Thursday, June 14, 2012

Exposure to Dirty Surgical Instruments and Res Ipsa


Though it should never occur, as we’ve seen on this blog, Pittsburgh residents occasionally receive letters notifying them that they were exposed to improperly cleaned surgical instruments. As a result, these individuals must undergo a battery of unpleasant blood draws to determine whether the exposure led to contraction of a disease. Each time, these individuals must wait, with bated breath, for the results of their blood testing. Clearly this is something no one should have to needlessly undergo.

When this unfortunate situation arises, it’s important for area residents to know that the law allows for them to be compensated (which in legal terms simply means to balance the harm caused) with money. The amount of money depends on the extent of harm caused. Fortunately, most exposure cases resolve with a clean bill of health. But every so often the worst case scenario occurs.

No matter the outcome, the concept of res ipsa loquitor can be applied to help ensure you are fairly and adequately compensated for this preventable event.

As we have seen in prior posts, the patient is notified that the instruments utilized in their given procedure were later found to be less than fully cleaned. Depending upon the degree of exposure and related risk the patient is either advised or recommended to undergo blood work to determine whether the exposure caused them to contract a blood borne illness. As a result, the patient is forced to undergo testing that they otherwise would not have had to do.

This series of events meets each of the prongs necessary to establish negligence by res ipsa loquitor.

First, surgical tools, which must always be fully cleaned for the health and safety of patients, are only used on patients in an unclean state when negligence has occurred. It is possible in rare cases for the health care provided to point to the manufacturer of an autoclave as the negligence party. They can claim that the manufacturer negligently supplied a malfunctioning piece of equipment. But more often than not, the cause of the improper disinfection is an employee of the health care provider that did not do their job. In these cases, the first prong of res ipsa is proven because this is an event which ordinarily does not occur in the absence of negligence.

Second, the patient can never be held to blame for being exposed to improperly cleaned instruments. Had they known, you can bet they would have never undergone the procedure. And more often than not, it is impossible for the health care provider to point to anyone outside their facility as responsible for the problem. Because of this other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. The second prong of res ipsa is satisfied.

Lastly, the cleanliness of surgical instruments is always a duty incumbent upon the health care provider. Patient safety, including using only properly cleaned surgical instruments, if nothing else, is the responsibility and duty of a health care provider. Thus, in all of these cases can we satisfy the third and final prong of res ipsa, that the indicated negligence is within the scope of the defendant's duty to the plaintiff.

Through the use of res ipsa loquitor, Pittsburgh residents exposed to less than clean medical instruments can strengthen their case and improve their chances of a fair recovery.

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