Virginia Mason Medical Center has taken the unusual step of teaming up with a patient's widow to sue medical-device manufacturer Olympus over contaminated duodenoscopes.
The Seattle hospital announced last week that it was siding with a patient's widow in a lawsuit against Olympus America. Virginia Mason is also named as a defendant in the lawsuit. The patient, Richard Bigler, died in August 2013 from a bacterial infection caused by a contaminated duodenoscope used during a procedure at Virginia Mason. He was one of 32 patients sickened in the outbreak between November 2012 and January 2014 and one of 11 who died.
Olympus Vice President Mark Miller said in a statement that the company expresses its sympathy to the infected patients and their families and is “taking this matter extremely seriously.”
“We do not normally comment on active legal matters; however, we are continuing our investigation into the reports at Virginia Mason to be able to provide a more thorough and balanced perspective on the issues including potential causes of the infections,” Miller said.
Bigler's widow, Theresa Bigler, alleges that Olympus had known for years that its instructions for cleaning its duodenoscopes were ineffective and had led to patient infections and death, but did not reveal that information to Virginia Mason or other healthcare providers.
In court documents, Olympus denies those allegations.
But in a document filed in state court May 11, Virginia Mason denies any fault in Bigler's death and accuses Olympus of fraud, among other allegations. Virginia Mason says Olympus hid the device's flaws and failed to tell the hospital that the company's cleaning instructions were ineffective.
“Olympus America's acts and omissions relating to their scopes have resulted in significant harm to VMMC, including, but not limited to, harm to VMMC's business reputation, loss of goodwill, and economic damages,” Virginia Mason says in the court filing.
Legal experts say it's uncommon for a provider to align with a patient in a lawsuit against a device manufacturer.
Rando Wick, a lawyer with the firm Johnson, Graffe, Keay, Moniz and Wick who is representing Virginia Mason, said the case is only the second or third such case he has seen in his 25-year career. John Gagliardi, a lawyer representing Theresa Bigler with Luvera Law Firm in Seattle, also called the situation “very unusual.”
“They buy these devices from these companies so they have a relationship, and oftentimes they're reluctant to sue these companies that make these devices,” Gagliardi said of hospitals.
Such cases may be rare in part because damages don't often rise to a level that would make them worthwhile for a hospital to get involved, said Lynn Gordon, a partner with Nixon Peabody in Chicago who chairs the firm's healthcare practice.
“This may be fairly unique in that it has both adverse-reputation and reimbursement implications for the hospital and, given the severity of cases, damages worth pursuing,” Gordon said in an e-mail.
In this case, she added, Virginia Mason may have borne a particularly large expense as a result of the outbreak because many payers won't shell out for additional care or diagnostic testing related to hospital-acquired infections.
“A perfect storm, if you will, that unites patients with providers in terms of adverse impact,” Gordon said.
John Kelly, a partner at Bass Berry & Sims in Washington, said it's not unusual in civil litigation for parties in to make cross claims against one another. But, he said, this is an unusual example of that strategy.
“You're basically playing offense and defense at the same time,” Kelly said of the hospital. “At the same time, you're going on the defensive and joining the plaintiff and saying, 'Don't point the finger at us, point the finger back at the device company because they had reason to know there was an issue with their product in terms of their ability to clean it effectively and didn't inform us in the U.S. about it.' ”
Gagliardi, the lawyer representing the patient's widow, said he doesn't intend to actually pursue any claims against Virginia Mason, although the hospital remains a defendant in the lawsuit. Since the outbreak, the hospital has spent $1 million changing the way it cleans the devices, Wick said.
“Based on what we learned from Virginia Mason, it doesn't appear they did anything wrong,” Gagliardi said.
It's possible that providers will increasingly side with patients in legal matters, particularly as payment and delivery models such as accountable care organizations take hold, said Mark Silberman, a partner at Duane Morris in Chicago.
“Hospital systems want to be seen as aligned with their patients' interests, especially when it comes to quality care,” Silberman said.
A similar outbreak tied to scopes occurred between late last year and early this year at Ronald Reagan UCLA Medical Center in Los Angeles, killing two patients. The family of one of those patient also sued Olympus in California state court, the Los Angeles Times has reported.
