Healthcare-associated or nosocomial infections are infections that patients pick up at hospital, in a care home or during ambulatory care (for example in their own home).
According to Sciensano, an average of 6% of patients in European hospitals develop an HCAI. In Belgium, the figure is higher: 7%, representing around 110,000 patients per year. The most common infections are:
- Wound infections after surgery
- Urinary tract infections after catheterisation
- Pneumonia after ventilation
- Bloodstream infections due to long-term catheter use
HCAIs also occur in care homes (3.5% of residents), but this amounts to 170,000 cases per year due to the large number of residents.
Not always. Research by the Belgian Healthcare Knowledge Centre (KCE, 2008) shows that 70% of HCAIs can’t be prevented, even under optimal hygiene conditions. This figure is an important factor in the legal assessment of liability.
From a legal viewpoint, preventing HCAIs is considered to be a best efforts obligation. The hospital must take all reasonable measures, but cannot guarantee that no infection will be contracted.
Why is this distinction important?
- When there is an obligation of result, a party undertakes to achieve a specific outcome. If that outcome is not achieved, it is considered to be in breach of its obligation. Every HCAI would therefore trigger the care institution’s liability.
- With a best efforts obligation, on the other hand, a party undertakes to make every reasonable effort to achieve a goal, without any guarantee regarding the outcome. The patient must prove that the care institution or provider failed to take sufficient precautions to prevent infection.
What does case law say?
Case law confirms that hospitals cannot guarantee an infection-free environment. HCAIs are regarded as a therapeutic risk – in other words, there is a best efforts obligation. The Court of Cassation ruled to that effect in 2019.
This was confirmed in November 2024. A patient had contracted a hospital infection with staphylococcus aureus
during an operation.
The Court of Cassation confirmed its previous ruling that the obligation concerned was one of best efforts rather than results. The Court noted that 70% of these infections are unavoidable, and ruled as follows:
‘Nosocomial infections are contracted solely because the patient receives care in a medical environment. This entails risks, including that of contracting a new infection due to the presence of germs, bacteria and other micro-organisms inherent to such an environment, irrespective of the preventive measures taken. They are therefore therapeutic risks.’
Care institutions must show that they have taken all precautionary measures, but cannot guarantee that an infection will never occur. There is an important caveat here, however: in some cases, an obligation of results does apply, such as for the use of safe and sterile equipment.
There are a number of preventive measures that a care institution can take, such as:
- Ensuring appropriate hygiene procedures and strict compliance with them;
- Thorough documentation (Hospital Hygiene Committee reports, internal audits, preventive actions, etc.);
- Adapting procedures in response to new guidelines or warnings.
Information about such measures will be important in assessing whether the best efforts obligation has been met. Inadequate reporting or missing documentation may lead to a breach being found. Failure to follow internal guidelines also puts a care institution or provider at risk. In a case where a disinfection procedure was left unchanged despite clear warnings from the Hospital Hygiene Committee, the hospital was found to be in breach of its obligation.
It is clear from both case law and recommendations from the Medical Accidents Fund (FMO) that the harm caused by infections is sometimes considered to be unforeseeable, but that in other cases there may be a breach of obligation. The assessment is therefore always made on a case-by-case basis.
HCAIs cannot always be avoided. Prevention, accurate reporting and compliance with internal procedures are essential, not only for patient safety but to limit liability risks.
If you face a situation involving an HCAI and a potential liability dispute, it is important to get your civil and/or professional liability insurer involved in good time. It can defend your interests and pay out in cases where liability is found, within the terms of the policy. Our claims managers at Vanbreda are ready to assist you in this context.
