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Winners and Losers in Healthcare litigation

The lawsuit against the Hospital that infected my father was dropped on March 26th, on a technicality.  The technicality was a misunderstanding and had nothing to do with the facts.  The facts are and always will be that Dad’s Hospital had a MRSA outbreak.  He was the 3rd of three patients who became infected in his Hospital in a month’s time and all three died.

Who wins and who loses in  Dad’s medical harm case.

The first thing I’d like to do is thank my attorney for taking Dad’s case.  Dad asked me to do this, when he found out that his Hospital had infected him, and my attorney did this work on a contingency.  He is a saint for doing this because most lawyers would not take an Hospital Infection case. Even though patients die every day because of Hospital Acquired infections, these cases are notoriously difficult to win.  My attorney worked for me for free because he sees and understands that  injustice.  I am eternally grateful to him for taking Dad’s case.

Of course the biggest loser was Dad.  He lost his strength, ability to walk and eat, his independence, and what remained of his health.  He went from being upright, walking with a walker, and back in his own home after 12 days of Hospital rehabilitation, to being a completely bed bound patient. He lost it all overnight.  Then ultimately, he lost his life.  When he died, he was in a stark lonely nursing home isolation room.  That was the last place on earth that he wanted to be.  His death was a release from loneliness,  isolation and suffering.

My family also lost.  My brothers and I lost our father, and all of our kids lost their grandfather.   My mother lost her love of 62 years.  Although Dad was disabled, my parents had lived independently in their own home and they looked after each other.  They were inseparable, except by death.  My mother now lives a very solitary life…alone in the home that Dad built for them.  I live 70 miles from her and my brothers live even further away.  Her life has continued to shrink since Dad left.  When we talk on the phone, or visit, her sadness and loneliness comes through.  Yet, that is her home, that she shared with Dad, and she is not at all interested in leaving it to live closer to me.

Then there is the monetary loss.  Medicare and private insurance paid almost $50,000 for my fathers care at the end.  Around 2/3 of that was for care needed because he became infected in his hospital.  Those were costs that I believe should have been the Hospital’s loss. Even though they failed to protect my father from infection, they got paid a lot, in full.   I guess that means the Hospital was a  winner, of money at least.

When my father went into the nursing home for 9 weeks, my parents paid out of pocket for that.  If he had not been infected in the Hospital, it is likely that he would have continued to gain strength after rehabilitation and been able to continue living at home with my mother.  My parents, again, lost financially, around $17,000 for long term care.  That was an out of pocket expense to my parents, an expense that was again a result of the infection he contracted while rehabilitating from a minor ankle fracture.

So, it appears that the biggest losers were my father, my mother, and my family. But, there were other losers too.

The Hospital that cared for my father also lost.  They lost my family’s respect, admiration and trust. It was in that Hospital that I started my nursing career.    According to the questions and comments of their defense attorney (who represented them and spoke for them),  they seemed to think that my father’s infection was his own fault. That makes me very angry.  They kept the infections in their facility a secret, so my family couldn’t possibly have known the risk my father faced. Had they been more transparent, we could have made a more informed choice for his care.   From my observations they hadn’t changed anything to prevent MRSA infections, even though 2 other beloved seniors from the community had already died with MRSA before my father became infected.  Those other two families suffered great loss too.

The hospital also lost the money that they paid their “super” attorney. I wonder how much the Hospital  lost to this lawyer.  The attorney’s legal tactic seemed to be  1. place blame on Dad for his Hospital Acquired MRSA infection, and 2. belittle/discredit me and my volunteer patient safety work.    Rather than the Hospital admitting fault, apologizing, fixing the problem  and offering my family emotional and financial support, they paid the attorney (probably a ton of money)  to further alienate my family.   I pity any attorney who makes a living by attempting to beat down victims and their families, and for facing a job like that every day…..people like that seem ethically and morally deficient to me.  So, actually, in my opinion, that type of attorney is a loser too!  I also pity the Hospital for not seeing how much more constructive it would have been to work with me and my family to come to resolution and to welcome us to work on the solutions, rather than further alienating us.

My father’s community lost too.  They lost 3 beloved seniors, who had worked, loved and raised families  there.   They were cherished by their families, their churches and their friends and neighbors.

What could everyone have done differently?  The Hospital could have made aggressive  changes immediately after the first of those 3 beloved MRSA victims became infected.  The changes are outlined in the CDC recommendations, which they claimed they followed. If  they had actually done what they said they did, they could have prevented my father’s infection and he could have lived longer and independently.    They could have been transparent about the infections, so my family would have been fully informed before we chose where my father would get rehabilitation for his broken ankle.  My family could have engaged more aggressively and asked more questions about the Hospitals infection rates. We also could have spent more time at his bedside and been watchdogs to be sure that every single person who touched him had washed their hands.   The housekeepers could have cleaned the rooms better. The doctors could have made more effort to give the right antibiotics by doing appropriate cultures and sensitivities of Dad’s sputum.  They could have begun screening patients for MRSA immediately after the first victim became infected in their hospital,   to be sure that anyone carrying the organism was kept separate from those who did not carry it.

My father definitely could have been better protected from infection, and he could have lived longer.

When we get right down to it, the only one who ends up winning from this case is the Hospital’s attorney….his bank account is fatter.  The  rest of us involved have all suffered a great loss.   I feel badly for everyone who lost, but I can’t feel sorry for the’ Hospital’s attorney.  Maybe I will find a way to understand him and feel some compassion for him in the future.  I just hope for his sake that it doesn’t involve him losing a family member because of preventable infection.  I want everyone, including the opposing lawyer’s family, and the Hospital that infected my father,  to benefit from my work to stop Hospital Acquired Infections and Healthcare harm.  I fully intend to move on and make progress with this work.



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  1. March 29th, 2013 at 10:37 | #1

    Thank you, Kathy Day, for sharing your beloved father’s patient harm story with the public. Your compassion for your family and community spills over to benefit public health of the US. population. Those who perpetrate & profit from medical harm are not “getting away with it” – for they are locked into lives of unshakeable knowledge of their own complicity in preventable and devastating harm to another valued human life.

  2. Lisa Freeman
    March 29th, 2013 at 10:58 | #2

    I am sorry that things worked out this way. But you have taken a very tragic situation and, by sharing it in this way with the world, you are making many people winners. You are so right in your descriptions of how this loss impacted so many different people and entities. In a somewhat ironic way, your message makes your situation a winner. Because of the tragedy and what you are doing to publicize it, an infinite number of people might become winners because they are hearing about it and you are raising awareness, fighting to change laws and more importantly, to change practices. You should send a copy of this blog to the hospital’s defense lawyers. Maybe, as people, they can get it too and it doesn’t hurt to remind them of how many people are victims of this neglegence. You never know if they might change their practice in the next case that they take on.

  3. March 29th, 2013 at 11:46 | #3

    Kathy, I am so sorry to hear that your case was lost because the only way we can make a change, it seems is to financially punish healthcare facilities for their negligence and lack of transparency. The complacency by many facilities is still shocking and families, like yours are left many times shattered and disillusioned about healthcare. Their tactics should be one of support to fix the problems and not victimize all over again. Too many lives have been cut short and the pain and suffering continues. Where is the humanity? We need to put humanity back into healthcare with patient safety and the patient coming first.

  4. March 29th, 2013 at 12:41 | #4

    That is heart breaking… Thank you for sharing your story Kathy, Prayers.
    I too feel the same loss of respect, and yes the attorneys are the only ones who benefit the most $$$ at the expense of every future patient’s life. so sad.

  5. March 29th, 2013 at 12:48 | #5

    Thank you for a truly wise and sad post, Kathy. For a very long time, I have felt that using litigation to deal with tragic medical mistakes often goes awry. This is true, not only with medical malpractice, but also in other aspects of civil litigation, such as divorce, child custody, family violence, and personal injury. It is very difficult to get through proceedings in any of these areas and to come out either emotionally or financially whole. In fact, I think there are as many problems with the civil legal system as there are in medicine. The difference is that a smaller portion of the population is affected by these issues than are affected by their medical care. Your attorney was clearly one of the good guys, but being a good guy does not appear to have put any food on his table. I hope that you have full copies of the entire case, including depositions. Maybe something positive can come of looking at them later — when the wounds are not so fresh.

  6. March 29th, 2013 at 16:08 | #6

    Kathy, This is a beautifully written tragedy that so many who have experienced medical harm can relate to. The tactics of blaming the victim, obscuring facts, deflecting, etc. are endemic to our civil legal system and medicine. I sometimes wonder if these people are totally devoid of compassion or just have split personalities.

  7. March 29th, 2013 at 16:10 | #7

    Thank you for sharing your story, your dad would be so proud of your work and passion for others! I could not agree more in you conclusions. As long as hospitals are paid for the harm that they create, nothing will really change. No other industry would tolerate such profitable incompetence when you consider what is accepted and permitted to continue in healthcare. Disclosure would have made a world of difference for your family and the families of the other patients. I strongly hope that many local healthcare consumers read your blog widely and use other facilities in the area based on your story. How and why attorneys can sleep at night and live with themselves is beyond me, but not for us to judge. I hope that you might go into more detail in a future post as to what the technicality was and how tragic it is that cases of medical harm rarely move forward on the actual merit of the case. Perhaps once we rid the system of confidentiality agreements and all of the case dismissals based on these “technicalities”, we might actually be able to achieve safer healthcare with basic simple and life respecting standards of care across the entire healthcare spectrum.

  8. Kathy
    March 29th, 2013 at 17:50 | #8

    Thank you all for your understanding and kind comments. All of you have suffered medical harm and damage, so you completely ‘get it’ where I am coming from in this blog. There is never justice for the harmed….it is impossible. But, accountability, explanations, and transparency goes a long way. When Dad’s Hospital Med surg manager arrogantly told me that “No, we do not do ANY MRSA screening in our facility” I knew they didn’t have a clue about what an outbreak was or how to handle it, and that they were not open to anything I had to offer. He had the audacity (or ignorance ) to say that to me while my father laid in a nursing home across town dying from the toll that MRSA had taken on his old body. It still astounds me that Hospitals can screw up, be so wrong and still stand strong that they have met a “standard of care” and done “what CDC has recommended”. Wow, we are all in a lot of trouble if Hospitals do not smarten up and practice preventative care…and stop these horrid HAIs now.

  9. March 29th, 2013 at 18:41 | #9

    I am so sorry and yet not surprised at all. That is really sad to say but very true. This is what happens every single day and the media just doesnt get to report hardly ever. I hope that we are starting to see a change. Because this is a SERIOUS HEALTH CARE CRISIS. We must keep talking or we will all lose to greed gone wild. I am so sorry for I lost my little girl who was 7 because they refused to do a culture and give an antibiotic. It nearly killed me.

  10. Kathy
    March 29th, 2013 at 20:51 | #10

    So sorry Michelle about your little girl, and you are absolutely correct, it is not surprising. To be honest, I didn’t expect anything different. and that is a sad statement from a life long RN. The change needs to come from the top down and every employee has to be a watchdog for patient safety. That will be a long time coming…..

  11. Dottie MacCabe
    March 29th, 2013 at 23:02 | #11

    Have followed your quest since this started with your dad whenever anything was in the news or on TV. You and I both know that unfortunately the hospitals only care about protecting themselves and not the patients or anyone else that becomes sick, is injured, or has a problem while in the hospital the lawyers always look to place the blame everywhere but where it should be. Both of us have been in nursing for many years and it has become a sad situation when it has now come to the point where I no longer feel safe seeking treatment at the place that I worked for years unless I’m dying and then that’s up for grabs. The thought of having to have any sort of surgery in the future scares me to death because they just don’t seem to want to address where the problems are and fix them so therefore everyone is at risk. Keep strong and continue your fight as I know for a fact you have made them more aware and therefore some changes have been put in place. Your dad is looking down from above and he is very proud of all you’ve done.

  12. Kathy
    March 30th, 2013 at 08:01 | #12

    Oh my God Dottie….come work on this Patient Safety Campaign with me!! It is so wonderful to see your comment on my blog. There are so many issues in Patient Safety, and I know exactly how you feel, about your own safety if you should need surgery or care. I had surgery in 2011 and I was petrified! Let’s connect and talk this out. Next week, at the Maine Quality Counts annual conference, I am a copresenter on a panel about consumer engagement. I will tell Dad’s story, and mine….I hope you will consider coming to Augusta to this very important conference. Some of the subjects might turn your head!!

  13. Marian
    March 30th, 2013 at 11:00 | #13

    Kathy, I’m so sorry to hear that your beloved father and your family had to endure this MRSA nightmare. I understand your heartbreak because my father, too, had MRSA, which contributed to his death. (All the antipsychotic drugs he was given without informed consent was the main cause of death.) My father caught MRSA in a nursing home. It started in his eyes and by the time he was hospitalized from the drug side effects a week later, the infection had spread to his lungs. What we couldn’t understand was the lack of precautions at the nursing home. My father was placed by the front nursing desk while he was very infectious; everyone who went in and out of the facility had to pass by him. I’m glad you are getting your story out so that others will join the fight to help prevent MRSA. It’s sad that the community is willing to do what it can, but the health industry just shrugs and says, “Oh, well. That can happen.” (I even saw a hospital nurse treat my father with bare handed.) By patients and families joining forces, perhaps we can help the medical establishment see the need for more precautions so that others won’t have to endure what we have. Thank you for sharing your story.

  14. Suzan Shinazy RN
    March 30th, 2013 at 16:23 | #14

    This is so well written and explains the whole picture very well; the parts most people do not know. I hope you can get this published, it is powerful and educational. Thank you for doing this, I know it is not easy.

  15. Michelin Anderson
    April 7th, 2013 at 09:59 | #15

    Kathy – your story is so heartbreaking and delivered so well. We will only have a better outcome in the future from the efforts of those who have experienced loss, speak up and demand competent healthcare with accountability put to those who fail so badly. I really admired your strength and intelligent approach. So sorry for your entire families loss. When facts don’t matter – something is very wrong, especially when it comes to life matters.

  16. April 10th, 2013 at 17:13 | #16

    I first would like to say that I am sorry for the loss of your father and God bless you and your family during such a difficult time. Secondly, I commend you for memorializing your father by making a difference and addressing the spread of nosocomial infections in hospital settings.

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