Unclean Hands: How Patients Can Prevent Blatant Medical Malpractice

By SHERRY F. COLB

Wednesday, Jun. 14, 2006

A year ago, in a column for this site, I wrote about the epidemic of hospital-induced infections in the United States. At the time, approximately 103,000 hospital deaths reportedly resulted annually from the failure of medical professionals to exercise simple rules of hygiene.

Today, I want to revisit the theme and focus specifically on hand-washing. My hope is to empower readers to stand up to doctors' and nurses' refusal to wash their hands before touching patients and their loved ones.

One Hand Washes the Other: An Easy but Important Step

Many forms of medical malpractice are quite subtle and difficult for observers to detect. Medicine is not an exact science, after all, and when a patient becomes ill or dies, grieving families might easily be convinced - however mistakenly - that there was nothing anyone could have done to save their loved one.

No wonder, then, that despite talk of a malpractice litigation explosion, most victims of malpractice never even bring a lawsuit. They trust that a kind and apparently wise physician will - as the Hippocratic Oath commands - "first do no harm."

In at least one area, however, doctors have done little to earn their patients' trust. The good news is that without ever stepping into a courtroom, potential victims and their families can do something about the problem before it is too late.

The Unused Sink in the Examination Room

It is often hard for a layperson to tell whether a doctor is prescribing the best medication or recommending the most appropriate surgical procedure. There is one thing that we know our doctor should do, however, and that studies suggest she may well be neglecting: washing her hands before examining and treating her patients.

We have known since the late Nineteenth Century that germs cause disease. In a readable and frightening book called The Doctors' Plague, Dr. Sherwin B. Nuland exposes how medical arrogance led to the epidemic of childbed fever. A major cause of the epidemic was the obstetricians who delivered babies right after performing autopsies, without washing their hands in between.

Nuland describes the quest of Dr. Ignaz Semmelweis, in mid-eighteenth century Vienna, to raise consciousness about hand-washing and to remedy the deadly failure. The medical profession responded by shunning Semmelweis and continuing their lethal practices, even as the death toll rose.

To be fair, the medical profession at that point had yet to encounter the germ theory of disease. Doctors today have no such excuse.

When a doctor's or a nurse's hands come into physical contact with a sick patient, or with surfaces that have not recently been washed, they carry infectious agents to their unsuspecting next patients.

Yet many doctors and nurses - by some estimates, a majority - still fail to wash their hands between patients. And you can tell this is true because they open the door to the examining room, shake your hand, and then proceed to the work of the day without touching a bar of soap.

Would Miss Manners Criticize Her Doctor?

I am a law professor and have yet to hear myself described as a shrinking violet. Yet as an occasional patient and as the mother of two occasional patients, I often feel social pressure to stay silent as I watch medical professionals pass the sink in their examining room without a second glance. Why?

To me, and to other patients, I suspect, it feels rude to say, "Please wash your hands." In part, this is because it is so obvious that it should go without saying. At the same time, good hygiene seems so personal - we wouldn't, after all, tell a doctor to think about changing his mouthwash or deodorant.

"Wash your hands" sounds like something we might say to a child who has not yet learned about germs. Surely doctors, who have completed four years of medical school, know that they are supposed to wash their hands before treating patients. Therefore, we reason, they probably did wash their hands, and we just didn't notice, right?

Don't count on it.

When I or a family member goes to a doctor, we try hard to check in advance that the professionals we will be seeing are highly competent. When possible, we seek out positive recommendations from people in the field as well as from other patients. Still, I have never heard anyone make a point of remarking, in the course of providing information about a doctor, "He also washes his hands at the beginning of each visit." It would sound a bit ridiculous, like saying of a law professor, "She's a good teacher, and I am pretty sure she knows how to read too!"

My Own Experience: Encountering the Fallacy That Wearing Gloves Is Enough

My younger daughter, who is two years old, has had to undergo several medical procedures that involved the introduction of a catheter into her bladder. The procedure is unpleasant and makes her cry, which is difficult for her parents. Perhaps more importantly, however, the procedure is - though not surgical - one in which it is crucial not to introduce pathogens into a patient's body.

All of the instruments used are therefore sterile and disposable. This helps ensure that harmful germs do not make their way into the patient's system.

After learning last year of the shocking number of doctors and nurses who fail to wash their hands before examining patients, I made a point of watching our providers to make sure that they did. The nurse who was to insert the catheter into my daughter on one visit did not appear to be headed for the sink. I asked her, as politely as one can ask such a question, "Are you going to wash your hands?"

She looked at me in disbelief, and responded peremptorily, "I am wearing gloves."

I was prepared for this particular non-answer, because I had read that providers often rely on gloves rather than good hygiene. As an article in the American Journal of Infection Control emphasizes, however, "gloves are not a substitute for handwashing."

This is because our hands inevitably touch the outsides of surgical gloves while we are putting them on.

I told the nurse as much at the time and asked her to please wash her hands before inserting a catheter into my child. Her face was stone as she insisted, "I washed my hands before." This is, sadly, the sort of response that one expects from a toddler, not a medical professional. I responded, "Did you wash them after you saw your last patient?"

At this point in the conversation, the nurse glared at me, ripped off her gloves, dramatically pitched them into the garbage, and stomped out of the room.

My baby and I waited in the examining room for a few minutes, after which the nurse returned and grudgingly washed her hands.

For a while after that, I relaxed a bit; I observed that my pediatrician always washes her hands or uses an alcohol-based hand sanitizer before examining my children. Then, last week, I ran into the problem again. This time, it was a medical doctor - at one of New York City's most prestigious hospitals - who disappointed me. The procedure, as before, involved a urinary catheter, and the materials to be used were sterile and disposable. But the care provider in question - a radiologist - appeared ready to start without having washed her hands.

My husband asked her, much too gently, "Could you please wash your hands? We're a little overprotective, because it's our baby and she's vulnerable to infection."

The familiar response followed: "I'll be wearing gloves."

"Yes, I know," continued my husband, honoring the pretense that he was requesting something extraordinary, "but please humor us. We're concerned about our baby, and she is vulnerable, and you know, germs can get on the gloves while you're putting them on if you don't wash your hands first."

The doctor said nothing, but her eyes shot daggers as she walked over to the sink - conveniently located three feet from the examining table - and washed her hands perfunctorily under our watchful eyes. Noticing all the fuss, my two-year-old asked, "The doctor wash hands?"

"Yes," responded my husband audibly, "because she is very thoughtful."

This unearned (and inaccurate) compliment did not have the desired effect on the doctor, who had not smiled once since the unwelcome subject of hygiene had first made an appearance.

Malpractice Suits, An Uphill Battle, Come Too Late

Later in the day, when I told two of my closest friends about what had happened, they were both stunned. One of them, a law professor like me, was particularly shocked. The doctor really didn't want to wash her hands? He urged me to complain.

I intend to complain, but I wanted to share my experiences with readers as well, because even the most sophisticated consumer of medical services can find himself stymied in the face of hurried and haughty medical personnel.

The law can do only so much to address the wrongdoing. Proving causation is often extremely challenging, and few relish the prospect of suing a doctor (despite myths to the contrary that drive tort "reform" proposals).

Finally, and most importantly, a malpractice lawsuit means that the damage is already done. For the plaintiff, it is usually too late.

Therefore, no matter how timid you might feel when the doctor walks into the room where you have been patiently waiting, remember that he is there to help you. If you do not see your doctor wash his hands, then be sure to say something. You then make it clear that even if the doctors have forgotten the germ theory of disease that is the foundation of modern medicine, you and your loved ones have not.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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