Founded in 1995 by lawyer Diego Ferraro, the Ferraro Law Firm, based in Palermo, is an excellence in the field of civil, health and insurance law (with a particular focus on civil, medical and professional liability in general). Thanks to its highly specialised know-how and a network of competent and qualified professionals, including external ones, the firm is able to guarantee judicial and extrajudicial assistance to healthcare facilities, insurance companies, professional firms, institutions and doctors throughout the country. Lawyer Diego Ferraro speaks on the subject of healthcare-associated infections (ICA), also examining the most recent case law on the subject.
by Roberta Imbimbo
Mr Ferraro, what is meant by nosocomial infections?
By definition, hospital infections – technically called I.C.A. (healthcare-associated infections) – are those infections that were not present (i.e. they were not clinically manifest, nor were they incubating) when the patient entered the healthcare facility, but which arose during hospitalisation, although in some cases they only manifested themselves after discharge. Today, these infections represent a significant challenge for the scientific community: given their extent and frequency, they have a very significant clinical and economic-social impact in terms of prolonged hospitalisation, long-term disability, mortality, the increase in antibiotic resistance and the greater economic burden for patients, families and national health systems (in Italy alone, there are between 450 and 700 thousand care-related infections every year).
In a case concerning nosocomial infections, who bears the burden of proof?
In healthcare liability lawsuits concerning nosocomial infections, where the contractual liability of the facility is invoked due to its lack of hygienic and sanitary deficiencies or to the failure of the doctors involved to perform their professional duties, the injured party must prove that he suffered a care-related damage (i.e. the aggravation of the pathological situation or the onset of new pathologies) and the causal link between that pathological condition and the hospital stay. Once the connection between the onset of the infection and the stay in the ward has been ascertained, also in terms of time, the healthcare facility, in order to be declared exempt from liability, must prove that it has adopted all the precautions prescribed by current regulations and by leges artis in order to prevent the development of infectious pathologies, and that it has promptly and adequately treated any infection once it had manifested itself. This proof, however, is by no means simple, since the facility must demonstrate that it has concretely applied the prevention protocols envisaged for this purpose. Jurisprudence on the subject is in fact very strict: the formal adoption of the protocols is not sufficient; it is also necessary to prove that they have been correctly applied to the concrete case by providing suitable evidence of said application. With this in mind, the Court of Cassation has finally specified in detail the evidentiary burdens on facilities, requiring ‘an indication of the time when the prevention activity was actually carried out’ as well as ‘an indication of the criteria for controlling and limiting the access of visitors’ and ‘an indication of the numerical ratio between staff and patients’.
What damages are compensable today?
When a nosocomial infection is caused by negligence or non-compliance with hygiene and prevention rules, the patient is entitled to claim compensation. This compensation, taking into account the specific case and the outcome of the infection, may cover various items, including medical expenses incurred and any additional costs for treatment or prolonged hospital stay, non-asset damage, differential biological damage, and loss of chance (of survival or recovery). The latter, which the Supreme Court identifies as the ‘lost chance of a better outcome’, is undoubtedly the item of damage typically linked to hospital infections.
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