Forensic Genomics and "Nosocomial" Tort Litigation

Gina Kolata, in today’s New York Times, reports on the advances of forensic genomics as used to determine the cause of last year’s outbreak of drug-resistant bacterial pneumonia at the Clinical Center of the National Institutes of Health in Bethesda, Maryland. There, a woman was admitted to the hospital, infected with a drug resistant strain of Klebsiella pneumoniae, the bacteria that causes a type of pneumonia. Despite stringent efforts by the hospital to quarantine the patient, seventeen other patients were infected with the drug-resistant strain, six of whom died. Many of those, however, had never come in contact with the patient. Laboring to determine the method of transmission, the hospital genetically sequenced the particular strain of infectious bacteria and was able to successfully map a route of infection. The hospital was eventually able to control the outbreak.

The novelty to this story lies less in epidemiology than it does genetics. The NIH outbreak and its control demonstrates that genetic sequencing of bacteria–an extravagance only ten years ago–has become more accessible and, importantly, better able to determine the root cause of such infections.

This may have implications for “nosocomial” tort litigation–lawsuits by patients against hospitals and medical care providers arising from a hospital-acquired infection. The past decade has seen no shortage of such cases: there have been high profile nosocomial lawsuits in New YorkUtah, and Ohio. As one can imagine, however, such lawsuits have been incredibly difficult to litigate because of the issue of proof. Did the infection originate at the hospital? Was there a traumatic event? Did the hospital, in fact, fail to observe sterile technique? Was the infection nonetheless inevitable despite a sufficient standard of care? Did the plaintiff’s habits in recovery contribute to the infection? In a 2000 article in the Columbia Journal of Law & Social Problems, one commentator remarked of the science of the time that “[i]t will often be impossible to identify the source of the pathogen that caused the disease. . . . [It is difficult to determine the] exact identity of the pathogen in any given infection, or the exact identity of two or more pathogens where it is alleged that cross-infection (from one patient to another) occurred. Records are unlikely to be available identifying every pathogen in a hospital.”

While this is certainly still the case, Gina Kolata’s article, and advances in genomic forensics, show that hospitals–and perhaps tort plaintiffs–now have more tools at their disposal.