Managing Our Microbial Mark: What We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores

Ann Marie Marciarille

doi:10.1177/0098858816658274

Managing Our Microbial Mark

What We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores

Published online by Cambridge University Press: 06 January 2021

Ann Marie Marciarille

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Ann Marie Marciarille*: Affiliation:
University of Missouri at Kansas City
*: Email: [email protected]

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Abstract

The narrative of Ebola's arrival in the United States has been overwhelmed by our fear of a West African-style epidemic. The real story of Ebola's arrival is about our healthcare system's failure to identify, treat, and contain healthcare associated infections. Having long been willfully ignorant of the path of fatal infectious diseases through our healthcare facilities, this paper considers why our reimbursement and quality reporting systems made it easy for this to be so. West Africa's challenges in controlling Ebola resonate with our own struggles to standardize, centralize, and enforce infection control procedures in American healthcare facilities.

Type: Articles
Information: American Journal of Law & Medicine , Volume 42 , Issue 2-3: Global Infectious Diseases: New Challenges and Solutions , May 2016 , pp. 393 - 428

DOI: https://doi.org/10.1177/0098858816658274 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 2016

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References

1 See World Health Org., Ebola Situation Report – 21 October 2015 (2016), http://apps.who.int/ebola/current-situation/ebola-situation-report-21-october-2015 [http://perma.cc/NHH6-YU4P] [hereinafter Ebola Situation Report].

2 Cf. Tolu Ogunlesi, The Truth About Ebola: Battle Starts with Accurate Information, Guardian (Aug. 7, 2014, 7:55 AM), http://www.theguardian.com/world/2014/aug/07/truth-about-ebola-accurate-information [http://perma.cc/HP87-CWEA] (discussing confusion regarding the incidence of Ebola in 2014).

3 See Laura Kurtzman, Understanding Ebola, UCSF News Center (Oct. 23, 2014), http://www.ucsf.edu/news/2014/10/120016/understanding-ebola [http://perma.cc/Y3RW-UFUD].

4 Id. (observing that at Emory University Hospital, for example, proper use of personal protective equipment prevented secondary Ebola infections).

5 See Ebola Situation Report, supra note 1.

6 See Public Health Experts Urge U.S. Hospitals To Be Prepared as Ebola Outbreak Accelerates, 10 Emergency Dep’t Mgmt. 109 (2014) [hereinafter Hospital Preparation] (examining whether standard infection control practices are strong enough to manage the Ebola outbreak).

7 Ebola’s arrival in the United States offers an interesting lens through which to view healthcare associated infections but other pandemics also would offer further perspective.

8 See World Health Org., Essential Health Services Situation Reports: Background (2016), http://www.who.int/csr/disease/ebola/health-systems-recovery/ehs-background/en/ [http://perma.cc/ELU8-ZPGC] (explaining that the outbreak of Ebola in West Africa “had a devastating effect” on the health systems in West African countries due in part to the disruption of “vital ongoing programmes”).

9 See Laura Barton, Hand Sanitisers: Saved by the Gel?, Guardian (May 13, 2012, 3:01 PM), http://www.theguardian.com/society/2012/may/13/do-we-really-need-hand-sanitisers [http://perma.cc/2XBT-SMKV] (outlining popular beliefs giving rise to the surge in hand sanitizer use).

10 Alana Semuels, Building Better Nursing Homes, Atlantic (Apr. 21, 2015), http://www.theatlantic.com/business/archive/2015/04/a-better-nursing-home-exists/390936/ [http://perma.cc/B5JW-NJQZ] (“Nursing homes have been run the same way for decades ….”); see also Beth Kutscher, Outpatient Care Takes the Inside Track, Modern Healthcare (Aug. 4, 2012), http://www.modernhealthcare.com/article/20120804/MAGAZINE/308049929 [http://perma.cc/S9C9-66KE] (discussing various changes needed in the the acute-care realm).

11 See CDC, When Caring for Patients Under Investigation (PUIs) or Patients with Confirmed Ebola Virus Disease (EVD), CDC.Gov (Dec. 29, 2015), http://www.cdc.gov/vhf/ebola/healthcare-us/evaluating-patients/think-ebola.html [http://perma.cc/NV5Q-BCCZ] (outlining procedures to help healthcare workers recognize and care for Ebola patients); see also Hospital Preparation, supra note 6 (suggesting ways for hospitals to prepare for and treat Ebola).

12 See CDC, Healthcare-Associated Infections, CDC.Gov (Mar. 2, 2016), http://www.cdc.gov/hai/surveillance/index.html [http://perma.cc/R7WP-5H8S] (providing information about the incidence of various healthcare-associated infections).

13 See id.

14 I made this observation in a talk on healthcare quality at the University of Toledo School of Law’s joint medical-legal conference (“Scalpel to Gavel”) in 2014. It provoked audible, if uneasy, laughter from a healthcare provider-heavy crowd.

15 See CDC, Why Ebola is Not Likely to Become Airborne, CDC.Gov (Jan. 12, 2016), http://www.cdc.gov/vhf/ebola/pdf/infections-spread-by-air-or-droplets.pdf [http://perma.cc/K8XE-NWDZ].

16 See, e.g., Valerie Richardson, CDC Chief Tries to Ease Fears of Ebola in the U.S.: ‘We Can Stop it from Spreading’, Wash. Times (Aug. 3, 2014), http://www.washingtontimes.com/news/2014/aug/3/ebola-outbreak-highly-unlikely-us-cdc/?page=all [http://perma.cc/E23Q-DM29].

17 See Hospital Preparation, supra note 6, at 109.

18 Elizabeth A. Harris, Among New York Subway’s Millions of Riders, a Study Finds Many Mystery Microbes, N.Y. Times (Feb. 5, 2015), http://www.nytimes.com/2015/02/06/nyregion/among-the-new-york-city-subways-millions-of-riders-a-study-finds-many-mystery-microbes.html.

19 Linking Quality to Payment, Medicare.Gov, http://www.medicare.gov/hospitalcompare/linking-quality-to-payment.html [http://perma.cc/SY7K-9ZHH] (“The Affordable Care Act authorizes Medicare to reduce payments to acute care hospitals with excess readmissions” resulting from factors such as “[c]omplications from treatments gotten during a hospital stay ….”).

20 See, e.g., Ebola in the U.S.: What You Need to Know Now, CBS News (Oct. 1, 2014 3:20 PM), http://www.cbsnews.com/news/ebola-virus-in-us-what-you-need-to-know-now/ [http://perma.cc/GCZ7-MECN].

21 See Donald G. McNeil, Jr., Using a Tactic Unseen in a Century, Countries Cordon Off Ebola-Racked Areas, N.Y. Times (Aug. 12, 2014), http://www.nytimes.com/2014/08/13/science/using-a-tactic-unseen-in-a-century-countries-cordon-off-ebola-racked-areas.html?_r=0.

22 CDC, CDC and Texas Health Department Confirm First Ebola Case Diagnosed in the U.S., CDC.Gov (Sep. 30, 2014), http://www.cdc.gov/media/releases/2014/s930-ebola-confirmed-case.html [http://perma.cc/3CUY-J5LV].

23 Elizabeth Renzetti, Remember the U.S. Ebola Crisis? The Only Epidemic was Fear-Mongering, Globe and Mail (Feb. 27, 2015, 7:39 PM), http://www.theglobeandmail.com/globe-debate/remember-north-americas-ebola-crisis-the-only-epidemic-was-fear-mongering/article23236339/ [http://perma.cc/JQ2L-J8KV]; see also Sabriya Rice, First U.S. MERS Patient May be Released Soon, Health Officials Say, Modern Healthcare (May 5, 2014), http://www.modernhealthcare.com/article/20140505/NEWS/305059931 [http://perma.cc/555S-M56S].

24 CDC, Hospital Utilization (in non-Federal short-stay hospitals), CDC.Gov (Feb. 22, 2016), http://www.cdc.gov/nchs/fastats/hospital.htm [http://perma.cc/7BMV-7CAZ].

25 Mike Bray & Daniel S. Chertow, Epidemiology and Pathogenesis of Ebola Virus Disease (Jan. 21, 2016), http://www.uptodate.com/contents/epidemiology-and-pathogenesis-of-ebola-virus-disease [http://perma.cc/U5NQ-PJF9] (noting that Ebola is suspected to have first arrived in the U.S. as long ago as the 1980’s in a population of imported monkeys); see generally, Michiko Kakutani, A Visit to the Biohazard Battleground, N.Y. Times (Sept. 30, 1994), http://www.nytimes.com/1994/09/30/books/books-of-the-times-a-visit-to-the-biohazard-battleground.html (reviewing Richard Preston’s 1994 novel The Hot Zone, including one section about a suspected Ebola outbreak from a group of lab monkeys that was reported to have taken an all-out effort by the U.S. Army Medical Research Institute of Infectious Diseases to halt).

26 The fact that Ebola has arrived in wholesale numbers in West Africa was, at a distance, concerning but not as fully compelling as Ebola’s arrival on our shores. Compare Madlen Davies, Ebola in Sierra Leone is ‘Spreading Nine Times Faster than Two Months ago’, Campaigners Warn, Daily Mail (Nov. 3, 2014, 6:49 PM), http://www.dailymail.co.uk/health/article-2819090/Ebola-Sierra-Leone-spreading-nine-times-faster-two-months-ago-campaigners-warn.html [http://perma.cc/F6YZ-DZF6] (describing the widespread incidence of Ebola in Sierra Leone) with Tara C. Smith, America’s Ebola Panic, Slate (Oct. 6, 2015 8:00 PM), http://www.slate.com/articles/health_and_science/medical_examiner/2015/10/ebola_panic_anniversary_predictions_of_a_u_s_epidemic_didn_t_come_true.html [http://perma.cc/E3ST-BNVX] (describing “Fearbola in the United States—the out-of-proportion panic at the possibility of Ebola cases in this country”).

27 Natalie Angier, Ebola and the Vast Viral Universe, N.Y. Times (Oct. 27, 2014), http://www.nytimes.com/2014/10/28/science/ebola-and-the-vast-viral-universe.html.

28 CDC, About Ebola Virus Disease, CDC.Gov (Feb. 18, 2016), http://www.cdc.gov/vhf/ebola/about.html [http://perma.cc/VR3V-FKUE].

29 Judy Stone, Why Ebola is a Wake Up for Infection Control, Scientific American (Oct. 23, 2014), http://blogs.scientificamerican.com/molecules-to-medicine/why-ebola-is-a-wake-up-for-infection-control/ [http://perma.cc/D5GM-7PJV].

30 See Tom Fontaine, et al., CDC's Misinformation Spreads Faster than Ebola Virus, TribLIVE (Oct. 25, 2014,10:20 PM), http://triblive.com/news/editorspicks/6997782-74/ebola-cdc-health#axzz3nA7rnECm [http://perma.cc/4VHM-WLV4].

31 See Hayden, Erika Check, The Ebola Questions, 514 Nature 554, 556 (2014)Google Scholar.

32 See Healthcare-Associated Infections, supra note 12. This also includes fear of loosely reported outbreaks of mucrormycosis (a flesh-eating fungal infection) as described in Ian Urbina & Sheri Fink, A Deadly Fungus and Questions at a Hospital, N.Y. Times, (Apr. 28, 2014), http://www.nytimes.com/2014/04/29/us/a-deadly-fungus-and-questions-at-a-hospital.html.

33 See Healthcare-Associated Infections, supra note 12.

34 Denise Grady, Ebola Is Diagnosed in Texas, First Case Found in the U.S., N.Y. Times (Sept. 30, 2014), http://www.nytimes.com/2014/10/01/health/airline-passenger-with-ebola-is-under-treatment-in-dallas.html.

35 Compare Faith Karimi, From Guinea to the U.S.: Timeline of First Ebola patient in New York City, CNN (Oct. 25, 2014), http://www.cnn.com/2014/10/24/health/new-york-ebola-timeline/ [http://perma.cc/4XAM-MTF7] (describing how the infection of two nurses who cared for Thomas Duncan in Dallas “rais[ed] concerns about the nation’s ability in Dallas to deal with an outbreak”) with Steven Ross Johnson, Do the CDC’s Ebola Precautions for U.S. Hospitals Go Far Enough?, Modern Healthcare (Aug. 21, 2014), http://www.modernhealthcare.com/article/20140821/NEWS/308219947 [http://perma.cc/8VZB-28DX] (“‘What’s needed to fight Ebola is not fancy equipment,’ [CDC Director Dr. Tom Frieden] said in a message posted during a Twitter chat. ‘What’s needed is standard infection control, rigorously applied.’”).

36 Hayden, supra note 31, at 557.

37 Anemona Hartocollis & Nate Schweber, Bellevue Employees Face Ebola at Work, and Stigma of It Everywhere, N.Y. Times (Oct. 29, 2014), http://www.nytimes.com/2014/10/30/nyregion/bellevue-workers-worn-out-from-treating-ebola-patient-face-stigma-outside-hospital.html?_r=0.

38 See Drazen, Jeffrey M. et al., Ebola and Quarantine, 371 N. Eng. J. Med. 2029 (2014)Google Scholar (arguing against quarantining healthcare workers who treat and control Ebola).

39 See Ebola Characteristics and Comparisons to Other Infectious Diseases, Kaiser Family Found. (2016), http://kff.org/infographic/ebola-characteristics-and-comparisons-to-other-infectious-diseases [http://perma.cc/M5VY-R8PQ].

40 See Enrique Chaves, Clinical Professor, University of Kansas, Lecture at the University of Missouri- Kansas City: American Medicine and the Panama Canal: Miasmas, Mosquitoes, and Malaria (Dec. 4, 2014) (recording available at http://livestream.com/lindahall/medicine). Yellow Fever, also a hemmoraghic fever, might be a particularly powerful comparison—its very name in Spanish meaning “black vomit”—with its fifty percent mortality and lifetime immunity for survivors. Id. Some waves of Yellow Fever in Cuba are reported to have killed as much as one third of the population. Id. Like Ebola, also a disease of poverty, Yellow Fever was born in overcrowded housing and close living quarters with poor air circulation. Id.

41 Even between and among drug-resistant bacteria, we focus our attention on the anomalous transfer, rather than the routine. See Sabrina Tavernise, Deadly CRE Germs Linked to Hard-to-Clean Medical Scopes, N.Y. Times (Feb. 19, 2015), http://www.nytimes.com/2015/02/20/health/drug-resistant-germ-is-spreading-by-hospital-device-federal-officials-say.html?_r=0.

42 I counted inches of news space devoted to Kansas City, MO preparedness for Ebola in Sept.-Nov., 2014.

43 See Dan Margolies, Heartland Health Monitor: Truman Med Could Get Hit With Penalty Over Infection Rates, KCUR (June 23, 2014), http://kcur.org/post/truman-med-could-get-hit-penalty-over-infection-rates#stream/0 [http://perma.cc/3VYB-2V77].

44 See Gardiner Harris, ’Superbugs’ Kill India’s Babies and Pose an Overseas Threat, N.Y. Times (Dec. 3, 2014), http://www.nytimes.com/2014/12/04/world/asia/superbugs-kill-indias-babies-and-pose-an-overseas-threat.html?_r=0.

45 Katherine Xue, Superbug: An Epidemic Begins, Harv. Mag., May-June 2014 40, 40.

46 Maryn Mckenna, Superbug: The Fatal Menace of MRSA 181 (Free Press, 1st. ed. 2010).

47 Brian Fung, MRSA On the Rise: Infections Have Doubled in 5 Years, Atlantic (July 30, 2012), http://www.theatlantic.com/health/archive/2012/07/mrsa-on-the-rise-infections-have-doubled-in-5-years/260495/ [http://perma.cc/54UP-46M5].

48 The Search for New Antibiotics, WBUR (Feb. 17, 2014), http://hereandnow.wbur.org/2014/02/17/search-new-antibiotics [http://perma.cc/R5WV-2UXC].

49 Magill, Shelley S. et al., Multistate Point-Prevalence Survey of Healthcare–Associated Infections, 370 New Engl. J. Med. 1198, 1199 (2014)Google Scholar.

50 Inst. of Med., Antimicrobial Resistance: issues and Options, Workshop Report (Polly F. Harrison & Joshua Lederberg eds., 1998).

51 Xue, supra note 45, at 47.

52 A considerable sum in those days, roughly equivalent in purchasing power to 37,000 pounds or 60,000 dollars in 2014. See MeasuringWorth.com, http://www.measuringworth.com/ukcompare/relativevalue.php (last visited Mar. 22, 2016) (providing a tool to find relative values).

53 History of Swansea, Massachusetts, 1667-1917 (Otis Olney Wright ed., 1917), http://archive.org/stream/historyofswansea00wrig/historyofswansea00wrig_djvu.txt.

54 Mary Ann McDonald, Somerset, Massachusetts: Portrait of the American Experience in a New England Town 79 (Spectator Publishing Corp., 1981).

55 Id.

56 Sonia Shah, How Unhealthy Paradigms Become Contagious, TedMed (2014), http://www.tedmed.com/talks/show?id=292928.

57 Xue, supra note 45, at 40 (explaining the role of the “antibiotic revolution” in “trivializing” once-deadly infections and paving the way for medical breakthroughs”).

58 Id.

59 Id.

60 Gabrielle Canon, Antibiotics Are Spreading Like Crazy—and a Lot of Them Are About to Stop Working, Mother Jones (Sept. 19, 2015, 6:00 AM), http://www.motherjones.com/blue-marble/2015/09/antibiotic-resistance-report [http://perma.cc/LVG8-UFVP].

61 Xue, supra note 45, at 40.

62 Id. at 41.

63 See id. at 44.

64 MRSA Health Guide, N.Y. Times (May 12, 2014), http://www.nytimes.com/health/guides/disease/mrsa-infection/overview.html.

65 Id.

66 See CDC, MRSA and the Workplace, CDC.Gov, http://www.cdc.gov/niosh/topics/mrsa/ [http://perma.cc/HFQ9-BQCC] (“While 33% of the population is colonized with staph (meaning that bacteria are present, but not causing an infection with staph), approximately 1% is colonized with MRSA.”).

67 See CDC, Methicillin-Resistant Staphylococcus aureus (MRSA) Infections, CDC.Gov (2015), http://www.cdc.gov/mrsa/community/#q4 [http://perma.cc/AM35-HJMC].

68 Linda Poon, Stethoscopes Do As Much Dirty Work As Hands In Spreading Germs, NPR (Feb. 27, 2014, 1:05 PM), http://www.npr.org/sections/health-shots/2014/02/27/283439909/stethoscopes-do-as-much-dirty-work-as-hands-in-spreading-germs.

69 How a Robot is Helping Reduce Hospital-Borne Infections, Robert Wood Johnson Found. (Feb. 24 2014, 4:15 PM), http://www.rwjf.org/en/blogs/new-public-health/2014/02/how_r2d2_is_helping.html [http://perma.cc/6BCH-HZ3S].

70 See Narrow-Spectrum UV Light May Reduce Surgical Infections, Colum. Univ. Med. Ctr. (Oct. 16, 2013), http://newsroom.cumc.columbia.edu/blog/2013/10/16/narrow-spectrum-uv-light-may-reduce-surgical-infections/ [http://perma.cc/P2JB-4KME]; Hydrogen Peroxide Vapor Enhances Hospital Disinfection, Infection Control Today (Jan. 1, 2013), http://www.infectioncontroltoday.com/news/2013/01/hydrogen-peroxide-vapor-enhances-hospital-disinfection.aspx [http://perma.cc/AT7X-G7QJ].

71 U.S. Nat’l Libr. of Med., MRSA (May 1, 2015), http://www.nlm.nih.gov/medlineplus/ency/article/007261.htm [http://perma.cc/U4VU-FUMJ]. MRSA can morph into different complications as the location and disease profile migrate. See Osteomyelitis, Mayo Clinic (Sept. 25, 2015), http://www.mayoclinic.org/diseases-conditions/osteomyelitis/basics/causes/con-20025518 [http://perma.cc/CM86-XMUC].

72 U.S. Nat’l Libr. of Med., MRSA, supra note 71.

73 MRSA Health Guide, supra note 64.

74 Xue, supra, note 45, at 47.

75 Betsy McCaughney, Unnecessary Deaths: The Human and Financial Costs of Hospital Infections 1, Comm. to Reduce Infection Deaths (2008), http://hospitalinfection.org/ridbooklet.pdf [http://perma.cc/VN79-YKYW].

76 Id. at 9-10.

77 Magill, supra note 49, at 1204.

78 CDC, Preventing Healthcare-Associated Infections, CDC.Gov, http://www.cdc.gov/washington/~cdcatWork/pdf/infections.pdf [http://perma.cc/2FKU-MJT6] (“Approximately 1.7 million HAIs occur in U.S. hospitals each year, resulting in 99,000 deaths.”).

79 See, e.g., CDC, Progress Being Made in Infection Control in U.S. Hospitals; Continued Improvements Needed, CDC.Gov (Jan. 14, 2015), http://www.cdc.gov/media/releases/2015/p0114-mrsa-hospitals-report.html [http://perma.cc/AKL2-W5DK].

80 Study: Hospital Infections Cost 9.8 Billion a Year, CBS News (Sept. 2, 2013, 5:19 PM), http://www.cbsnews.com/news/study-hospital-infections-cost-98-billion-a-year/ [http://perma.cc/LZ7L-6XEP].

81 See Magill, supra note 49 (discussing a survey estimating the total number of hospital acquired infections in U.S. acute care hospitals in 2011).

82 Id.at 1202.

83 See Xue, supra note 45, at 40 (“If the end is here, it has been a relatively long time coming.”).

84 Id.

85 James Surowiecki, Ebolanomics, New Yorker (Aug. 25, 2014), http://www.newyorker.com/magazine/2014/08/25/ebolanomics [http://perma.cc/YX5G-Q8PA].

86 Id. (“If a drug company did invent a powerful new antibiotic, we wouldn’t want it to be widely prescribed, because the goal would be to delay resistance.”).

87 Xue, supra note 45, at 44.

88 See Ezekiel J. Emanuel, How to Develop New Antibiotics, N.Y. Times (Feb. 24, 2015), http://www.nytimes.com/2015/02/24/opinion/how-to-develop-new-antibiotics.html.

89 Xue, supra note 45, at 44.

90 Id. (explaining that vancomycin, the last-line drug against MRSA, has “enjoyed a relatiely lengthy life” because it had a more limited use when first manufactured than penicillin and other related antibiotics).

91 Surowiecki, supra note 85.

92 See American Thoracic Society, CDC, Treatment of Tuberculosis, MMRW Recommendations and Reports (June 20, 2003), http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5211a1.htm [http://perma.cc/L7WG-5HT6].

93 See Margaret A. Hamburg et al., Germs Go Global: Why Emerging Infectious Diseases are a Threat to America 9, Trust for America’s Health & Robert Wood Johnson Found. (2008), http://healthyamericans.org/assets/files/GermsGoGlobal.pdf [http://perma.cc/T5TE-7GGC]; see also Jeffrey Levi et al., Outbreaks: Protecting Americans from Infectious Diseases, Trust for America’s Health & Robert Wood Johnson Found. (2014), http://healthyamericans.org/assets/files/Final%20Outbreaks%202014%20Report.pdf [http://perma.cc/X29N-VDLP] (exploring what the Ebola outbreak outside of the U.S. reveals about the adequacy of U.S. infectious disease controls).

94 See Humberto Sanchez, Thom Tillis: Keep Government Out of the Bathroom, Roll Call (Feb. 3, 2015, 12:37 PM), http://blogs.rollcall.com/wgdb/thom-tillis-keep-government-out-of-the-bathroom [http://perma.cc/2YLM-RJUB].

95 C. Claiborne Ray, Hand-Wringing Over Bacteria, N.Y. Times (Mar. 9, 2015), http://www.nytimes.com/2015/03/10/science/10qna.html (explaining that “even the recommended kinds of sanitizers do not eliminate all germs” and that “[h]and sanitizers that are not based on alcohol … are both less effective and slower to act than alcohol … present[ing] a risk of producing bacterial resistance”).

96 See David Owen, Floating Feasts, New Yorker (Nov. 3, 2014), http://www.newyorker.com/magazine/2014/11/03/floating-feasts [http://perma.cc/5ZZB-WA4P] (“Most alcohol-based hand cleansers are only minimally effective against norovirus, but a few years ago the company that makes Purell introduced and extra-powerful version, called VF481, especially for cruise ships, casinos, hospitals, and other high-risk environments.”).

97 See Steven Ross Johnson, UCLA: Endoscope Manufacturers’ Reprocessing Protocols Won’t Stop Superbug Infections, Modern Healthcare (Feb. 19, 2015), http://www.modernhealthcare.com/article/20150219/NEWS/150219878 [http://perma.cc/9J44-7VD3].

98 Infected Workers, Slow Deployment, No Vaccines: Ebola Response Shows Pitfalls of Privatized Health (Democracy Now broadcast Oct. 15, 2014) (transcript available at http://www.democracynow.org/2014/10/15/infected_workers_slow_deployment_no_vaccines [http://perma.cc/ZQY6-667X]).

99 Nicholas Bakalar, Go Ahead, Use the Restroom, N.Y. Times (Dec. 4, 2014, 9:33 AM), http://well.blogs.nytimes.com/2014/12/04/go-ahead-use-the-restroom (containing reader comments perseverating on the presence of vaginal organisms on women’s toilet seats and not the presence of skin- associated Staphylococcus aureus, a common cause of skin infections).

100 See, e.g., Anahad O’Connor, California: More Drug-Resistant Cases are Linked to Medical Devices, N.Y. Times (Mar. 4, 2015), http://www.nytimes.com/2015/03/05/us/california-more-drug-resistant-cases-are-linked-to-medical-device.html.

101 N.Y. Times Editorial Board, When Medical Devices Spread Superbugs, N.Y. Times (Feb. 23, 2015), http://www.nytimes.com/2015/02/23/opinion/when-medical-devices-spread-superbugs.html.

102 Catherine Saint Louis, After Deadly Infections, F.D.A. Asks Device Makers About Cleaning Methods, N.Y. Times (Feb. 25, 2015), http://www.nytimes.com/2015/02/26/us/after-deadly-infections-fda-asks-device-makers-about-cleaning-methods.html.

103 Id.

104 O’Connor, supra note 100.

105 Steven Ross Johnson, Duodenoscope Makers Ordered to Study Device-Cleaning Processes, Modern Healthcare (Oct. 5, 2015), http://www.modernhealthcare.com/article/20151005/news/151009969 [http://perma.cc/8J8B-9C9Q].

106 See Jon Hamilton, Why California’s Superbug Outbreak Isn’t As Scary As It Seems, NPR (Feb. 20, 2015, 5:49 PM), http://www.npr.org/sections/health-shots/2015/02/19/387552431/heres-why-californias-superbug-outbreak-isnt-as-scary-as-it-seems [http://perma.cc/ACD4-3SPX].

107 But see Monina Klevens, R. et al., Estimating Healthcare-Associated Infections and Deaths in U.S. Hospitals, 2002, 122 Pub. Health Reps. 160 (2007)Google Scholar, http://www.cdc.gov/HAI/pdfs/hai/infections_deaths.pdf [http://perma.cc/H248-DUJS].

108 Calls for Superbug Reporting Rules Increase Amid Outbreaks, Cal. Healthline (Mar. 9, 2015), http://www.californiahealthline.org/articles/2015/3/9/calls-for-superbug-reporting--rules-increase-amid-outbreaks [http://perma.cc/3HKW-2SFN].

109 Id. (explaining that the CDC maintains that “[u]ltimately, the decision should be based on what makes sense for prevention in a particular state” without explaining why such a diffuse approach makes sense with infections that do not respect state borders).

110 Indeed, we do not know if healthcare-associated infections are the problem or one manifestation of a larger problem with skin infections in general. See Roni Caryn Rabin, Single Dose of Antibiotic Found Effective in Quelling MRSA, N.Y. Times (June 4, 2014), http://www.nytimes.com/2014/06/05/health/single-dose-of-antibiotic-found-effective-in-quelling-mrsa.html (noting that rates of skin infection are on the rise, with an estimated fifteen million cases per year in the United States).

111 In fact, it can fairly be said that there is no genuine consensus on the number of Americans who die each year from antibiotic-resistant infections, with the CDC itself conceding that some of its numbers are based on what might be called cautious counting, including only deaths definitively considered to be attributable to these infections. See CDC Studies Assess Effects of Antibiotic Resistant Infections, MRSA, Cal. Healthline Daily Edition (Sept. 17, 2013), http://californiahealthline.org/morning-breakout/cdc-studies-assess-effects-of-antibioticresistant-infections-mrsa [http://perma.cc/SUD4-KXSU].

112 Bernard S. Black & David A. Hyman, Public Reporting of Hospital Infection Rates: Not All Change is Progress (forthcoming).

113 David Orentlicher, Ebola: A Problem of Poverty Rather Than Health, Prawfs Blawg (Oct. 28, 2014, 10:09 AM), http://prawfsblawg.blogs.com/prawfsblawg/2014/10/ebola-a-problem-of-poverty-rather-than-health.html [http://perma.cc/H8MN-PGTU].

114 World Health Org., Antimicrobial Resistance: Global Report on Surveillance (2014), http://apps.who.int/iris/bitstream/10665/112642/1/9789241564748_eng.pdf [http://perma.cc/ZJE3-XHXF].

115 See CDC, About Ebola Virus, supra note 28.

116 See Alexander, Kathleen A. et al., What Factors Might Have Led to the Emergence of Ebola in West Africa?, 9 Plos Neglected Tropical Diseases 1, 11–12 (2015)Google Scholar.

117 See USDA, 2012 Census of Agriculture, Preliminary Report Highlights, US Farms & Farmers 1 (2014), http://www.agcensus.usda.gov/Publications/2012/Preliminary_Report/Highlights.pdf [http://perma.cc/N8PD-9V6J] (“In 2012, the United States had 2.1 million farms – down 4.3 percent from the last agricultural Census in 2007. This continues a long-term trend of fewer farms.”)

118 Sabrina Tavernise, Antibiotic-Resistant Infections Lead to 23,000 Deaths a Year, C.D.C. Finds, N.Y. Times (Sept. 16, 2013), http://www.nytimes.com/2013/09/17/health/cdc-report-finds-23000-deaths-a-year-from-antibiotic-resistant-infections.html?_r=0. The government has estimated that more than 70 percent of antibiotics in the United States are given to animals. Id. Companies use them to prevent sickness when animals are packed together in ways that breed infection. Id. They also use them to make animals grow faster, though federal authorities are trying to stop that. Id. According to one CDC report, “much of antibiotic use in animals is unnecessary and inappropriate and makes everyone less safe.” Id.

119 Id.

120 California’s recent decision to move forward with legislation addressing the management of antibiotic use in animals may be the harbinger of change in this regard. See Rudolf H. Beese & Phillip Bradley, Limiting Antibiotic Use in Animals, How States are Taking Charge, Lexology (Oct. 22, 2015), http://www.lexology.com/library/detail.aspx?g=744600e7-b956-4934-95bf-7ba3925bdf7a [http://perma.cc/3SN2-YVA4].

121 See Smith, Cedric M., Origin and Uses of Primum Non Nocere—Above All, Do No Harm!, 45 J. Clinical Pharmacology 371, 371 (2005)Google Scholar. Also known as the “Hippocratic injunction to do no harm,” primum non nocere is an important phrase in clinical pharmacology and medical education. Id. Although its actual author is disputed, this phrase “remains a potent reminder that every medical and pharmacological decision carries the potential for harm.” Id.

122 Kate Murphy, The Ethics of Infection, N.Y. Times (Nov. 8, 2014), http://www.nytimes.com/2014/11/09/sunday-review/the-ethics-of-infection.html?_r=0 (exploring the question of whether and to what extent citizens have an “ethical obligation” to prevent the spread of infection and sickness).

123 See, e.g., Tijs J. Tobias, et al., Association Between Transmission Rate and Disease Severity for Actinobacillus Pleuropneumoniae Infection in Pigs, 44 Veterinary Res. (2013) (studying the connection between rate of transmission and severity of disease due to A. pleuropneuomoniae exposure in pigs, causing respiratory illness).

124 See Letter from Lisa McGiffert et al., Consumers Union, to Don Wright, Deputy Assist. Sec’y for Healthcare Quality, HHS (Mar. 27, 2014), http://safepatientproject.org/wordpress/wp-content/uploads/2014/03/CU-comments-HHS-HAI-action-plan-update-3-27-14.pdf [http://perma.cc/6YL9-6RLR] (speaking to the inability of current aggregated HHS data to adequately convey transmission risk at individual hospitals).

125 Healthcare-Associated Infections, supra note 12.

126 Id.

127 CDC, Antibiotic Resistance Threats in the United States (2013), http://www.cdc.gov/drugresistance/pdf/ar-threats-2013-508.pdf [http://perma.cc/P682-S9JL].

128 See Robert Lowes, Hospital-Acquired Conditions and Readmits on Downswing, Medscape (May 7, 2014), http://www.medscape.com/viewarticle/824782 [http://perma.cc/77DH-YWCK] (finding a 9% reduction in HACS, saving almost 15,000 lives).

129 Id.

130 Healthcare-Associated Infections, Medicare.gov, http://www.medicare.gov/hospitalcompare/Data/Healthcare-Associated-Infections.html [http://perma.cc/XU3S-WQXT] (explaining self-reporting mechanism and its flaws).

131 Id.

132 See, Saint, Sanjay et al., Catheter-Associated Urinary Tract Infection and the Medicare Rule Changes, 150 Annals of Internal Med. 877, 882 (2009)Google Scholar (explaining the lack of incentive to accurately report catheter-associated urinary tract infections, providing an incomplete record for potential epidemiological studies).

133 See Tavernise, supra note 118 (explaining that the wide discrepancy between a 2007 CDC report estimating that 100,000 people die of hospital-acquired infections per year and a 2014 CDC report finding that the number is only 23,000 people per year is due to the CDC’s subsequent exclusion of “cases in which a drug-resistant infection was present but not necessarily the cause of death”).

134 Consumer Reports National Research Center, Patient Experience 3 (Mar. 2009), http://consumersunion.org/pdf/medical-error-poll-309.pdf [http://perma.cc/SU3M-D7RB].

135 See CDC, Progress Being Made in Infection Control in U.S. Hospitals; Continued Improvements Needed, CDC.Gov (Jan. 14, 2015), http://www.cdc.gov/media/releases/2015/p0114-mrsa-hospitals-report.html [http://perma.cc/6DZN-9RUM] (edited Feb. 24, 2015).

136 See Robert Preidt, Hospital-Acquired Infection Rates Declining, CBSNews (Jan. 14, 2015, 5:07 PM), http://www.cbsnews.com/news/hospital-acquired-infection-rates-declining/ [http://perma.cc/JL6C-DALP] (calling for “continued efforts to improve infection control in U.S. hospitals”); see also Alice Park, Here’s What U.S. Health Experts Learned from Ebola One Year Later, Time (Sept. 24, 2015) http://time.com/4047029/ebola-lessons-one-year-later/ [http://perma.cc/84UY-JERD] (arguing that we can’t wait for an emergency to put money into preventative measures).

137 In this, we have something in common with those West African cultures that will not or cannot change burial rituals involving prolonged close contact with dead bodies. See Abby Haglage, Kissing the Corpses in Ebola Country, Daily Beast (Aug. 13, 2014, 5:55 AM), http://www.thedailybeast.com/articles/2014/08/13/kissing-the-corpses-in-ebola-country.html [http://perma.cc/8BRM-QNRR]. The report indicating that seventy percent of new cases of Ebola in Sierra Leone are directly linked to such traditional burials, is met with the same sense of fatalism we greet the news of our own hospital acquired infections pandemic. See Jeffrey Gettleman, Despite Aid Push, Ebola Is Raging in Sierra Leone, N.Y. Times (Nov. 27, 2014), http://www.nytimes.com/2014/11/28/world/africa/despite-aid-push-ebola-is-raging-in-sierra-leone.html.

138 See 2 Alexis de Tocqueville, Democracy in America 887-96, (Henry Reed Trans., Floating Press 2009) (1840).

139 Arguably, the goal of rapid acute care facility bed turnover finds its bottleneck at the housekeeping department’s limitations on room turnover cleaning capacity. See Louis Profeta, ER Doctor: What Scares Me Even More Than Ebola, An ER Doctor Writes, Trent (Oct. 27, 2014), http://www.thetrentonline.com/er-doctor-scares-even-ebola-dr-louis-m-profeta/ [http://perma.cc/3XS9] (noting that “[t]he regulations, protocols and procedures put into place to clean a room are so extensive that rapid room turnover was next to impossible with the current staffing model” and that the lowest paid hospital workers are put in the highly pressured position of advancing room turnover).

140 See Sabriya Rice, Hospitals Revamp Infection Control Amid Ebola Scare, Modern Healthcare (Oct. 26, 2014), http://www.modernhealthcare.com/article/20141026/NEWS/310249942 [http://perma.cc/S8NQ].

141 See 35 U.S. Hospitals Designated as Ebola Treatment Centers—CDC Trains and Assesses Ebola Hospital Readiness in Collaborative Effort, GovDelivery (Dec. 2, 2014 4:02 PM), http://content.govdelivery.com/accounts/USCDC/bulletins/e05f53 [http://perma.cc/F7M9-D2YM].

142 See Beth Kutscher, Ebola Spurs Higher Demand for Infection-Control Products, Modern Healthcare (Oct. 25, 2014), http://www.modernhealthcare.com/article/20141025/NEWS/310249943 [http://perma.cc/7SM7] (describing “greater demand for infection-control products as hospitals prepare for possible Ebola cases in their facilities”).

143 Kevin Sack & Manny Fernandez, Delay in Dallas Ebola Cleanup as Workers Balk at Task, N.Y. Times (Oct. 2, 2014), http://www.nytimes.com/2014/10/03/us/dallas-ebola-case-thomas-duncan-contacts.html.

144 See id.

145 David Sanders, Address at the University of Missouri, Kansas City: The New Health Economy: A Global Perspective (Dec. 11, 2014).

146 See White House Office of the Press Secretary, Fact Sheet: U.S. Response to the Ebola Epidemic in West Africa (Sept. 16, 2014), http://www.whitehouse.gov/the-press-office/2014/09/16/fact-sheet-us-response-ebola-epidemic-west-africa [http://perma.cc/BSL5-DXPN] (outlining, without mention of infection-control in acute care facilities, the new resources deployed to help the U.S. respond to Ebola).

147 Sanders, supra note 145.

148 See Tocqueville, supra note 138, at 887-96.

149 See id.

150 See id.

151 See Resnick, Ilyse et al., Examining the Representation and Understanding of Large Magnitudes Using the Hierarchical Alignment Model of Analogical Reasoning 917 (2012)Google Scholar, http://mindmodeling.org/cogsci2012/papers/0167/paper0167.pdf [http://perma.cc/E8RV-QAEL] (arguing humans struggle to comprehend values of extremely large or small magnitudes).

152 How Many Ebola Patients Have Been Treated Outside of Africa?, N.Y. Times (Jan. 26, 2015), http://www.nytimes.com/interactive/2014/07/31/world/africa/ebola-virus-outbreak-qa.html.

153 Endemic, Dictionary.com, http://dictionary.reference.com/browse/endemic [http://perma.cc/26MG-J3GA] (defining “endemic” as “natural to or characteristic of a specific people or place; native; indigenous,” or “belonging exclusively or confined to a particular place”).

154 See Tocqueville, supra note 138, at 714 (“[Americans] have all a lively faith in the perfectibility of man; they are of opinion that the effects of the diffusion of knowledge must necessarily be advantageous, and the consequences of ignorance fatal … ”); see also Rebecca Jacobson, These Six Diseases Should Worry You More Than Ebola, PBS NewsHour (Oct. 8, 2014, 3:43 PM), http://www.pbs.org/newshour/updates/six-diseases-actually-worry/ [http://perma.cc/S5K3-4XEL] (arguing that “diseases we should be worried about” include Enterovirus and Measles, not Ebola) (emphasis included)).

155 See The Social Psychology of HIV Infection 6 (John B. Pryor & Glenn D. Reeder eds., 2015).

156 Id.; see also 2 Psychology at the Turn of the Millenium 253 (Claes von Hofsten & Lars Bäckman, eds., 2002) (“[R]isks that are more cognitively available through personal experience or media coverage tend to be overestimated.”); Jacobson, supra note 154 (illustrating that what we imagine is most specific to us does not always reflect what we should fear most).

157 The fact that the response to Ebola largely focused on individual protection via means including personal protection equipment as opposed to general methods to reduce the spread to the general population may be symptomatic of our feelings that the spread of healthcare associated infections is beyond our control. See Jaimy Lee, Setting the Research Priorities for Ebola, Modern Healthcare (Nov. 1, 2014), http://www.modernhealthcare.com/article/20141101/MAGAZINE/311019948/setting-the-research-priorities-for-ebola [http://perma.cc/S5K3-4XEL].

158 Tocqueville, supra note 138, at 714.

159 Richard Preston, The Ebola Wars: How Genomics Research Can Help Contain the Outbreak, New Yorker (Oct. 27, 2014), http://www.newyorker.com/magazine/2014/10/27/ebola-wars [http://perma.cc/D6G2-XVS4].

160 Jordan Rau, Hospitals’ Struggles to Beat Back Familiar Infections Began Before Ebola Arrived, Kaiser Health News (Oct. 21, 2014), http://kaiserhealthnews.org/news/hospitals-struggles-to-beat-back-familiar-infections-began-before-ebola-arrived/ [http://perma.cc/A9HF-VFJ2].

161 See Chelsea Rice, Dallas Hospital Defends Treatment of Ebola Patient, Boston.com (Oct. 9, 2014, 6:48 PM), http://www.boston.com/health/2014/10/09/dallas-hospital-defends-treatment-ebola-patient/GJQ0cfpZUiZUHs9iMqGO3K/story.html [http://perma.cc/D7P8-WAWF].

162 Kevin Sack, Downfall for Hospital Where Ebola Spread, N.Y. Times (Oct. 15, 2014), http://www.nytimes.com/2014/10/16/us/infamy-for-dallas-hospital-where-virus-spread.html.

163 See, e.g., Robert Pearl, Ebola Response Reveals Double Standard In U.S. Healthcare, Forbes (Dec. 11, 2014), http://www.forbes.com/sites/robertpearl/2014/12/11/ebola-double-standard/#7b83e4707f46 (“Some of the same leaders who demand hazmat suits to protect healthcare workers from Ebola have done little to address the risks involved when healthcare workers don’t wash their hands.”).

164 See Lisa Schnirring, CDC to Deploy Ebola Response Team to Help Hospitals, CIDRAP News (Oct. 14, 2014), http://www.cidrap.umn.edu/news-perspective/2014/10/cdc-deploy-ebola-response-team-help-hospitals [http://perma.cc/X78P-UFSF].

165 Judy Stone, Why Ebola Is a Wake Up for Infection Control, Scientific American: Molecules to Med. Blog (Oct. 23, 2014), http://blogs.scientificamerican.com/molecules-to-medicine/2014/10/23/why-ebola-is-a-wake-up-for-infection-control/ [http://perma.cc/98AU-ZYF9].

166 See id.

167 Rau, supra note 160.

168 But see Anemona Hartocollis, With Money at Risk, Hospitals Push Staff to Wash Hands, N.Y. Times (May 28, 2013), http://www.nytimes.com/2013/05/29/nyregion/hospitals-struggle-to-get-workers-to-wash-their-hands.html.

169 Nancy Gibbs, Person of the Year: The Choice, Time (Dec. 10, 2014), http://time.com/time-person-of-the-year-ebola-fighters-choice/ [http://perma.cc/5CP8-NM5B].

170 Fung, supra note 47.

171 Id.

172 Id.; see also CDC, General Information About MRSA in Healthcare Settings, CDC.Gov (Apr. 3, 2014), http://www.cdc.gov/mrsa/healthcare/index.html [http://perma.cc/6LJN-Y5M5] (“Invasive MRSA infections that began in hospitals declined 54% between 2005 and 2011, with 30,800 fewer severe MRSA infections.”).

173 See Fung, supra note 47.

174 Id.

175 See U. Chi. Med. MRSA Res. Ctr., For Infection Control Professionals – FAQs (2016), http://mrsa-research-center.bsd.uchicago.edu/infection_control/faq.html [http://perma.cc/H2W9-QVRB] (explaining that some states require screening upon hospital admission, but that the general consensus is that “hospital workers should only be cultured when they are clearly implicated in MRSA transmission”).

176 See Mass. Gen. Hosp., MRSA Incidence, http://qualityandsafety.massgeneral.org/measures/linemeasurement.aspx?id=630 [http://perma.cc/3U6X-N4UW].

177 See, e.g., id. (showing, as a result, that MGH can only compare itself to itself over time or longitudinally and not to facilities of similar size, patient mix, and payor mix).

178 Betsy McCaughey, Committee to Reduce Infection Deaths, Unnecessary Deaths: The Human and Financial Costs of Hospital Infections 1 (3d ed. 2008), http://www.hospitalinfection.org/ridbooklet.pdf [http://perma.cc/TXP3-EZZM].

179 Abad, C.L. et al., Does the Nose Know? An Update on MRSA Decolonization Strategies, 15 Current Infectious Disease Rep. 455, 462 (2013)Google Scholar (noting that decolonization efforts “have not been consistent or applicable to all populations”).

180 See Drazen, supra note 38, at 2 (describing New York’s quarantine of healthcare workers returning from Ebola-threatened regions of the world in order to stem spread of potential colonized bacteria).

181 See David, Michael Z. et al., Increasing Burden of Methicillin-Resistant Staphylococcus aureus Hospitalizations at US Academic Medical Centers, 2003-2008, 33 Infection Control Hosp. Epidemiology 782, 787 (2012)Google Scholar.

182 See id.

183 See Pete Eisler & Morgan Fecto, MRSA Bacteria Target Crowded Places With Poor Hygiene, USA Today (Dec. 18, 2013, 3:12 PM), http://www.usatoday.com/story/news/nation/2013/12/16/mrsa-emerging-in-schools-prisons-athletic-facilities/4013153/ [http://perma.cc/P2YW-UAAE] (describing a new form of community-acquired MRSA that “caus[es] hundreds of thousands of infections a year that go unreported and untracked by public health agencies.”).

184 See Ezekiel Emanuel, Reinventing American Healthcare 22-23 (Public Affairs 2014); see also Concerned MD, Comment to When a Stressful Hospital Stay Makes You Sick, N.Y. Times: Well (June 12, 2014), http://well.blogs.nytimes.com/2014/06/12/when-a-stressful-hospital-stay-makes-you-sick/?hpw&rref=health (“Hospitals are dangerous places. If at all possible, avoid being admitted. If admitted, get out as soon as possible. And I say that as a physician.”).

185 See, e.g., Ira Byock, Opinion, Dying Shouldn’t Be So Brutal, N.Y. Times (Jan. 31, 2015), http://opinionator.blogs.nytimes.com/2015/01/31/dying-shouldnt-be-so-brutal/ (calling for public “outrage” at the “unsafe state” of hospice care).

186 See Concerned MD, supra note 184; Abagail Zuger, Revolving Doors at Hospitals, N.Y. Times: Well (June 9, 2014, 4:36 PM), http://well.blogs.nytimes.com/2014/06/09/revolving-doors-at-hospitals/ [http://perma.cc/4BWF-8QUK] (see subscriber comments); see also Anemona Hartocollis, Measles Outbreak May Have Spread in Medical Facilities, a New York City Official Says, N.Y. Times (Mar. 18, 2014), http://www.nytimes.com/2014/03/19/nyregion/measles-outbreak-in-new-york-may-have-spread-in-medical-facilities.html.

187 O’Connell, Kerry, Two Arms, Two Choices: If Only I’d Known Then What I Know Now, 31 Health Affairs 1895, 1898 (2012)Google Scholar.

188 See David Owen, Hands Across America: The Rise of Purell, New Yorker (Mar. 4, 2013), http://www.newyorker.com/magazine/2013/03/04/hands-across-america [http://perma.cc/KFS2-JST8].

189 See Contagion (Warner Bros. 2011); see also Outbreak (Warner Bros. 1995).

190 See Paul Starr, Book One: The Rise of a Sovereign Profession and the Making of a Vast Industry, in The Social Transformation of American Medicine (Basic Books 1982).

191 See Sanchez, supra note 94.

192 Dionne Searcey, The Last Place on Earth With Ebola: Getting Guinea to Zero, N.Y. Times (Nov. 6, 2015), http://www.nytimes.com/2015/11/07/world/africa/the-last-place-on-earth-with-ebola-guineas-fight-to-get-to-zero.html?_r=0.

193 Id.

194 Id.

195 See, e.g., CDC, Nursing Homes and Assisted Living (Long-Term Care Facilities [LTCFs]), CDC.Gov (Sept. 15, 2015), http://www.cdc.gov/longtermcare/index.html [http://perma.cc/8M7J-VGQL] (describing high rates of infection in long-term care facilities).

196 See Lewis W. Diuguid, Antibiotics Grow Less Effective Against Infections, Creating Global Concern, Kan. City Star (May 1, 2014, 11:00 AM), http://www.kansascity.com/opinion/opn-columns-blogs/lewis-diuguid/article348046/Antibiotics-grow-less-effective-against-infections-creating-global-concern.html [http://perma.cc/VT57-4DTM]; see also Antimicrobial Resistance: A Problem Without Borders, Panel Discussion at the Institute of Medicine 2014: Richard and Hinda Rosenthal Symposium (May 6, 2014).

197 See Aurora Aguilar, CDC Steps Up Battle to Squash Superbugs in Nursing Homes, Modern Healthcare (Sept. 15, 2015), http://www.modernhealthcare.com/article/20150915/NEWS/150919916 [http://perma.cc/EG2V-762T].

198 ConsumerReports, How Your Hospital Can Make You Sick, http://www.consumerreports.org/cro/health/hospital-acquired-infections/index.htm [http://perma.cc/27G2-6ZXT] (quoting one doctor cautioning patients to be on “high alert” any time they enter a hospital); see also Joel Keehn, 12 Hospitals You Might Want to Avoid, ConsumerReports (Dec. 7, 2015), http://www.consumerreports.org/cro/health/12-hospitals-to-avoid [http://perma.cc/A6TT-7755] (listing hospitals with allegedly poor infection control mechanisms).

199 Starr, supra note 190, at 157 (“After 1900, as the old prejudice died out, most surgery moved inside hospitals.”); see also Marciarille, Ann Marie, Healing Medicare Hospital Recidivism: Causes and Cures, 37 Am. J.L. & Med. 41, 51 (2011)Google Scholar (“[B]y 1913 an observable decline in home care of the sick had been noted ….”).

200 Dina Fine Maron, Under the Knife: Where Infections Fly Under the Radar, Scientific American (May 19, 2014), http://www.scientificamerican.com/article/under-the-knife-where-infections-fly-under-the-radar/ [http://perma.cc/L2XG-P3RZ] (quoting one doctor saying that “experience suggests the yield [for infections] will be fairly low for these procedures that would be included” in ambulatory surgery centers). The discrepancy in infections may be partially attributed to the average patient pool in ambulatory surgery centers being healthier and lower risk than the average patient pool in hospitals. See MEDPAC, Chapter 5: Ambulatory Surgical Center Services, in Reports to the Congress: Medicare Payment and Policy 120, 125 (Mar. 2015), http://www.medpac.gov/documents/reports/mar14_ch05.pdf [http://perma.cc/AH5V-BUVY].

201 Maron, supra note 200.

202 Id.

203 Id.

204 See, e.g., CDC, Healthcare Associated Infections (HAIs): Staphylococcus aureus in Healthcare Settings, CDC.Gov (Jan. 17, 2011), http://www.cdc.gov/HAI/organisms/staph.html [http://perma.cc/8DJN-PGUK] (“Staphylcoccus aureus … is a type of bacteria that about 30% of people carry in their noses.”).

205 CDC Newsroom, Media Advisory: CDC’s Graphs of the Year: Nightmare Bacteria Spread and 100,000 Smokers Likely Quit with Tips, CDC.Gov (Dec. 31, 2013), http://www.cdc.gov/media/releases/2013/a1231-graphs-year.html [http://perma.cc/KB44-2HJE].

206 As of March 2012, the CDC Vital Signs publication estimates 94% of c. difficile infections are healthcare associated, accounting for approximately 14,000 U.S. deaths each year. CDC Vitalsigns, Making Healthcare Safer: Stopping C. Difficile Infections (Mar. 2012), http://www.cdc.gov/vitalsigns/hai/stoppingcdifficile/ [http://perma.cc/2LUX-LR7V].

207 NIH, Gonorrhea, MedlinePlus. http://www.nlm.nih.gov/medlineplus/ency/article/007267.htm [http://perma.cc/X2DJ-G6UN] (last updated May 5, 2015) (describing symptoms, causes and treatment and causes of Gonorrhea).

208 ConsumerReports, How Your Hospital Can Make You Sick, supra note 198.

209 See Brian Handwerk, You Produce a Microbial Cloud That Can Act Like an Invisible Fingerprint, Smithsonian.com (Sept. 22, 2015), http://www.smithsonianmag.com/science-nature/you-produce-microbial-cloud-can-act-invisible-fingerprint-180956698/?no-ist [http://perma.cc/447V-YMHN].

210 Roni Caryn Rabin, Single Dose of Antibiotic Found Effective in Quelling MRSA, N.Y. Times (June 4, 2014), http://www.nytimes.com/2014/06/05/health/single-dose-of-antibiotic-found-effective-in-quelling-mrsa.html?_r=0.

211 O’Connell, Kerry, Two Arms, Two Choices: If Only I’d Known Then What I Know Now, 31 Health Affairs 1895, 1899 (2012)Google Scholar (“But we shouldn’t all have to learn everything the painful way, through tragic individual experiences. Wise systems learn systematically from the collective experience of millions of good and bad outcomes.”).

212 Jesse McKinley, Sandra Lee Is Released From Hospital After Surgery for Infection, N.Y. Times (Aug. 12, 2015), http://www.nytimes.com/2015/08/13/nyregion/sandra-lee-to-be-released-from-hospital-after-surgery-for-infection.html.

213 Decolonization is use of topical and/or systemic agents to suppress or eliminate colonization, and it may reduce risk of subsequent infections in colonized individuals. John Jernigan & Allex Kallen, Decolonization Therapy for MRSA Carriers 25, in Methicillin-Resistant Staphylococcus aureus (MRSA) Infections Presentations (Jan. 19, 2010), http://www.cdc.gov/HAI/pdfs/toolkits/MRSA_toolkit_white_020910_v2.pdf [http://perma.cc/UFV7-NCAW].

214 See Michael Addidle, Woolly Mammoths or Unknown Soldiers?, Microbiology Matters! (Sept. 28, 2013), http://microbiologymatters.com/?p=1934 [http://perma.cc/AG3U-9LCR].

215 Rabin, supra note 110.

216 Some have suggested that Thomas Duncan’s race and insurance status—both individual characteristics—may also have played a role in the decision to send him home. Lauren Gambino & Tom Dart, Medical Records Reveal Deceased Texas Ebola Patient Sent Home With High Fever, Guardian (Oct. 10, 2014, 4:19 PM), http://www.theguardian.com/world/2014/oct/10/thomas-duncan-ebola-medical-records-high-fever [http://perma.cc/8PQ4-8RW3].

217 Id.

218 Schaffner, Diana E., EMTALA: All Bark and No Bite, 2005 U. Ill. L. Rev. 1021, 1031 (2005)Google Scholar (explaining that EMTALA “only guarantees nondiscriminatory emergency medical treatment” and does not “guarantee that all patients are properly diagnosed” or “ensure that they receive adequate care”).

219 See Gambino, supra note 216.

220 Magill, supra note 49, at 1198 (“Out of 11,282 patients, 452 had 1 or more healthcare-associated infections.”).

221 It was not until 2013 that the CDC attempted a first-ever national snapshot of antibiotic-resistant infections, in general. See Preventing Healthcare-Associated Infections, supra note 78; see also Dina Fine Maron, Drug-Resistant Superbugs Kill at Least 23,000 People in the U.S. Each Year, Scientific American: Observations (Sept. 16, 2013), http://blogs.scientificamerican.com/observations/drug-resistant-superbugs-kill-at-least-23000-people-in-the-us-each-year/ [http://perma.cc/6BQ4-QAM5].

222 See Megan McArdle, How Bad Are Hospital Acquired Infections in America?, Atlantic: Health (Sept. 1, 2011), http://www.theatlantic.com/health/archive/2011/09/how-bad-are-hospital-acquired-infections-in-america/244458/ [http://perma.cc/TA2E-5CX4].

223 CDC, Diseases and Organisms in Healthcare Settings, CDC.Gov (Mar. 26, 2014), http://www.cdc.gov/HAI/organisms/organisms.html [http://perma.cc/XGX7-MVTA] (“Young children, the elderly, and people with other medical illnesses are most at risk for more severe or prolonged [norovirus] infection.”); see also Pastagia, Mina et al., Predicting Risk of Death from MRSA Bacteremia, 18 Emerging Infectious Diseases 1072, 1078 (2012)Google Scholar (explaining that patients most likely to die from MRSA are the elderly, patients with liver cirrhosis, patients with renal insufficiency, and patients from nursing homes”).

224 See Christopher Weaver & Jonathan D. Rockoff, Killer Bug Is Traced at NIH Hospital, Wall St. J., Aug. 23, 2012, at A3 (detailing a “medical mystery that left six patients dead last year at the National Institutes of Health’s elite research hospital”).

225 Hartocollis, supra note 168.

226 Rau, supra note 160; see also Measures Displayed on Hospital Compare, Medicare.Gov: Hospital Compare, http://www.medicare.gov/hospitalcompare/Data/Measures-Displayed.html [http://perma.cc/3REX-JC9F].

227 Data Sources, Medicare.Gov: Hospital Compare, http://www.medicare.gov/hospitalcompare/Data/Data-Sources.html [http://perma.cc/N4UR-BYJA].

228 See Arlene S. Ash et al., Statistical Issues in Assessing Hospital Performance 7-33 (2012), http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Downloads/Statistical-Issues-in-Assessing-Hospital-Performance.pdf [http://perma.cc/AY6P-C993].

229 Rau, supra note 160 (“Because cancer surgeries take longer than regular hysterectomies, often involving removal of pelvic lymph nodes, the chances of infection are greater.”).

230 Id. (explaining that many hospitals claim the CDC data makes them “look bad because they are more vigilant in identifying and reporting infections, or because they handle very sick patients who are more prone to catching a bug”).

231 See id. (“Yale-New Haven Hospital had lower rates of bloodstream infections caused by central lines, but higher rates of infections from catheters inserted into the bladder to remove urine.”).

232 Id.

233 Vernillia R. Randall, Bioterrorism, Public Health and the Law: Early Biological War on Native Americans (Nov. 30, 2002), http://academic.udayton.edu/health/syllabi/Bioterrorism/00intro02.htm [http://perma.cc/8MBE-9TH9] (discussing early biological war on Native Americans during the French & Indian War in the mid 1700s).

234 See CDC, Antibiotic Resistance Threats in the United States, supra note 127, at 7.

235 See Dantes, Raymund et al., National Burden of Invasive Methicillin-Resistant Staphylococcus aureus Infections, United States, 2011, 173 Jama Internal Med. 1970, 1970 (2013)Google Scholar (nothing that, “[s]ince 2005, adjusted national estimated incidence rates decreased among HACO infections by 27.7% and hospital-onset infections decreased by 54.2%.”).

236 Id. (“[C]ommunity-associated infections decreased by only 5.0%.”).

237 See Lee Ventola, C., The Antibiotic Resistance Crisis: Part 1: Causes and Threats, 40 Pharmacy and Therapeutics 277, 279 (2015)Google Scholar (noting that recent “molecular detection methods have demonstrated that resistant bacteria in farm animals reach consumers through meat products”).

238 See Lowy, Franklin D., Methicillin-Resistant Staphylococcus aureus: Where Is It Coming From and Where Is It Going?, 173 Jama Internal Med. 1978 (2013)Google Scholar.

239 New York Times Editorial Board, The Rise of Antibiotic Resistance, N.Y. Times (May 10, 2014), http://www.nytimes.com/2014/05/11/opinion/sunday/the-rise-of-antibiotic-resistance.html; see also World Health Org., supra note 114, at XIX (noting that “[antimicrobial resistance] results in reduced efficacy of antibacterial, antiparasitic, antiviral and antifungal drugs, making the treatment of patients difficult, costly, or even impossible”).

240 Id. at IX (defining a “post-antibiotic era” as one “in which common infections and minor injuries can kill”).

241 Maron, supra note 221.

242 Id.; see also Inst. of Med. of the Nat’l Academies, The Resistance Phenomenon in Microbes and Infectious Disease Vectors: Implications for Human Health and Strategies for Containment 9 (Stacey L. Knobler et al. eds., 2003), http://www.ncbi.nlm.nih.gov/books/NBK97138/pdf/Bookshelf_NBK97138.pdf [http://perma.cc/X3RH-LJM2] (“The combination of highly susceptible immunosuppressed patients … who lack the basic immune mechanisms so essential to elimination of pathogens, intensive and prolonged antimicrobial use, close proximity among patients, and multiple invasive procedures have resulted in hospital-acquired infections that are highly resistant to available therapeutics.”).

243 Inst. of Med. of the Nat’l Academies, supra note 242.

244 Id.

245 Maron, supra note 221.

246 Qian, Xufeng et al., ‘Quicker and Sicker’ Under Medicare’s Prospective Payment System for Hospitals: New Evidence on an Old Issue From a National Longitudinal Survey, 63 Bulletin Econ. Res. 1, 1–2 (2011)Google Scholar.

247 Beth Mole, Patients Leave a Microbial Mark on Hospitals, Nature (May 23, 2013), http://www.nature.com/news/patients-leave-a-microbial-mark-on-hospitals-1.13057 [http://perma.cc/4RFV-6HXE].

248 See MRSA Outbreak Affects Babies at Sutter Memorial, CBS Sacramento (Aug. 27, 2012 10:11 PM), http://sacramento.cbslocal.com/2012/08/27/mrsa-outbreak-affects-sutter-memorial-babies/ [http://perma.cc/48WD-XRN4] (quoting the statements of an indignant mother of a newborn diagnosed with MRSA: “I just think for them not to be able to tell my baby how he got MRSA is not OK … [t]hey’re the hospital, they should have answers.”).

249 Wenzel, Richard P. & Edmond, Michael B., Infection Control: the Case for Horizontal Rather than Vertical Interventional Programs, 14S4 Int’l J. Infectious Diseases S3, S3 (2010)Google Scholar.

250 Id.

251 See Nosocomial definition, Academic Dictionaries and Encyclopedias, http://medicine.academic.ru/5737/Nosocomial [http://perma.cc/M2DS-WAH4] (“Nosocomial: Originating or taking place in a hospital, acquired in a hospital, especially in reference to an infection. The term ‘nosocomial’ comes from two Greek words: ‘nosus’ meaning ‘disease’ + ‘komeion’ meaning ‘to take care of.’ Hence, ‘nosocomial’ should apply to any disease contracted by a patient while under medical care. However, ‘nosocomial’ has been whittled down over the years and now just refers to hospitals — it is now synonymous with hospital-acquired.”).

252 See Wenzel & Edmond, supra note 249, at S3.

253 Amanda Cassidy, Medicare’s Hospital-Acquired Condition Reduction Program, Health Affairs: Health Policy Brief 1, 1 (Aug. 6, 2015), http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_142.pdf [http://perma.cc/6N5X-69XL]; see also CMS, Hospital-Acquired Conditions, CMS.Gov (Aug. 19, 2015, 8:02 AM), http://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitalacqcond/hospital-acquired_conditions.html [http://perma.cc/MF3E-EFT7] (providing a list of examples of HACs recognized by CMS).

254 See CMS, Hospital-Acquired Conditions, supra note 253 (listing various Surgical Site Infections, which fall under the broader “Hospital–Acquired Conditions” category).

255 CMS, Hospital-Acquired Conditions (Present on Admission Indicator), CMS.Gov (Sept. 29, 2014, 3:49 PM), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalAcqCond/index.html?redirect=/hospitalacqcond/06_hospital-acquired_conditions.asp [http://perma.cc/5XDL-VJ94]; CMS, Coding, CMS.Gov (Aug. 20, 2015, 8:44 AM), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalAcqCond/Coding.html [http://perma.cc/4EKJ-UYPP].

256 Ruth L. Kleinpell et al., Patient Safety and Quality: An Evidence-Based Handbook for Nurses, Chapter 42: Targeting Healthcare-Associated Infections: Evidence-Based Strategies (Ronda G. Hughes ed., 2008), http://www.ncbi.nlm.nih.gov/books/NBK2632/ [http://perma.cc/JPA3-KZLR].

257 Kipping, Ruth et al., North Somerset Council, Health Protection: Infectious Diseases 1, 11 (2014)Google Scholar, http://www.n-somerset.gov.uk/wp-content/uploads/2015/11/health-protection-and-infectious-diseases-chapter.pdf [http://perma.cc/7G3W-AF77].

258 See Public Health Eng., Healthcare Associated Infections (HCAI): Guidance, Data and Analysis, GOV.UK (July 31, 2014), http://www.gov.uk/government/collections/healthcare-associated-infections-hcai-guidance-data-and-analysis [http://perma.cc/6KQZ-ZY6A] (using the term “healthcare associated infections” rather than “hospital acquired infections”); Rob Carr et al., Healthcare Associated Infection Operational Guidance and Standards for Health Protection Units 1, 4 (2012), http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332051/HCAI_Operationalguidancefinalamended_05July2012.pdf [http://perma.cc/3Y99-CX8Q] (“The term HCAI covers a wide range of infections … [including those contracted] as a direct result of healthcare delivery in the community, [and] as a result of an infection originally acquired outside a healthcare setting … and brought into a healthcare setting by patients, staff or visitors and transmitted to others within that setting.”)

259 See Pub. Health Eng., supra note 258 (including an instructional section on infection prevention and control in “care homes”).

260 See Carr, supra note 258, at 14 (noting that “[t]he effectiveness of HPA surveillance systems … depends entirely on the ability of providers to … routinely report [cases of infection] to the HPA”).

261 See Pub. Health Eng., MRSA, MSSA and E. Coli Bacteraemia and Clostridium Difficile Infection: Annual Data for Independent Sector Healthcare Organisations, GOV.UK (Oct. 6, 2015), http://www.gov.uk/government/statistics/mrsa-mssa-and-e-coli-bacteraemia-and-clostridium-difficile-infection-annual-data-for-independent-sector-healthcare-organisations [http://perma.cc/Q9GD-MU5K].

262 See Carr, supra note 258, at 16-17.

263 See CMS, Hospital-Acquired Conditions, supra note 253.

264 Standards FAQ Details: Surveillance Requirements for CAUTI, Joint Comm’n (July 18, 2011), http://www.jointcommission.org/standards_information/jcfaqdetails.aspx?StandardsFAQId=442 (noting that “[u]rinary tract infections are the most common type of healthcare-associated infection, accounting for more than 30% of infections reported by acute care hospitals”).

265 See Jim O’Neill, The Economic Consequences of Drug Resistance, World Econ. Forum (Dec. 12, 2014), http://www.weforum.org/agenda/2014/12/the-economic-consequences-of-drug-resistance [http://perma.cc/W2ZD-PYMV].

266 How a Robot is Helping Reduce Hospital-Borne Infections, Robert Wood Johnson Found. (Feb. 20, 2014, 4:15 PM), http://www.rwjf.org/en/blogs/new-public-health/2014/02/how_r2d2_is_helping.html [http://perma.cc/DZ64-WNW3].

267 See Narrow-Spectrum UV Light May Reduce Surgical Infections & Hydrogen Peroxide Vapor Enhances Hospital Disinfection, supra note 70.

268 See Hydrogen Peroxide Vapor Enhances Hospital Disinfection, supra note 70.

269 See U.S. Nat’l Libr. of Med., MRSA, supra note 71 (“Serious staph infections are more common in people with chronic (long-term) medical problems.”).

270 See Minnesota Department of Health, Causes and Symptoms of HA-MRSA, Minnesota.Gov, http://www.health.state.mn.us/divs/idepc/diseases/mrsa/hamrsa/basics.html [http://perma.cc/SJ9L-F3TY] (noting that “[h]ospitalized patients are at increased risk for MRSA infection” because “[m]any hospitalized patients are taking antibiotics that can decrease the normal flora found on the body, giving MRSA strains an advantage,” and “[m]any patients in hospitals have breaks in their skin … that can allow bacteria to enter underlying tissues or the bloodstream”).

271 See Beam, Joel W. & Buckley, Bernadette, Community-Acquired Methicillin-Resistant Staphylococcus aureus: Prevalence and Risk Factors, 41 J. Athletic Training 337, 337 (2006)Google Scholar (“The risk factors identified were recent hospitalization…. chronic illness, injection drug use.”); Navy Envtl. Health Ctr., Guidelines for the Management of Community-Acquired Methicillin-Resistant Staphylococcus Aureus (CA-MRSA) Infections in the US Navy and Marine Corps, 1, 5 (2005), http://fhp.osd.mil/pdfs/CA-MRSAguidelines.pdf [http://perma.cc/4CNR-GZ7M] (“Staphylococcal colonization occurs more commonly in injection drug users, individuals with type 1 diabetes, hemodialysis patients, persons with acquired immunodeficiency syndrome (AIDS), surgical patients, and previously hospitalized patients.”).

272 U.S. Dep’t of Health and Human Servs., Preserving Health and Prolonging Life for People with HIV (Aug. 20, 2015), http://www.nih.gov/research-training/preserving-health-prolonging-life-people-hiv [http://perma.cc/8Q2E-F6WA].

273 See generally Marciarille, supra note 199, at 62 (arguing that Medicare hospital discharge “is not designed to promote successful community re-entry or reduce hospital recidivism”).

274 Id. at 43 (noting that “[w]ell into the twentieth century, the dominant model was for patients to experience their general acute care illnesses at their homes,” but that “a different hospitalization and post-hospitalization model ha[s] grown up in an attempt to mediate the relationships between the hospital, the family, and other social service institutions outside the hospital”).

275 See generally Sydnor, Emily R. M. & Perl, Trish M., Hospital Epidemiology and Infection Control in Acute-Care Settings, 24 Clinical Microbiology Rev. 142, 144 (2011)Google Scholar (reporting that “[r]oughly 25% of nosocomial infections occur in intensive care units (ICUs)”).

276 Beam & Buckley, supra note 271, at 338 (“recent outbreaks of CA-MRSA have been reported … among athletic teams”); Navy Envtl. Health Ctr., supra note 271, at 5 (“Military conditions often involve prolonged close contact between individuals. These close contact situations, combined with lapses in personal hygiene (particularly in the recruit and deployed settings) are an ideal environment for CA-MRSA transmission.”).

277 See generally Kevin Cullinan & Martha Wolf, The Patient Room: What is the Ideal Solution?, Planning and Managing the Workplace: Evidence-Based Design and the Organizational Ecology of Healthcare Environments, Cornell University, 1, 23-29 (2010), http://iwsp.human.cornell.edu/files/2013/09/The-patient-room-what-is-the-ideal-solution-26h3eox.pdf [http://perma.cc/8GRX-M98H] (discussing single versus multi-patient rooms).

278 See Stryjewski, Martin E. & Chambers, Henry F., Skin and Soft-Tissue Infections Caused by Community-Acquired Methicillin-Resistant Staphylococcus aureus, 46 Clinical Infectious Diseases S368, S369 (2008)Google Scholar (noting that “CA-MRSA infections have been reported in … tattoo recipients” and that “[t]ransmission has occurred through activities in which direct contact and turf abrasions are common—for example, among football players, [and] wrestlers”).

279 See generally, Waging War Against Drug Resistant Bacteria, Robert Wood Johnson Found. (Oct. 7, 2013), http://www.rwjf.org/en/about-rwjf/newsroom/newsroom-content/2013/10/waging-war-against-drug-resistant-bacteria.html [http://perma.cc/XV6V-ABSJ] (“We were seeing MRSA in subjects who had never been hospitalized.”).

280 Measuring Healthcare: Need to Know, Economist (Feb. 1, 2014), http://www.economist.com/news/international/21595474-improve-health-care-governments-need-use-right-data-need-know.

281 See Siegel, Jane D. et al., CDC, Management of Multi-Drug Resistant Organisms In Healthcare Settings 1, 7 (2006)Google Scholar, http://www.cdc.gov/hicpac/pdf/guidelines/MDROGuideline2006.pdf [http://perma.cc/56W8-CUNB] (“Hospitalized patients, especially ICU patients, tend to have more risk factors than non-hospitalized patients do, and have the highest infection rates.”).

282 Huang, Susan S. et al., Targeted Versus Universal Decolonization to Prevent ICU Infection, 368 New Eng. J. Med. 2255 (2013)Google Scholar.

283 Id. at 2255.

284 Angier, supra note 27 (“Through ultrafast gene sequencing and targeted gene silencing techniques, researchers have identified genes critical to viral infection and drug resistance. ‘We’ve discovered viruses we didn’t even know existed,’ Dr. Freed said.”).

285 Austin Frakt & Aaron E. Carroll, Can This Treatment Help Me? There’s a Statistic for That, N.Y. Times (Jan. 26, 2015), http://www.nytimes.com/2015/01/27/upshot/can-this-treatment-help-me-theres-a-statistic-for-that.html (noting that in his 2015 State of the Union address, “President Obama encouraged the development of ‘precision medicine,’ which would tailor treatments based on individuals’ genetics or physiology”).

286 See Hyman, David A. & Silver, Charles, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid, 59 Vand. L. Rev. 1085, 1086 (2006)Google Scholar (noting that the tort system “rather than motivating providers to do better … paralyzes them with fear and causes them to hide their mistakes”); Hyman, David A., Healthcare Fraud and Abuse: Market Change, Social Norms, and the Trust “Reposed in the Workmen”, 30 J. Legal Stud. 531, 533 (2001)Google Scholar (arguing that “addressing the problem of healthcare fraud and abuse” is “considerably more difficult than condemning it”).

287 See Julie Appleby, Government to Grade Nursing Homes on Tougher Scale, Kaiser Health News (Feb. 12, 2015), http://khn.org/news/government-to-grade-nursing-homes-on-tougher-scale/ [http://perma.cc/9SQM-ZLQ8].

288 See Aaron Carroll, We Really Want to Pay for Quality, But It’s So Darn Hard, Incidental Economist (Feb. 7, 2015), http://theincidentaleconomist.com/wordpress/academyhealth-we-really-want-to-pay-for-quality-but-its-so-darn-hard/ [http://perma.cc/62JF-S9M3]; Tobel, Andrew, Admitting the Problem With the Hospital Readmissions Reduction Program, 8 AHLA J. Health & Life Sci. L. 45, 68–73 (2015)Google Scholar (providing an assessment of just how difficult it can be to lower some pay for performance measures, like re-admissions rates).

289 The Affordable Care Act has created a “Hospital Readmissions Reduction Program” to reduce payments to hospitals based on patient readmission rates. Patient Protection and Affordable Care Act, 42 U.S.C. § 1395ww(p) (2012). The Act also has a “Payment Adjustment for Hospital Acquired Conditions” section, which imposes penalties on the twenty-five percent of hospitals whose rates of hospital-acquired conditions are the highest. 42 U.S.C. § 1395ww(p). In addition, the Secretary of Health and Human Services is required to establish a “Hospital Value-Based Purchasing Program” (“VBP Program”) that links physician reimbursements to value in care. 42 U.S.C. § 1395ww(o).

290 See CDC, Emerging and Zoonotic Infectious Diseases, CDC.Gov (2016), http://www.cdc.gov/budget/documents/fy2017/ezid-factsheet.pdf [http://perma.cc/7FK9-X6X4].

291 See CDC, What is NHSN?, CDC.Gov (Oct. 15, 2015), http://www.cdc.gov/nhsn/about-nhsn/index.html [http://perma.cc/35DL-7K6V]; see also Maron, supra note 221 (“The [CDC] also requested an increase of about $12.5 million for improvements to the National Healthcare Safety Network, which provides an integrated reporting system for healthcare-associated infections.”).

292 See infra Part V.B.

293 See, e.g., Comprehensive Infection Prevention Strategies, Infection Control Today, http://sd.infectioncontroltoday.com/galleries/2015/03/comprehensive-infection-prevention-strategies.aspx?pg=5#gallery [http://perma.cc/9L2A-42T7].

294 See Maron, supra note 200 (“At the Massachusetts Avenue Surgery Center [in Bethesda, Maryland] …, a registered nurse is charged with splitting her time between acting as a postanesthesia care unit nurse and acting as the facility’s infection control manager.”).

295 Maron, supra note 221 (“Hospital patients … should insist everyone wash their hands before touching them.”).

296 Ottum, Andrew et al., Engaging Patients in the Prevention of Health-Care Associated Infections: A Survey of Patients’ Awareness, Knowledge, and Perceptions Regarding the Risks and Consequences of Infection with Methicillin-Resistant Staphylococcus Aureus and Clostridium Difficile, 41 Am. J. Infection Control 322, 323 (2013)Google Scholar (finding that “hand hygiene programs that emphasize patient empowerment and encourage patients to participate in their care have effectively improved compliance with hand hygiene among healthcare workers”); see also Allegranzi, Benedetta et al., Status of the Implementation of the World Health Organization Multimodal Hand Hygiene Strategy in United States of America Healthcare Facilities, 42 Am. J. Infection Control 224, 227 (2014)Google Scholar (noting that “[a]nother element with the potential to make a significant contribution to the creation of a safety climate is patient involvement”).

297 See Protect Yourself Against Healthcare-Associated Infections (HAIs), Patient Care Link, http://www.patientcarelink.org/uploadDocs/1/Massachusetts-Consumer-HAI-Basics.pdf [http://perma.cc/3KM2-78MT] (providing questions for patients to ask healthcare providers to help protect themselves against HAIs). Note that the suggested questions require patients to have a degree of strength, alertness, and awareness that very sick patients may not have. Id.

298 See Pauline W. Chen, Afraid to Speak Up at the Doctor’s Office, N.Y. Times: Well (May 31, 2012, 12:01 AM), http://well.blogs.nytimes.com/2012/05/31/afraid-to-speak-up-at-the-doctors-office/.

299 Cimiotti, Jeannie P. et al., Nurse Staffing, Burnout, and Healthcare–Associated Infection, 40 Am. J. Infection Control 486, 488 (2012)Google Scholar (noting the relationship between nursing burnout and staffing patterns to the incidence of certain infections).

300 Dep’t for Professional Emps., AFL-CIO, Safe-Staffing Ratios: Benefiting Nurses and Patients, Fact Sheet 2014 1, 2 (2014), http://dpeaflcio.org/programs-publications/issue-fact-sheets/safe-staffing-ratios-benefiting-nurses-and-patients/ [http://perma.cc/2NY8-ECPR] (noting that “[h]igh nurse-to-patient ratios are associated with an increase in medical errors, as well as patient infections, bedsores, pneumonia, MRSA, cardiac arrest, and accidental death”).

301 Michaelsen, Kaarin et al., Overcoming Patient Barriers to Discussing Physician Hand Hygiene: Do Patients Prefer Electronic Reminders to Other Methods?, 34 Infection Control & Hosp. Epidemiology 929 (2013)Google Scholar (noting little likelihood of patients chastising healthcare personnel for not washing their hands).

302 See generally Jennifer Lenz, Alana Burke & Karen Onstad, National Committee for Quality Assurance, Value Judgment: Helping Healthcare Consumers Use Quality and Cost Information, Cal. Healthcare Found.: Issue Brief 1 (Dec. 2012) (proposing that “[i]nformed consumers, armed with information on value, may help elevate the importance of value in healthcare by shopping for and choosing providers and health plans that provide high-quality, low-cost care”); Sharon B. Arnold, Improving Quality Healthcare: the Role of Consumer Engagement, Robert Wood Johnson Found., Academy Health: Issue Brief 1 (Oct. 2007), http://www.academyhealth.org/files/issues/ConsumerEngagement.pdf [http://perma.cc/XF9F-2PKH] (discussing “Hibbard’s Patient Activation Measure (PAM) that assesses patients’ knowledge skill and confidence in managing their health and healthcare” as they become “fully competent managers of their own health and healthcare”).

303 See World Health Org., WHO Guidelines on Hand Hygiene in Healthcare (2009), http://apps.who.int/iris/bitstream/10665/44102/1/9789241597906_eng.pdf [http://perma.cc/UZ36-H3VU].

304 See Allegranzi, supra note 296, at 224 (noting that “compliance with recommended hand hygiene practices by healthcare workers (HCW) is unacceptably low”).

305 See id. at 225 (noting that “[o]verall, 77.5% of facilities reported that alcohol-based handrub is continuously available facility wide at each point of care”).

306 See CMS, Hospital-Acquired Conditions (Present on Admission Indicator), supra note 255 (stating that “[f]or discharges occurring on or after October 1, 2008, hospitals will not receive additional payment for cases in which one of the selected conditions was not present on admission”).

307 Id.

308 See CDC, Healthcare-Associated Infections, supra note 12 (noting a “50 percent decrease in central line-associated bloodstream infections (CLABSI) between 2008-2014,” and “no change in overall catheter-associated urinary tract infections (CAUTIs) between 2009 and 2014”).

309 See CMS, Hospital-Acquired Conditions (Present on Admission Indicator), supra note 255 (noting that CMS only required hospitals to “report present on admission information” starting in October of 2007).

310 Lee, Grace M., Effect of Nonpayment for Preventable Infections in U.S. Hospitals, 367 New Eng. J. of Med. 1428, 1428 (2012)Google Scholar (finding “no evidence that the 2008 CMS policy to reduce payments for central catheter-associated bloodstream infections and catheter-associated urinary tract infections had any measurable effect on infection rates in U.S. hospitals”).

311 Id. at 1435 (noting that, although the study focuses on nonpayment for HACs, “[g]reater financial penalties might induce a greater change in hospital responsiveness to the CMS policy”).

312 Id. at 1428.

313 Id. at 1429.

314 Id.

315 See generally Richard D. Miller, Jr. et al., Readmissions Due to Hospital-Acquired Conditions (HACs): Multivariate Modeling and Under-Coding Analyses, RTI Int’l (Sept. 2012), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalAcqCond/Downloads/Final-Report-Readmissions.pdf [http://perma.cc/7JMX-RAZ3 http://perma.cc/7JMX-RAZ3] (project funded by CMS) (“Between FY 2009 and FY 2010, we did not discover any large changes in the readmission rates for any of the HACs.”).

316 See CMS Hospital-Acquired Condition Reduction Program (HACRP), CMS.Gov (Feb. 4, 2016, 1:52 PM), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/HAC-Reduction-Program.html [http://perma.cc/WA7P-VJSF].

317 See CMS, Hospital-Acquired Conditions, supra note 253 (listing the HAC qualifying diagnoses).

318 See CMS, Hospital-Acquired Conditions (Present on Admission Indicator), supra note 255.

319 Id.

320 See Prospective Payment Systems for Inpatient Hospital Services, 42 C.F.R. § 412.48 (2009).

321 See CMS, Hospital-Acquired Conditions, supra note 253.

322 See Data Sources, Medicare.gov Hospital Compare, http://www.medicare.gov/hospitalcompare/Data/Data-Sources.html [http://perma.cc/CC5U-495W].

323 See 42 U.S.C. 1395ww(p); see also Prospective Payment Systems for Inpatient Hospital Services, 42 C.F.R. § 412.172 (2015); CMS Hospital-Acquired Condition Reduction Program (HACRP), supra note 316.

324 See 42 U.S.C. § 1395ww(p)(1).

325 CDC, Healthcare-Associated Infections, supra note 12.

326 42 C.F.R. § 412.172 (2015).

327 As compared to Readmissions and VBP Programs, where the payments are based upon Diagnosis Related Groups (DRGs). See, e.g., 42 U.S.C. § 1395ww(o).

328 Compare 42 U.S.C. § 1395ww(p) (penalizing hospitals for excess HACS) with § 1395ww(o) (establishing value-based incentives for hospital payments).

329 See CMS, Hospital Value-Based Purchasing, CMS.Gov (Oct. 30, 2015), http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/hospital-value-based-purchasing/index.html?redirect=/Hospital-Value-Based-Purchasing/ [http://perma.cc/N4JT-T6PW].

330 See Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System and Fiscal Year 2015 Rates, 79 Fed. Reg. 49,853, 50,090 (Aug. 22, 2014) (“For FY 2015, we will keep CDC’s NHSN CAUTI and CLABSI measures in Domain 2 as they are currently endorsed.”); see also Hospital-Acquired Condition (HAC) Reduction Program, QualityNet http://www.qualitynet.org/dcs/ContentServer?c=Page&pagename=QnetPublic%2FPage%2FQnetTier3&cid=1228774294977 [http://perma.cc/TKA3-LCQN].

331 See Susan Morabit, NHSN Bloodstream Infection Surveillance in 2015, CDC, 6-34 (Feb. 19, 2015), http://www.cdc.gov/nhsn/pdfs/training/2015/clabsi-2015.pdf [http://perma.cc/VP4P-2JUB].

332 See id. at 64-77.

333 See generally id.

334 Agency for Healthcare Research and Quality, Interim Update on 2013 Annual Hospital-Acquired Condition Rate and Estimates of Cost Savings and Deaths Averted From 2010 to 2013 16-17 (Nov. 2015), http://www.ahrq.gov/sites/default/files/wysiwyg/professionals/quality-patient-safety/pfp/interimhacrate2013.pdf [http://perma.cc/5EVD-BU77].

335 Id. at 12. The update also notes that the lack of adequate studies makes it difficult to understand whether the harm reduction interventions are the actual cause of any reduction in HACs. See Sabriya Rice, Despite Progress on Patient Safety, Still a Long Way Across the Chasm, Modern Healthcare (Dec. 6, 2014), http://www.modernhealthcare.com/article/20141206/MAGAZINE/312069987 [http://perma.cc/JQ82-7TZ7] (“But quality metrics experts say the lack of well-defined studies make it … difficult to know whether interventions to reduce other infections produce the intended impact.”).

336 Rice, supra note 335.

337 Stone, supra note 165.

338 Internationally Focused Commission on Antimicrobial Resistance Announced by PM, Wellcome Trust (July 2, 2014), http://www.wellcome.ac.uk/News/Media-office/Press-releases/2014/WTP056762.htm [http://perma.cc/H7SE-CAL8].

339 Novel Approaches to Characterizing and Tracking the Global Burden of Antimicrobial Resistance, Bill & Melinda Gates Found., http://gcgh.grandchallenges.org/challenge/novel-approaches-characterizing-and-tracking-global-burden-antimicrobial-resistance-round [http://perma.cc/8J2H-93E8].

340 See Sarah Childress, Ramanan Laxminarayan: the Global Reach of Resistance, PBS Frontline (Oct. 22, 2013), http://www.pbs.org/wgbh/frontline/article/ramanan-laxminarayan-the-global-reach-of-resistance/ [http://perma.cc/R9AL-CJWZ] (“This is a problem of shared commons, so just like each of us could choose to drive a car, and that contributes to global warming but we don’t really see the connection, in the same way, we could choose to overuse antibiotics in our own lives, and that has global consequences.”).

341 Dr. Lance B. Price, Microbiolgist from the Translational Genomics Research Institute, excerpt from RESISTANCE (Uji Films 2014) (excerpt available at http://www.youtube.com/watch?v=_6bcP0f82qY&feature=youtu.be).

342 See, e.g., Theresa Wizemann et al., Rapid Medical Countermeasure Response to Infectious Diseases: Enabling Sustainable Capabilities Through Ongoing Public- and Private- Sector Partnerships 1 (Nat’l Acad. of Sci. 2016) (quoting the following excerpt from the Office of the Assistant Secretary for Preparedness and Response’s (ASPR’s) National Health Security Strategy: “As the movement of people, goods, and services across borders increases, our national health security is increasingly dependent on global health security.”).

343 Trisolini, Michael G., Introduction to Pay for Performance, in Pay for Performance in Healthcare: Methods and Approaches 7 (Cromwell, Jerry et al., eds. 2011)Google Scholar.

344 See Patrick H. Conway et al., The Core Quality Measures Collaborative: A Rationale and Framework for Public-Private Quality Measure Alignment, Health Affairs Blog (June 23, 2015), http://healthaffairs.org/blog/2015/06/23/the-core-quality-measures-collaborative-a-rationale-and-framework-for-public-private-quality-measure-alignment/ [http://perma.cc/5PRE-2TCC].

345 See discussion of burial rituals involving prolonged close contact with dead bodies, supra note 137.

346 See Schaffner, supra note 218.

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Managing Our Microbial Mark

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