Medical Malpractice Claims for Hospital-Acquired Infections

Hospital-acquired infections (HAIs) are shockingly common. In South Africa, they’re associated with alarming mortality rates.

In particular, children, the elderly and immunocompromised patients are vulnerable to infection.

How common are hospital-acquired infections in South Africa?

On a global scale, around  1.4 million people experience complications arising from HAIs at any given time.

According to WHO estimates, seven in 100 acute-care patients in high-income countries develop an infection at least once during a hospital stay.

In low-income countries, such as South Africa, the average infection rate is twice that. Alarmingly, one in 10 HAI-affected patients die.

A 2022 study of the incidence of HAIs in Africa supports WHO estimates. The results established a pooled infection rate of 12.76%. Surgical-site infections accounted for more than 40% of all recorded HAIs.

Can you sue for an infection you get in hospital?

On occasion, hospital-acquired infections are unavoidable. Individuals seeking medical care are often weak and frail. These patients are more susceptible to naturally-occurring complications, whether in a healthcare facility or not.

Other infections are preventable. They occur as a result of a medical failure or mistake.

If it can be proved an infection started in hospital, and a doctor or nurse did not provide the accepted level of care, there may be grounds to sue for compensatory damages.

When is a hospital-acquired infection grounds for a malpractice claim?

A hospital-acquired infection is only grounds for a medical malpractice claim if it can be established that:

• the infection occurred in hospital
• healthcare professionals deviated from the accepted standard of care
• their actions or omissions directly contributed to causing the infection
• the patient suffered harm as a result.

Factors that can imply liability include an unsanitary hospital environment, failure to follow established sterilisation procedures, the use of contaminated blood and delays in diagnosing and treating the infection.

When is infection typically NOT grounds for a claim?

When an infection is pre-existing, or diagnosed quickly and treated according to accepted medical practices and protocols, the hospital and its staff cannot be held liable.

There are only grounds for a claim when employee negligence or malpractice directly contributed to the outbreak of an infection.

Can patients claim for COVID infection in hospital?

In countries like the UK, it has not been determined whether a cause of legal action exists for negligently transmitted COVID infection – either in or out of hospital.

Technically, it may be possible to institute a claim to recover damages. The difficulty lies in establishing medical malpractice.

Establishing the source of infection is a major challenge due to the airborne nature of transmission. Then there’s the lengthy incubation period of COVID, which casts doubt on exactly when exposure to the infection occurred. Was it prior to or after admission to hospital?

Lastly, the infection may have been transmitted by an asymptomatic carrier of the virus who had no idea he or she was infected. Under these circumstances, determining negligence is virtually impossible.

What’s required to support a claim?

For a medical malpractice claim to succeed, there must be sufficient evidence that the hospital, or an employee, negligently caused the infection or failed to take reasonable steps to prevent it, and the infection led to specific damages.

Doctors’ notes and medical records, witness statements and expert testimony from independent medical professionals are types of evidence used to substantiate a claim.

Assembling and organising evidence is complex and time consuming. A suitably qualified attorney has the experience and resources to investigate the case, gather evidence, file a claim and get the best possible settlement on your behalf.