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Houston court of appeals opinion contains roadmap to prove hospital-acquired infection medical malpractice

Infections caught during healthcare number 1.7 million each year in the U.S., with 99,000 associated deaths

Houston’s First Court of Appeals recently entered an interesting opinion in a medical malpractice case dealing with a healthcare-acquired (iatrogenic) infection after a patient received a series of three epidural steroid injections to address or back pain.

The case is styled Kelsey-Seybold Medical Group, PLLC d/b/a Kelsey-Siebel Clinic and Ahmed I. Sewielam, M.D. v. Eddie Lynn Cheeks, No. 01-19-00948-CV, In the First Court of Appeals. You can read the opinion here.

In this appeal, the court dealt with the second round of objections by the defendants to the sufficiency of an expert report offered by the plaintiff. In any Texas state court medical malpractice case, a plaintiff must produce one or more medical expert reports identifying the standard of care, how was breached, and how substandard care injured the patient.

Under this tort reform requirement, defendants may object to the sufficiency of the reports and, if the trial court doesn’t agree with them, they can delay the trial court proceeding by making an interlocutory appeal. In this case, Kelsey Seybold and Dr. Sewielam made to interlocutory appeals. On their second attempt, they were shut down by the First Court of Appeals.

In this interesting opinion, the court dealt with the difficult issue of how a plaintiff can prove that a hospital or facility-acquired infection was caused by negligence of the doctor, nurse, or facility, as opposed to the possibility that it was an unavoidable complication.

As a Houston, Texas medical malpractice attorney, the story of this case is similar to many I have heard from clients.

A woman in her late 60s had chronic lower back pain and went to Kelsey-Seybold Clinic for three rounds of epidural spinal injections of corticosteroids. Five days after the last injection, she was found unresponsive at home and was rushed to a hospital.

While hospitalized, her doctors ordered blood work that revealed she had a Strep. Pneumoniae infection. An MRI showed that she had paraspinal abscesses bilaterally (on both sides) at the spinal levels of L4–L5. An abscess is a walled off collection of infected fluid or pus.

She was ultimately discharged home to continue intravenous (IV) antibiotics for six weeks. About a week after discharge, she was readmitted to the hospital because of stroke symptoms. A blood culture revealed she had another infection, this time a drug-resistant strain of Acinetobacter baumannii. An MRI of her spine showed that the paraspinal abscesses were growing.

The plaintiff relied on a medical expert who was residency-trained as a pediatrician, but who had experience as an Epidemic Intelligence Services Officer at the U.S. Centers for Disease Control (CDC). The plaintiff’s expert was board certified in pediatrics, held two medical school academic appointments, and was teaching infectious disease epidemiology to medical students at the time of his report.

According to the expert’s report, his 40-plus years of medical practiced concentrated on the field of infectious disease epidemiology, including serving as the State Epidemiologist for two different states. Epidemiology is a field of medicine focusing on how diseases develop and spread throughout populations or communities.

The expert described his opinion that: “it is more likely than not that the contamination occurred at the Kelsey Seybold Clinic where the intraspinal injections were administered to Ms. Cheeks. The bacterial contamination introduced into Ms. Cheeks’ spinal area could only have occurred if the Kelsey Seybold clinic fell below the standard of care for maintaining sterile procedure.”


The defendants objected to the medical expert’s report, arguing that it was insufficient because the expert was a pediatrician with no experience with steroid injections.

The appellate court noted that the expert’s supplemental report clarified that, “I have not opined on the standard of care for pain management. I have not raised any questions about the diagnosis made by the physician, the procedure performed, the technique of the physician, the location of the injection or the choice of medications used for the injection. My opinions related solely to a standard of care that applies not just to pain medicine, but to every specialty in medicine, specifically aseptic technique. Aseptic technique is the steps necessary to prevent infections. Failure to observe aseptic technique is an important cause of iatrogenic infections—those occurring as a result of medical interventions—as was the case with Ms. Cheeks. In this matter, my background in infectious disease makes me qualified to opine on the standard of care.”

The appellate court found it significant that the expert supplemental report explained that his opinions related solely to standard of care that applied not only to pain medicine, but to every specialty of medicine, specifically aseptic technique. The court was also persuaded that the expert explained that his background in the medical specialty of infectious disease qualified him to give opinions of the standard of care relevant to aseptic technique, or the steps to avoid infections.

The court concluded that it was within the trial court’s discretion to find that the expert in this case was qualified to render these opinions.

The opinions

The defendants also objected to the adequacy of the expert’s opinions.

The First Court of Appeals also observed that the expert’s supplemental report explained how the iatrogenic (hospital/facility-acquired injury) may have occurred: “Breaches in aseptic technique permit introduction of pathogenic microorganisms into the human body whereby they may cause human disease. There are myriad ways in which aseptic technique can be breached.” The report explained:

• The aseptic technique could occur because of lack of knowledge or training as well as unnoticed or unreported events.

• The aseptic technique could have been touching sterile equipment with either inadvertently contaminated glove or bare hand, exhalation of respiratory secretions into the air contaminating sterile equipment or wounds, reuse of needles, sharing vials of injectable medications even when labeled for single use and aerosols generated by faucets with running water.

• Breaches in technique are sufficient to causes of infections but are not typically noted in the medical records. Reasons why a breach in technique would not be recorded include medical personnel not having knowledge about a potential breach in technique, the breach not being observed, staff observing a breach but not reporting it and simple callousness by medical staff.

Specific to the case, the expert offered his opinion of potential breaches in aseptic technique that may have occurred during this patient’s care:

• The patient was injected with 2 mL of Naroprin. The smallest, while this medication is available in 10 mL. Although it’s labeled for single use, it contains five 2 mL doses. If it had been reused for multiple patients, it would violate the standard care and could have resulted in bacterial contamination that would explain the patient’s infection.

• The patient was also injected with normal saline into the epidural space. For similar reasons, reuse of files or bags of normal saline could have resulted in bacterial contamination.

• The medical records from the date of the third spinal injection did not note whether all operating room personnel properly war protective masks while in the operating room. If the staff didn’t do so, then equipment or the injection site could have been contaminated with respiratory droplets containing bacteria that cause the patient’s infection. Significantly, the patient signed an affidavit, on which the expert relied, that identified two nurses present for the procedure who were not wearing protective masks at the time the injection began.

The expert concluded that, “Is more likely than not that the cause of Ms. Cheeks’ epidural abscess was bacterial contamination introduced into her spinal area during epidural injections of steroids for pain relief at the Kelsey-Seybold Clinic. Such contamination could only have occurred if the staff of the Kelsey-Siebel Clinic fell below the standard of care for maintaining sterile procedures in the operating room.”

As I mentioned earlier, this case ping-pong back and forth between the trial and appellate courts with to interlocutory appeals. On the first time up, the appellate court concluded that the original report was inadequate because it didn’t identify any particular failure to maintain sterile procedures or the persons responsible for the alleged failure. Instead, the report only listed possible violations of the standard of care, without stating that any of the possibilities actually occurred during the patient’s care.

In contrast, the Court of Appeals found it significant that the expert’s supplemental report added a conclusion that it “is more likely than not that the source of Ms. Cheeks’ infections was medical staff you do not were surgical masks during the entirety of her injection procedure.” The expert was able to reach this conclusion in reliance on the affidavit of the patient herself.

Based on this additional language, the court concluded that the supplemental expert report was sufficient because it identify the standard of care for giving an injection using sterile, aseptic technique and it describes what the defendants should have done differently (properly wear masks in the operating room) and how it caused harm.

What this means

This well-reasoned opinion from Houston’s First Court of Appeals provides useful guidance for plaintiffs to meet the preliminary expert report requirements in cases involving hospital or facility-acquired infections.

If you or a loved one is been seriously injured because of poor hospital, facility, or physician care, then contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.

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