreements with insurance companies since it is not easy to prove the responsibility of the Hospital.

On the contrary, hospital’s liability has been easy to prove in the case of a 77-year-old elderly gentleman who was admitted to a Roman Private Nursing Home. He has several important pathologies of the heart system and must undergo surgery to replace the aortic valve and ascending aorta.

Despite the risks related to the delicacy of the operation, the result is positive and the patient is transferred, to dispose of the phases immediately after the surgery, to the Intensive Care Unit first and then to the U.O.C. of Cardiac Surgery.

Once discharged from the Nursing Home, the patient is directed to a special Institute for the management of the subacute phase and cardiological rehabilitation.

The infected surgical wound

On the day of hospitalization at the Institute, the nurses who took care of the patient noticed a secretion having come out of the wound that had been practiced at the sternum during the operation.

A serum examination is done and it turns out that the wound is infected with the bacterium Staphylococcus epidermis.

The management of the Rehabilitation Institute arranges the urgent transfer of the elderly to the nursing home where he had been operated on and after a couple of weeks of hospitalization, another swab shows a very high concentration of the bacterium Pseudomonas aeruginosa, present in the respiratory and urinary system.

Within a few weeks, the elderly man's already weak organs are eventually succumbing to infection and his death is confirmed.

At first glance it seems that the fatal infection for the elderly man was contracted in the hospital where he went under surgery. Therefore, the case could be counted among the multiple hypotheses of malpractice that often arise among hospital infections. Before addressing compensation claims to the Hospital, it should be ascertained the actual responsibility of the facility and the health personnel who managed the sick person and above all that not all the necessary preventive measures have been observed.

The so-called Gelli Law has introduced the possibility of solving cases of malpractice out of the Court rooms, through mediation, a legal tool that allows the parties to compare each other's positions for the purpose an agreement.

In difficult cases, investment is preferred over preventive assessment techniques.

Lawyer preliminary technical assessment

The lawyer of the family members is determined to support the thesis of hospital negligence and appeals ex art. 696 bis c.p.c. before the Court of First Instance, requesting in the form of prior protection the appointment of an impartial expert assessing the extent of liability and damage, in contradiction with the technicians appointed by the parties.

Instead of continuing with the judgment on the substance of the case, the parties supported the conciliatory proposal suggested by the Court of First Instance.

In this case, after the three experts indicated respectively by the victim's family members, by the Hospital and by the Court of First Instance, have pronounced, the various allegations regarding the liability of the hospital have been submitted to a judgment on the merits.

The hospital expert denies the recurrence of a liability, assuming that the bacterium was present in the patient at the time of hospitalization.

He states that there is no evidence that the bacterium was contracted in the hospital environment and that allegations are poor of temporal reference and of a description of what specific negligent manoeuvre would have been made.

The expert appointed by the family insists on the thesis of negligence related to a series of acts and manoeuvres instead of to a single intervention. He recognizes a a total responsibility both in the choice the pharmacology associated with the infection and in the lack of accuracy found in the manoeuvres of dressing and monitoring the wound.

The Judge makes a transactive proposal but recognizes the responsibility of doctors

The Judge considered the sum of € 750,000.00 as compensation to the family members of the 77-year-old victim, who died due to an infection related to health care in the field of cardiac surgery, to be fair.

The Judge accepted the thesis of the Court expert who confirmed all the medical liability profiles charged to the health facility, recognizing the causal link between clinical treatment and death.

The main welfare deficiencies highlighted by the Judge in the order ex art. 185 bis cpc concern the underestimation of the infectious risk, in light of the high co-morbidity of the patient, and the intervention to which he was to undergo; the unsuitability of antibiotic prophylaxis, which is only aimed at a single type of bacteria, the development of an infection clearly related to care; the suspension of antibiotic therapy even in the state of infection; early discharge of the patient; the lack of caring and monitoring of the surgical wound; the failure to request infectious advice also for the purpose of diagnosing the type of bacteria and finding the most appropriate antibiotic therapy; the lateness of the diagnosis of infectious bronchopneumomonitis.

The Judge also noted that the Hospital has failed to demonstrate that it has put into practice all those guidelines that the Hospital is equipped with, since no daily register of disinfestation and cleaning of the operating environment has been filed, nor any of the samples that must be carried out to check the effectiveness of the prevention measures taken.

Failure to implement guidelines against hospital infections

In addition, the Hospital Infections Committee within the structure had a purely formal role and in any case operated in a manifestly unsuitable way to perform the functions of prevention, organization, training of personnel, verification of the effective application of the programs and control of their effectiveness.

Therefore, according to the tables drawn up by the Court of Rome in 2018 for the loss of the parental relationship, the Judge proposed to the Hospital, in favour of the relatives, the payment of € 290,000.00 to his wife, € 250,000.00 to his cohabiting daughter and € 210,000.00 to the non-cohabiting child, in addition to the costs of quarrel and C.T.U.

The Court of First Instance thus established the responsibility of the health facility for the damage suffered by the patient under civil law principles, establishing that the structure is liable on its own ex art. 1218 c.c. where such damage depends on the inadequacy of the structure, or by the fact of others ex art. 1228 c.c. where damages depends on the fault of the health professionals that works for the hospital.

In fact, the structure is also liable before the patient for the doctor’s malpractice.

Due to the internal relationship between the health structure and the doctor, the liability for damages caused by the sole fault of the latter, as a principle consolidated in case law must be divided equally according to the risk the hospital accepts with the use of third parties for the performance of its contractual obligation.

Medical Liability Lawyer

The joint responsibility of the health facility, in one with the doctor and towards the patient, has only one exception, which is so rarely used to represent almost a case study rather than a real example.

This is the hypothesis in which the structure can demonstrate that the conduct of the doctor has resulted in an exceptional and unpredictable deviation from the shared health protection program that is the subject of the obligation.

Responsibility also for non-employees

This form of joint liability between the doctor and the facility, for which the latter compensates doctors who are part of its staff thanks to an agreement that provides for the coverage of the risks related to professional liability, yet occurs against the doctors not employed by the hospital.

By judgment no. 1043 of 17/01/2019, the Cassation specified that such coverage exists even when doctors collaborate with the structure in an occasional and independent way.

Another landmark case law on this topic is Supreme Court ruling no. 28987/2019, which, tracing the evolution of case law, established firm guidelines for the division of compensation costs between the healthcare provider and the facility in the event of liability for medical error. Therefore, damages resulting from malpractice are "shared between the facility and the healthcare provider, even in the event of the latter's sole fault." The rationale for this approach is to ensure that the patient receives full compensation for damages, with full recourse only against the healthcare facility—presumably the most easily enforceable debtor—as the joint debtor with the physician.