Hospital-acquired infection claims in Georgia medical malpractice

A hospital-acquired infection is not proof of negligence by itself. A Georgia claim needs an expert to identify a specific failure in care and to connect that failure to this patient’s infection in terms stronger than possibility. That second step is where these cases get hard, because a patient in a hospital can have several possible sources of infection and risk factors of their own. The evidence has to point to one breach and away from the alternatives.

Kinds of infection and what each claim looks at

Infection	The care questions it raises
Surgical site infection	Preparation, antibiotic timing, technique, instruments, wound care
Bloodstream infection from a central line	Insertion, maintenance, whether the line was still needed
Urinary infection from a catheter	Whether the catheter was needed, how it was kept, when it came out
Pneumonia on a ventilator	Respiratory care and ventilator practices
Clostridioides difficile	Antibiotic choice and duration, isolation, cleaning
Resistant organisms such as MRSA	Transmission, isolation, unit outbreak response

The right-hand column names questions for an expert. It does not say what the standard required in any case.

Where the standards come from

Georgia’s measure is the care ordinarily employed by the profession under like circumstances, as stated in Johnson v. Riverdale Anesthesia Associates. Written standards can inform an expert’s opinion but do not replace it.

One federal source is worth reading directly. 42 C.F.R. § 482.42, a Medicare condition of participation, says a hospital “must have active hospital-wide programs for the surveillance, prevention, and control of HAIs and other infectious diseases”. It also requires systems for tracking those activities. It is written as a condition of Medicare participation, so a violation does not by itself establish malpractice for one patient’s infection. Its value is that it identifies what records and programs should exist.

Federal agency guidelines and accreditation standards can play a similar role. Each has to be tied to a date and a setting, because a guideline can change and the standard is measured at the time of care.

Who the claim runs against

Under O.C.G.A. § 9-3-70(2), the care or service of a hospital and its employees is within the malpractice definition. The hospital can answer for an employee under § 51-2-2 and for its own failures, such as an infection control program that did not work. A surgeon may be a separate defendant, and whether the surgeon is an employee matters, as independent contractor physicians explains. Each defendant in a different profession may need a separate expert. A contaminated device or implant could add a product claim, which has separate rules on defective medical devices. A contractor for cleaning or sterilization could also be named if the evidence reaches it.

Proving this infection came from this breach

Zwiren v. Thompson sets the probability requirement. In this type of case, several kinds of evidence can support an expert’s opinion, and none is enough by itself.

Evidence	What it can show	Its limit
Lab match with other patients' organisms	A shared source on a unit	Requires testing that may not have been done, and does not name the failure
A documented lapse	A specific breach	Still needs a link to this infection
Facility infection rates compared with benchmarks	Whether the facility had a problem	A high rate does not prove this patient's case
Timing and organism	Fit with the procedure or device	A long stay can add other exposures

A positive culture raises its own question. The CDC says people who carry MRSA without signs of infection are colonized and can spread the bacteria to others. So the expert has to separate an organism the patient already carried from an infection this stay caused.

The defense may point to the patient’s own risks, such as diabetes or immune suppression. A patient’s vulnerability does not excuse a breach, but the expert still has to address what would probably have happened without it. See pre-existing conditions and causation challenges.

Delay in recognizing the infection can be a separate theory. Even if an infection could not have been prevented, a claim may focus on whether it was recognized and treated when it should have been, and on what earlier treatment would probably have changed. That theory has its own causation question, addressed in delayed diagnosis claims.

Getting the hospital’s information

For example, imagine a patient learns that others on the same unit had the same organism. The information that would prove a shared source may sit with the hospital’s infection control staff. Whether the patient can get it turns partly on Georgia’s peer review statutes.

Section 31-7-133(a) keeps the proceedings and records of a review organization confidential in civil actions, and the definition of peer review in § 31-7-131 reaches evaluation of quality and efficiency of services. Section 31-7-133(a) also says that “information, documents, or records otherwise available from original sources” are not immune merely because a committee saw them. So the patient’s own culture reports, lab records, and chart stay available. Whether an infection surveillance log is a peer review record or an ordinary business record can be disputed, and the hospital’s role in keeping it matters. Counsel would need to read current decisions on that question for the document at issue.

Requests to start with:

• culture reports and sensitivity panels;
• operative and anesthesia records, including antibiotic timing;
• line and catheter insertion and maintenance records;
• nursing notes and wound care notes;
• discharge instructions and readmission records.

Timing

The two-year period under § 9-3-71(a) runs from the injury, and § 9-3-71(b) sets a five-year outer limit from the act. An infection may appear days or weeks after the care. Georgia does not have a general discovery rule, and the “new injury” idea in Amu v. Barnes is narrow, so the earliest symptom date needs careful review. See limitation and repose.

If the patient dies

A death from infection can support a wrongful death claim under § 51-4-2 and a separate estate claim. Wrongful death from medical malpractice covers who may bring each one. The expert must connect the infection to the death when other illnesses were also present.

The threshold test

An infection after hospital care raises a question and gives no answer. Before a claim is worth pursuing, an expert should be able to name the specific lapse, say how the record shows it, and explain why the infection would probably not have occurred or would have been far less harmful without it.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-70, 9-3-71, 31-7-131, 31-7-133, 51-2-2, 51-4-2
• 42 C.F.R. § 482.42
• CDC, clinical overview of MRSA
• Johnson v. Riverdale Anesthesia Associates, 275 Ga. 240
• Zwiren v. Thompson, 276 Ga. 498

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.