Lawyers: No recourse for DMC dirty instrument patients

Joel Kurth
The Detroit News
Ervice Gregory of Oak Park says surgery at DMC in 2011 for scar removal has left her ill and in pain, and she believes dirty instruments may be to blame.

Ervice Gregory walked into Harper University Hospital five years ago for outpatient surgery for scar removal. She hasn’t been the same since she walked out.

Within days, she developed infections near her sutures that wouldn’t heal. The Oak Park woman has been ill since, undergoing nine operations to fix the infections and scars that tests pinpointed to a rare, heat-resistant bacteria. She said she can’t work, must stay out of the sun and is in constant pain.

“I didn’t have any problems prior to surgery. I was a well, healthy 40-year-old woman,” said Gregory, 45, a former nail technician and mother of three. “I am no longer that. ... I don’t want to say I am grossly deformed. But I am deformed.”

They have no direct evidence, but the timing, nature and location of her injuries lead Gregory and her attorney, Michael H. Fortner, to believe she came into contact with dirty surgical instruments. The cost and difficulty of bringing medical malpractice cases in Michigan, though, may make it difficult to prove, leaving little recourse for those who feel they were victimized by problems with sterilization.

Among other hurdles, Gregory said administrators at Harper and Detroit Medical Center have denied 10 requests to access her own medical records. In Michigan, state law allows hospitals to keep confidential internal reports about patients’ care.

“They have put up so many roadblocks and barriers to bringing medical negligence cases, there’s almost economic immunity to doctors and hospitals,” said Frank Aiello, a Southfield malpractice attorney who is not involved in the Gregory case.

“You can have dirty instruments used on you, be on an IV for six weeks with an infection and have a doctor stand up in court and say, ‘Yes, we operated with unsterile instruments’ and it still wouldn’t be economically feasible to bring a case.”

The DMC declined comment, citing federal patient privacy laws. Hospital officials, though, have said they’ve found no incidents of infection related to dirty instruments. They issued a statement saying “quality and patient safety are a top priority at the DMC with all levels of the organization working to ensure the expectations of our patients, physicians and clinical teams are met.”

The issue is coming to light amid a state and federal investigation of the DMC following articles in The Detroit News that documented a decade of problems with dirty and missing instruments. The News found that improperly sterilized tools complicated operations from brain surgeries to spinal fusions, kept patients under anesthesia unnecessarily and led to cancellations of dozens of operations.

DMC officials have said the problem stems from the Central Sterile Processing Department located in the basement of Detroit Receiving Hospital in its Midtown campus. Since 2010, it has served Detroit Receiving, Harper, Children’s Hospital of Michigan, Hutzel Women’s and DMC Heart hospitals.

Dirty, missing instruments plague DMC surgeries

The sterile processing facility was inspected in late August by regulators from the Michigan Department of Licensing and Regulatory Affairs (LARA) and federal Centers for Medicare and Medicaid Services. Jason Moon, spokesman for LARA, said the investigation is focused on the Midtown campus but “that does not prohibit our ability to expand its scope if we feel it is necessary.”

DMC officials have said they’ve hired a private firm to oversee management of sterilization. In a Sept. 1 email to DMC physicians, chief medical officer Suzanne White wrote the DMC has invested $6 million in sterile processing since 2011 and infection rates are improving.

The DMC has not released specific infection rates to back up the assertion and Michigan law does not require hospitals to share such data.

“We are deeply committed to improving the performance of our Central Sterilization Processing (CSP) unit, as well as regaining the community’s confidence,” White wrote.

‘No recourse’

More than a dozen DMC patients contacted The News since the investigation, questioning whether their care was compromised by dirty instruments. Lawyers said the hospital system is unlikely to face a wave of litigation because of the reports, which were based on 200 pages of internal records and emails from doctors complaining about unsafe conditions.

“I can’t see it,” said Norm Tucker, a 30-year medical malpractice attorney with the Southfield firm of Sommers Schwartz.


“The biggest reason is you can’t get the information. ... Sometimes people who have been injured from negligent care just have no recourse.”

He said potential victims face huge hurdles. Some would never know if they came into contact with dirty instruments because Michigan law doesn’t require doctors to inform patients about such adverse events. And the high costs of litigation — and caps on damages — make it pointless to pursue anything other than the most debilitating injuries, lawyers said.

Reforms passed in 1994 imposed caps on non-economic damages or so-called pain and suffering. Tied to inflation, the cap on most injuries is $438,800. The highest cap — for rare cases that cause brain damage, sterility or paralysis — is $783,500. The caps are in addition to payments for lost wages, future earnings and medical bills.

The laws also require plaintiffs to file affidavits from medical experts for every specialty involved in the suit, so the cost of witnesses alone can add up to $100,000 even before trial, Aiello said.

“The playing field isn’t even close to being level,” Aiello said.

Unless damages are at least $400,000, most attorneys “won’t even look at a case,” said Peter Kuhnmuench, executive director of the Michigan Insurance Institute, a Lansing-based advocacy group.

He said the laws have worked because they’ve reduced frivolous lawsuits.

In the late 1980s, a few years before the reforms, lawyers filed about 3,600 malpractice cases in Michigan. Last year, there were 696, according to state court records. Records on average payouts vary widely, but the National Practitioner Data Bank, a federal agency that tracks malpractice payments, lists Michigan in the bottom third of per-capita payouts.

DMC, managers trade blame over dirty instruments

‘Miracle she’s alive’

Gregory still cries when she thinks about what she’s lost.

When she first went to Harper, she was expecting a simple surgery to fix scars from an earlier breast reduction. Her 40th birthday would be in a few weeks. She was planning a huge party.

It was canceled. She spent the day back in Harper, the first of several hospitalizations as the wounds reopened along her scar line. Over the years, she’s been on a heavy antibiotic, vancomycin, that further deteriorated her health. The wounds and pain returned, she said.

Her husband, Daryl Gregory, said he’s had to cut back his hours at Ford Motor Co. to provide for her care. Her children learned to change her IV.

“I’ve lost a lot,” Ervice Gregory said. “Before all this, I used to run 2 miles. Some days now, I can’t walk down the street.”

The plastic surgeon who performed the initial surgery, Lauran Bryan, left the DMC in December. The state suspended her license in March after “admissions that controlled substances were prescribed for no legitimate purpose,” according to a statement from LARA.

In the past few weeks, Gregory has retained an attorney, Fortner, who plans to sue. He said he believes she was treated with dirty tools because her infections are near the suture line, emerged days after surgery and were caused by a bacteria that could survive the instrument cleaning process, which reaches temperatures of 270 degrees.

“They make it nearly impossible to sue, but the whole situation is a miracle. It’s a miracle she’s alive,” said Fortner of the Cochran Firm of Michigan.

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