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Physicians and hospitals can be expected to be subject to increasing legal risk

Portrait of DDr. Astrid Hartmann
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The increasing number of HAI and AMR raises a series of legal questions. “It seems important that not only hygienists but all involved health care professionals get familiar with the legal aspects of this issue, sais DDr. Astrid Hartmann, LL.M (Cambridge). The Austrian attorney-at-law, doctor of medicine and director of the law firm HARTMANN, which is specialised in medical and healthcare law, was interviewed by Carola Timmel.

Mrs. Hartmann, as a lawyer and doctor of medicine you have a very good insight into legal questions concerning the topic of HAI. In October I asked Dr. Ernst Tabori, director of the German consulting centre for hygiene (BHZ), about the situation in Germany. He told me that the burden of proof may be reversed if a lack of hygiene is identified in the healthcare facility. What’s about the situation in Austria?

In this respect the legal framework in Austria is comparable to the situation in Germany. If a hygiene deficit is obvious, the burden of proof may also be reversed in Austria. This would mean that the burden of proof would be shifted from the patient to the healthcare facility or the respective health care professional in charge.

Can you give an example?

Some years ago there was an Austrian Supreme Court case involving the transmission of E. coli pathogens in a hospital.  It turned out that the hygienist did not comply with his obligation to ensure the right hygiene parameters. Additionally, no emergency measures against the E-Coli outbreak and the retransmission were initiated. This error was classified as an injury of the treatment contract between the patient and the doctor/hospital.

How often does it occur that patients lodge a complaint and get through with it?

The number has increased rapidly. Today, patients are more courageous and better informed about the general requirements of compensation for damages under Austrian law than they were just a few years ago. Thus, also physicians and hospitals can be expected to be subject to increasing legal risk. To establish (medical) negligence, a plaintiff must show that there was (1) a duty recognized by the law (2) a breach of that duty in that there was a failure on the part of the healthcare facility to meet what was considered to be the standard of care at the time the treatment was rendered, such as particular hospital hygiene and infection control regulations and standards, (3) a causal relationship between the treatment and the resulting injury, and (4) actual loss or damage to the plaintiff. In Austria, compensation for damages is thus awarded if the following can be proved: damage, causality and adequacy, an unlawful act and culpability. It thus seems important to me that not only the hygienists but all involved health care professionals get familiar with the legal standards of hospital hygiene and infection control.

The fact that more and more patients claim their right certainly generates pressure on the health care facilities?!

During my medical internship at the New York Presbyterian Hospital and Weill Cornell Medical Center I was impressed by the high level of standard procedures implemented throughout the hospital, the detailed documentation standards, and strict compliance with hygiene requirements.  I spent several weeks at the obstetrics and gynecology department which is generally a medical discipline in which damage claims are raised very often and therefore strict standards are essential to prevent any damages. In most countries, pitfalls generally are a weakness in the organisational set-up, misinterpretation of instructions and mistakes in documenting. Therefore, my recommendation with respect to guidelines on hygiene includes the following: Provide clear and simple in-house guidelines and SOPs and get them fixed as leaflets in each and every treatment room. Regular team trainings are also essential. Although knowledge of and compliance with the published recommendations and guidelines, e.g. the WHO, do not offer complete protection from legal risk, they help the clinician avoid litigation and to defend against it. Failure to comply with such standards has the potential to make any subsequent legal case more difficult to defend.

Did you observe this also in the interaction with the patients?

Yes. The awareness standards are generally high – and there are plenty of measures taken to raise awareness on the consequences of not obeying to hygiene standards, including through public information and education programmes. In Austria, public information standards are also very high, but there is still further potential. Initiatives such as the Semmelweis Foundation are increasingly important – not only concerning the issues of HAI and AMR but also relating to medical legal issues.

By the way – in March 2017 the Semmelweis Foundation has its second CEE Conference, and for our Conference in 2019 the Foundation plans to integrate the issue “HAI and legal questions”. In which way this issue should be approached?

I think that a practical setting would be best: For example a training on which kind of cooperation and communication standards in a cross-functional setting are needed: how can interfaces between a number of systems or work groups within a healthcare facility be handled most efficiently? And which mistakes are happening there and how can they be avoided? Everybody knows something about hand hygiene and most health-care facilities have recommendations for standard precautions: nevertheless, together we need to find ways so that the rules are applied with no ifs or buts and to create awareness about the importance of hygiene standards and the consequences of ignoring them.

Practical setting? That reminds me of the IMED conference (Nov.) in Vienna, where important issues on the subject of HAI & AMR were discussed in course of a so called hackathon (= neologism of Hack & Marathon)

Yes, that seems to be a good possibility to get in touch with this complex issue.

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