Factual Causation and Healthcare-Associated Infections
Khoury, Lara, Iokheles, Mikhail, Health Law Journal
Nosocomiat infections have been a reality since the origin of medicine and have been the object of judicial decisions for a long time. Canadian judges have dealt with potential liability arising from healthcare-related infections since at least the--ginning of the twentieth century. (1) However, the increased incidence rates of nosocomial infections in the last few years have put them at the forefront of social and media scrutiny. They now present particular challenges for the courts because of their proliferation and the evasive nature of their causes. This paper comments on the judicial treatment of the uncertainty that often surrounds the causes of infections contracted in the healthcare setting. (2)
The etymology of the word nosocomial is telling at the same time as it raises questions about its appropriateness. 'Nosocomial' comes from the Latin word nosocomium, which means 'hospital,' and the Greek word nosokomeion, which means 'one who tends to the disease.' (3) As far as its etymology demonstrates that the term 'nosocomial' only refers to care provided in healthcare institutions, it is too narrow in scope. Indeed, in our modern healthcare system, medical acts connected to infections also frequently occur outside of the healthcare setting--in the community, for instance. The more general term, 'iatrogenic injury,' is also limiting as it refers to injury that is induced by (genic) the healer or physician (iatros). This is why many jurists and scientists dealing with these infections now prefer to simply call them 'healthcare-associated' infections. Nevertheless, we will continue to refer to them as 'nosocomial infections' here.
There are several definitions of nosocomial infections. For the World Health Organization, '(n)osocomial infections [...] are infections acquired during hospital care which are not present or incubating at admission. Infections occurring more than 48 hours after admission are usually considered nosocomial.' (4) The definition of the French Ministry of Health is along the same lines, but more precise:
[L]es infections nosocomiales sont les infections qui sont contractees dans un etablissement de soins. Une infection est consideree comme telle lorsqu'elle est absente a l'admission du patient. Lorsque l'etat infectieux du patient a l'admission est inconnu, l'infection est classiquement consideree comme nosocomiale si elle apparait apres un delai de 48 heures d'hospitalisation. Ce delai est cependant assez artificiel et ne doit pas etre applique sans reflexion. (5)
One central idea flows through both of these definitions: the patient must have contracted the infection after being admitted for treatment. In other words, the infection must have been contracted in the healthcare setting and, thus, must have been absent at admission. Given that most infections are asymptomatic for some time after their onset, it can be very difficult to identify with precision whether the infection was indeed contracted after admission or whether the patient was infected prior to admission but asymptomatic at that time. The 48-hour time line to which both definitions refer is helpful but, as the French definition stresses, must be approached with care; it is a rebuttable presumption, and not all infections will necessarily fit this time pattern.
It is useful to note that these definitions are broad enough to encompass both endogenous and exogenous infections. (6) Exogenous infections are those whose source is found outside of the patient's body. They include infections transmitted from one patient to another through contact with hands or with medical instruments. They can also result from germs carried by staff or by a contaminated hospital environment (air, water, food). (7) By contrast, nosocomial infections are endogenous when his or her own germs infect the patient or when the infection sets in because of the patient's particular vulnerability. …