Legal Review & Commentary
Patient develops AIDS phobia: $25,000 settlement
By Mark K. Delegal, Esq., and Jan Gorrie, Esq. Pennington, Moore, Wilkinson, Bell, and Dunbar, PA, Tallahassee, FL
News: While hospitalized, a woman stepped out of her bed and onto a glass capillary tube, breaking it. She brought suit against the hospital and its cleaning service contractor, alleging she had developed AIDS phobia. The hospital settled for $25,000. The court determined the suit against the cleaning company was insufficient
to proceed.
Background: The patient said she stepped out of her bed onto a glass capillary tube and broke it. By being exposed to the blood the tube may have contained, the plaintiff asserted that she developed a severe phobia of contracting AIDS. Even though the hospital maintained that there was no evidence of blood on the tube, the hospital settled for $25,000.
With the hospital’s settlement in hand, the plaintiff’s case against the hospital’s contracted cleaning service proceeded to trial. The matter was dismissed after the court determined there was no evidence to support a reasonable belief that the plaintiff was exposed to blood. The court noted there was no evidence that cleaning service employees had access to the capillary tubes or that they knew of the tube being on the floor near the plaintiff’s bed.
What this means to you: On the surface, this seems a simple case about the necessity of educating and training staff on the proper handling and disposal of all medical waste. But the fact that this case got so far into the legal system gives rise to corollary issues such as the nature of contracted services and, more importantly, the role that patients’ sensitivities play in the risk management arena.
"Obviously, there is the need to train and educate staff on the proper means of handling and disposing [of] medical waste, and this training and education must take place on an ongoing basis," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD.
"It is not enough to think that once staff are instructed on policies and procedures, they will adhere to them. Given staff turnover and coverage by agency personnel, even the most routine functions such as the disposal of materials containing blood and blood products must be given again and again," she stresses.
Ensure contractors are educated, too
"The need for education and training also extends to subcontracted entities. If you are not providing them with the education and training needed to perform the job, then you must see to it that they are contractually bound to provide it themselves," Barton says.
"In this instance, had the capillary tube contained blood, and had they been called to site for clean-up, the contract cleaners would have been responsible for handing the medical waste. There is often the misperception that once a responsibility has been contracted out, the liability is also transferred. This case demonstrates that this is not necessarily what happens.
"As seen in this case, even though the cleaning service was responsible for cleaning the floor, the court deemed that the cleaning people did not have access to capillary tubes nor had they been given notice by the nursing staff that something was on the floor that required their immediate attention," she says. "Thus, the court found no liability against the contractor. Meanwhile, the hospital settled prior to trial. Bottom line: Contracting out duties and responsibilities does not automatically translate to a transfer of liability."
Most important is the issue of patient sensitivity. There is a legal axiom that one takes the plaintiffs (or patients, in this context) as one finds them. Prior to admission or treatment, there is no way to determine all the nonclinical predispositions a patient may have. There will always be the instances of nuisance cases — someone out to make a quick buck through a frivolous claim. While that might have been an issue in this particular case, it cannot be assumed that everyone in the general public understands the risk (or the lack thereof) of AIDS as well as health care workers.
"Quite understandably, once staff were made aware of what happened to this patient, they probably dismissed it as no big deal.’ With sufficient training and education on patients’ sensitivities, one might have handled this situation differently and avoided the claim and settlement altogether," Barton says.
"This was not a case of injury to the body, but probably more of an insult to the patient’s intelligence. Had the first or even subsequent health care workers on the scene fully explained the situation and perhaps solicited the patient’s thoughts and suggestions as to how to avoid the incident in the future and brought in social workers and/or infectious disease experts to educate the patient on the risk of AIDS from the exposure, it might have been possible to avoid the exposure to the claim and settlement," she says.
"One should never underestimate the ability to mitigate claims by working directly and honestly with the patient, particularly in the instances where no real bodily harm is done."
Reference
Denise Heller v. Beth Israel Hospital and Marriot, New York County (NY) Supreme Court.
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