Lawsuits mount in Children’s Hospital fungal outbreak _lowres

File photo provided by LSUHC.edu -- The Children's Hospital of New Orleans

On Sept. 10, 2008, a month after the death of their newborn, John and Tina Scanlon walked into Children’s Hospital to learn the results of the autopsy.

Tiny Caroline, who was born premature but seemed to have gained strength in the weeks after her birth, had suffered severe brain hemorrhages and a “fungal meningoencephalitis” from an infection she must have caught in her few short weeks at home, perhaps from her older sister, the Scanlons said they were told.

Despite the wrenching news, the St. Charles Parish couple appreciated the care Caroline had received so much that they joined the ranks of Children’s Hospital boosters. They raised money for it, donated to it themselves and stayed in touch with hospital staffers.

“They had become a part of the so-called Children’s ‘family,’ ” according to a lawsuit the couple filed last month.

Everything changed on April 15, when the Scanlons read a news account of an outbreak in 2008 and 2009 of mucormycosis, a rare, often deadly fungal infection. In their lawsuit, filed May 15, the couple accuses the hospital of a shameless cover-up after Caroline died at 32 days old.

The hospital falsely led them to believe that “Caroline’s death unequivocally and without qualification resulted from contamination while under their care, from their home and from their family,” the lawsuit states.

They are among the plaintiffs in five separate lawsuits related to the outbreak, three of them filed since mid-April, when a report in a medical journal by U.S. Centers for Disease Control and Prevention researchers forced the hospital to acknowledge five deaths from the spread of the fungus, linked to contaminated bed linens.

Although admitting lapses in disease surveillance with the outbreak, a top hospital official refused to concede mistakes in keeping the rash of fungal deaths quiet for five years.

Dr. John Heaton, the hospital’s associate medical director for patient quality, said the hospital “dropped the ball,” however, in failing to alert the families of the children who died in the outbreak.

“We failed to do what we should have done, pure and simple,” Heaton said a day after the outbreak was first reported in local news media.

The first two lawsuits were filed in 2010 and 2011 by the families of Zachary Tyler, 13, and Tierica Jackson, 10, who was suffering from a heart defect when hospital staffers noticed lesions on her back and traced it to mucormycosis.

Although hospital officials have not confirmed it, the lawsuits involving Zachary and Tierica are among three that appear to correlate with some of the five hospital-related deaths that the CDC cited, but did not name, in the journal article.

The third, Tyrel Gee, was a premature baby, born at 26 weeks gestation, who died in August 2008, just days after a lesion appeared on his groin and spread “extremely rapidly,” according to a suit his parents, Cassandra Gee and Terrel Jones, filed April 21.

According to the lawsuit, the parents “were told by the physicians and healthcare providers at Children’s Hospital that Tyrel died as a result of sepsis.”

A contributory cause?

Hospital officials maintain that all five deaths were the result of other primary causes. Heaton said the fungal infection, which occurs only in people with extremely weak immune systems, was deemed to be a “contributory” cause of the five deaths by a team of doctors that reviews hospital deaths.

As a result, a requirement under hospital policy to conduct a “root-cause analysis” of all infections that originate in the hospital and “result in death or major permanent loss” didn’t apply, Heaton said.

But among the plaintiffs, Tierica’s mother, Shennetta Jackson, argues in her lawsuit that the hospital ignored its own policy by relying on the Mortality Review Committee’s diagnosis instead of conducting a more thorough review for “sentinel events.” Zachary Tyler’s parents make a similar claim.

In a deposition, the director of the hospital’s infection control program, Dr. Renee Klos, testified that no one asked her to pursue a deeper inquiry after the deaths of two patients who had contracted the fungal infection.

With two other patient deaths in early 2009, Klos said, there were no “commonalities that would have led us anywhere else to investigate at that time.”

“We did look into it,” she said. “There was nothing to tie it back. There was no finding in terms of any links.”

Once the hospital did put two and two together, in the summer of 2009, it moved quickly, alerting the state and CDC epidemiologists, officials said.

Dr. Raoult Ratard, the state epidemiologist, praised the hospital for ferreting out the rash of fungal infections and acting quickly once it did.

Tom Chiller, a medical epidemiologist for the CDC who was part of the investigation team, said it was difficult to blame the hospital for failing to identify the rash of infections early on.

Negligence claims

But the delay could prove legally troublesome for some of the plaintiffs. State law sets a three-year limit on medical malpractice claims, regardless of when patients or their families discover an error. Many of the plaintiffs have decided to file negligence claims, arguing in some cases that the infection had nothing to do with health care.

“I’m not alleging the fault of any physicians or nurses,” said Carey Wicker, an attorney for Tyrel Gee’s parents. “My position is that this is essentially a housekeeping function.”

Indeed, the five lawsuits name several other defendants, including linen supplier TLC Services Inc., along with Glen Cobb, then the hospital’s director of housekeeping services and hazardous waste, and Aramark Management Services, which employed Cobb.

TLC, for its part, has filed a cross-complaint in at least one lawsuit, arguing that the hospital “breached both explicit and implicit contracts with TLC Services when it allowed linens supplied by TLC Services to be used by immuno-compromised patients.”

In a deposition, TLC co-owner Charles LeBourgeois said he was shocked to learn how the linens were being handled at the hospital, finding them mixed in with trash in carts.

The report by CDC researchers did not find a clear source for the linens’ contamination, but it speculated that it “occurred at the laundry facility or during delivery, after the linen had been washed and dried.”

An attorneys for TLC did not return a message Friday. An Aramark spokesman declined to comment on details of the company’s contract with the hospital or its relationship with Cobb.

“Our deepest sympathies are with the families involved in this tragedy,” the company said in a statement. “Out of respect for the privacy of the families, and because there is pending litigation, it is not appropriate for us to comment further.”

Through a spokeswoman, the hospital also did not respond Friday to several questions about the deaths.

Taking swift action

Previously, hospital officials have said Children’s took swift action when officials discovered the outbreak and suspected it emanated from contaminated linens. It changed its linen suppliers and the location where the linens were offloaded from trucks, disinfected storage areas and began sterilizing linens for high-risk patients.

But Heaton also said the hospital could have connected the dots earlier if it had taken a broader view of death cases. He said the hospital has started looking at a wider set of cases to avoid what he called “tunnel vision.”

In Tierica Jackson’s case, the hospital fought to withhold internal documents on the fungal infection cases, including a timeline for the outbreak, a study of infection rates, minutes of meetings of its infection control committee and the charts of other patients, court records show.

The hospital has argued that those documents are privileged under federal laws about patients’ rights and other statutes aimed at fostering “the ability of hospitals to regulate themselves unhindered by outside scrutiny and unconcerned about the possible liability ramifications their discussions may bring about.”

Civil District Court Judge Kern Reese ordered the hospital to turn over some of the documents.

The lawsuits have been assigned to different judges of Civil District Court. In the latest three cases, the judges have granted the hospital, TLC and other defendants more time to respond.

A living plaintiff

One of the newest plaintiffs is alive.

Demario J. Griffin, a young football player from St. John the Baptist Parish, was suffering complications from surgery for a blown-out left knee when he arrived at Children’s in May 2009. He suffered more problems and came back in October.

According to the lawsuit, Griffin underwent a harrowing series of failed procedures before he recovered, although he still walks with a “drop foot,” his lawyer said. Griffin now blames his arduous healing process on the same fungal infection that was deadly to the five younger patients, and he claims Children’s hid it from him.

After reading about the outbreak in April, he also is suing TLC, Aramark and the University of Miami Tissue Bank, which supplied a bad graft.

“This was the first time petitioner had any knowledge whatsoever that he had come into contact with the dreaded fungus and that this fungus played a substantial role in his problems,” the lawsuit states.

Griffin’s attorney, Robert Faucheux Jr., said he is awaiting an expert’s review of medical records.

“He did contract some type of infection,” Faucheux said. “I’d prefer to wait (to comment) until we’ve gotten a definitive response on the findings of the medicals.”

Help to litigants?

The CDC report, published in the Pediatric Infectious Disease Journal, helped alert the community, and former Children’s Hospital patients, to the 5-year-old outbreak. Whether it will help the litigants in the five cases remains uncertain.

Caroline Scanlon wasn’t among the five young patients who were deemed to have died in the outbreak. A 2011 report by CDC researchers appears to describe her case — based on her age, condition and Aug. 1, 2008, admission date — as a “community-associated” incidence of the fungal infection, meaning she didn’t contract it inside the hospital.

The report added that “the accuracy of this definition is uncertain due to the lack of knowledge about the true incubation period of mucormycosis.”

Reached by phone, Tina Scanlon declined to discuss the case, referring a reporter to her attorney, who did not return a message last week.

Caroline’s autopsy report found that her “susceptibility to the fungal infection is probably related to” other medical problems she suffered.

Less than a month before she was pronounced dead on Aug. 12, 2008, Caroline was home, “gaining weight and taking formula,” the lawsuit states. But a troubling blood test landed her back at Children’s on Aug. 1. Four days later, she was in the pediatric ICU, and “her condition deteriorated from there.”

Caroline went into respiratory arrest Aug. 11 and died a day later. The fungal infection was discovered only after her death.

Among other claims, her parents seek damages under a 1990 Louisiana Supreme Court decision that granted certain “bystanders” the right to sue over “severe and debilitating” mental anguish from witnessing a loved one suffer.

Follow John Simerman on Twitter, @johnsimerman.