Can You Sue A Nursing Home For A Death From A Surgical Site Infection?

Nursing homes do not just serve as a permanent residency for elderly people who can no longer live on their own.  They also serve as a temporary residency for anyone who cannot return home after undergoing surgery in a hospital.  Here they serve as a rehabilitation facility for people of all ages until they can get back on their feet and return to their home.

Unfortunately some of these residents develop infections at their surgical site.  This is an infection of the incision or organ space that develops within 30 days after surgery.  The Joint Commission estimates about 500,000 surgical site infections develop yearly in the United States.  If such an infection is not diagnosed and treated timely, it can lead to serious complications and even death.

When you lose a loved one due to an undiagnosed surgical site infection (SSI) the question then is was anyone at fault for this – i.e. was this an infection that should have been diagnosed and treated sooner – and if so who?  Typically there will be numerous medical care providers involved in your loved one’s care in these scenarios: the doctor that performed the surgery, an attending doctor following your family member while they are rehabbing at the nursing home, and the various nurses and medical staff caring for your family member at the nursing home.

However the doctor who performed the surgery normally is not associated or involved with the nursing home.  Usually a follow up appointment is scheduled with the surgeon at some point in the future.  He can also get updates on your loved one’s medical condition from time to time from the nursing staff.  Likewise the attending doctor may not be an employee of the nursing home and may only see your loved one once every 7 – 10 days.  In the interim the attending doctor will also rely on reports from the staff at the nursing home.  During this time then, it is the nursing home staff that is serving as the most regular source of care for your family member.

This does not automatically mean the nursing staff is primarily at fault.  While nursing staff do not make primary diagnoses, they should be trained in recognizing signs and symptoms of an infection so they can report them to your loved one’s treating doctors.  Therefore their fault or liability depends on what, if anything, the nursing staff was reporting to your family member’s treating doctors about their condition.  According to the Nursing Home Reform Act §483.10(g)(14) a nursing home must immediately inform the resident, their physician, and the resident’s representatives when there is a significant change in the resident’s physical, mental, or psychosocial status (that is a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications).  Therefore if the staff is not recognizing or reporting the signs of a serious infection – such as a wound that has redness, swelling, is painful to touch, is oozing, etc. – the staff may be liable if the infection goes undiagnosed and untreated.

However the nursing staff may have appropriately reported the signs of an infection to your loved one’s treating doctors who failed to act on those reports.  Or the treating doctors – such as their attending physician – may have examined your family member at a time when they should have realized there was a serious infection that needed treatment but failed to do so.  In this scenario it could be your loved one’s attending doctor who is primarily at fault, or both the nursing home staff and attending doctor could be at fault.  This will take consultation with medical experts in order to fully determine.

The Thistle Firm is experienced in handling nursing home infection cases.  If you lost a loved one due to an untreated and undiagnosed infection at a nursing home the attorneys at the Thistle Firm are here to take your call at 215-568-6800.

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