Among physicians there is a belief I frequently encounter in practice: if a patient has suffered harm because of an infection contracted in hospital, liability rests with the hospital, and the doctor has nothing to fear. The belief has some basis in law. Law no. 95/2006 on healthcare reform provides that medical staff are not liable for harm caused by nosocomial infections, alongside working conditions, inadequate equipment or the generally accepted risks of medical procedures. Read in haste, the provision appears to establish immunity. A careful reading, however, reveals something quite different.
The exemption applies only where the harm is due to the infection, that is, where the infection is its cause. It covers the risk that every hospital carries, however well organised, and that the physician cannot control. It does not cover what the physician does or fails to do once the infection has appeared. A delayed diagnosis, a patient left unisolated despite clear signs, or antibiotic treatment that is inappropriate or started too late are acts of the physician. The harm they aggravate can no longer be attributed solely to the pathogen.
Law no. 3/2021 on the prevention, limitation and control of healthcare-associated infections has changed the terms of the problem. It uses the broader concept of healthcare-associated infection and imposes duties of their own on medical staff. The physician must identify manifestations suggestive of such an infection and carry out the necessary diagnostic steps. The physician must also record and report cases and cooperate with the facility's infection prevention and control service. These duties belong to the physician personally, not to the hospital. Failure to comply with them entails administrative sanctions, but the most serious consequence becomes apparent in litigation: it becomes the argument through which the physician's personal fault can be proven.
The practical consequences are broader than many physicians believe. The hospital is indeed liable for nosocomial infections and can defend itself only by proving an external cause beyond its control. The fact that the patient sues the hospital, however, does not take the physician out of the picture. The physician may be sued jointly with the facility, may be brought into the proceedings by the hospital through a third-party claim, or may later face a recourse action. Moreover, the exemption in Law no. 95/2006 concerns civil liability only. It does not prevent disciplinary proceedings before the College of Physicians and has no effect whatsoever on criminal liability for negligent homicide or negligent bodily harm.
There is, nevertheless, good news for the physician, and it too lies in Law no. 3/2021. The same duties that may expose the physician also constitute the strongest defence. A physician who detected the infection in time, isolated the patient, treated them in accordance with protocols, reported the case and recorded all of this in the medical chart can show that the harm is indeed due to the infection. Likewise, where the hospital fails to provide the necessary means, reporting the shortcomings in writing shifts the risk to where the law places it, namely to working conditions. Without documentation, systemic deficiencies and personal fault become difficult to distinguish before an expert or a judge.
The protection afforded by Law no. 95/2006 is real, but it works only for the physician who can prove their diligence. The risk of infection remains with the hospital, while the way the physician manages it is a matter of their own responsibility.