Woman loses lawsuit, seeks better infection control in hospitals

Debra Fox, suffering from nausea that she says is a residual effect of the interferon treatment she underwent to fight off hepatitis C, whispered to her attorney that she would have to delay testifying again.

At any minute, the jurors who had been out on lunch break would be returning to listen to an afternoon of witnesses in the medical malpractice lawsuit that Fox filed after contracting the potentially deadly virus that attacks the liver.

"I don't want to throw up in front of the jury," she moaned.

At first blush, the scene that played out this week in the courtroom of Clark County District Judge Kathy Hardcastle, while undeniably sad, may not have seemed that unexpected to anyone who has followed the news in Southern Nevada over the past couple of years.

After all, lawsuits are plentiful in the wake of a Las Vegas hepatitis outbreak that saw public health authorities advise thousands of patients of Dr. Dipak Desai's endoscopy clinics to undergo testing in 2008 for hepatitis and HIV.

But consider this: Fox's lawsuit, filed by attorney Steve Day, wasn't against a Desai clinic but rather against Spring Valley Hospital, one of five Southern Nevada hospitals in the Valley Health System, a subsidiary of Universal Health Services Inc., one of the largest health care management companies in the nation.

Even though she lost her case against the hospital -- the jury returned a verdict about 75 minutes after receiving the case Thursday afternoon -- Fox hopes that her suit can help persuade people that they have to take control of their care.

"I'll still consider it a victory if my case makes people start asking more questions about what's being done regarding infection control," she said, weeping. "We can't let any more people be hurt because simple safety precautions aren't taken."

During the four-day trial, Fox, 48, unsuccessfully argued that she acquired acute hepatitis C during a five-day stay at Spring Valley for a November 2006 surgery. Within just a few weeks of the procedure to remove a large ovarian cyst, she developed the high fevers and complex gastric problems that tests determined were caused by the virus.

Mike Prangle, an attorney for the hospital, said late Thursday that he was gratified that the jury realized that the evidence did not show that Fox acquired the virus at Spring Valley.

"I believe they saw that the hospital had the proper safety protocols in place," he said. "Obviously, we have great sympathy for what Ms. Fox has gone through and wish her the best."

Fox's case illustrates how difficult it often is to determine how the virus is transmitted without the benefit of DNA testing genetically linking cases to procedures.

Though hundreds of people have said they were infected at Desai's clinics, for example, only seven cases were genetically linked.

That means most individuals who had procedures at Desai's clinics will have to convince juries, as Fox tried to do, that they did not have significant risk factors for acquiring the disease, including other surgeries, risky sex or needle sticks.

Day admitted in an interview Tuesday that Fox's case would be difficult to prove.

"Basically, what we're talking about is a matter of probability," he said. "We believe the probabilities were greater for her getting hepatitis C at Spring Valley during her five-day stay."

But on Nov. 4, 2006, 18 days before her surgery, Fox had blood drawn in the emergency room at Summerlin Hospital, another member of the Valley Health System. Theoretically, Day conceded, Fox could have been stuck with an infected needle during her trip to an emergency room for gastritis.

And on Nov. 13, 2006, nine days before her surgery, Fox had a colonoscopy at the Ambulatory Surgical Center of Southern Nevada. The facility is not associated with Desai and was given a clean bill of health by inspectors who, in the wake of the Desai clinics' outbreaks, surveyed all of the state's clinics in regard to infection control practices.

On Wednesday, Day put the centerpiece of his probability case on the witness stand -- Dr. Robert Gish, a liver specialist who successfully cleared Fox of hepatitis with interferon.

Gish, who has patients in both Nevada and California, testified it was his expert opinion that Fox acquired hepatitis at the hospital, that there had to have been a break in standard disease practices and precautions.

But under cross-examination by hospital attorney Prangle, Gish admitted he couldn't pinpoint how Fox was infected at the hospital. He did not know, he said, whether it happened during surgery or during treatment at the hospital before or after her procedure.

Why, Prangle asked, was it more likely that Fox acquired the infection at the hospital rather than at the emergency room or at the clinic where she had a colonoscopy?

Gish said there were many more opportunities for the disease to be spread during her five days at the hospital than during a short emergency room visit or during a short outpatient procedure at the ambulatory surgical center.

On Thursday, Dr. Jeffrey Crippin, a St. Louis-based liver expert hired by the hospital, testified that there was no way anyone could "credibly" say with any certainty Fox acquired hepatitis C at Spring Valley.

While he said it was "possible" that Fox acquired the virus at the hospital, he said it was just as possible that she picked it up at the emergency room or ambulatory surgical clinic.

Crippin also added that it is possible that Fox didn't acquire the virus in any of the three medical settings.

In about 10 to 20 percent of hepatitis cases, he said, clinicians never know how the disease was transmitted.

Crippin said he doesn't know all that Fox did in the weeks around her surgery. He said that even manicures, when equipment hasn't been properly sterilized, have spread hepatitis.

Harold Edwards, manager of Spring Valley's operating room, testified that proper sterilization techniques were used at the hospital when Fox had her surgery.

He noted that federal and state surveys of the hospital by public health officials found no deficiencies in infectious disease practices and precautions in the operating room in 2006.

Unfortunately, according to a government report issued earlier this month, the nation's hospitals aren't always protecting patients from potentially fatal infections.

The report issued by Health and Human Services found that as many as 98,000 people a year die from medical errors, and that preventable infections -- along with medication mix-ups -- are a significant part of the problem.

Though highly emotional after losing her case, Fox, who says she lost her information technology job because of the side effects of the treatment, continued to implore people to aggressively manage their care.

"The public should not get complacent about the transmission of this terrible disease at medical facilities," Fox said. "I want people to remember that it isn't just one health-care setting that we have to be concerned about."

Public health authorities support Fox's contention.

"Hospitals are not immune to this problem (the spread of blood-borne pathogens)," Joe Perz, an epidemiologist with the Centers for Disease Control and Prevention, said Wednesday.

A recently released government study found that in the past 11 years, 620 patients were infected in 52 outbreaks, with the CDC reporting that 10 outbreaks occurred at hospitals while 42 occurred in nonhospital settings that included clinics, ambulatory surgical centers, hemodialysis and long-term care centers. Thousands have had to undergo testing for the disease.

In February a former Denver hospital technician was sentenced to 30 years in prison for swapping drug-filled syringes intended for patients with used syringes whose needles were contaminated with the deadly hepatitis C virus.

DNA testing has found that the needle swapping in 2008 and 2009 infected at least 18 patients at Denver's Rose Medical Center.

Over that same time period in Florida, nearly 2,000 people were urged to get tested after Broward General Medical Center officials reported that a nurse used IV bags contaminated with other patients' fluids while administering saline solution to patients who came to the hospital for cardiac chemical stress tests. Testing continues to see if any new cases of the virus can be linked to the South Florida hospital.

There is a strong possibility, Perz said, that public attention brought to tragic cases like the one involving Fox will benefit the public.

"It creates more scrutiny of safety practices," he said. "What happened in Las Vegas (at the Desai clinic) has already led to safer injection practices around the country."

Contact reporter Paul Harasim at pharasim@review journal.com or 702-387-2908.