MRSA Litigation

Guest Speaker's Talk

Phil Barnes Anthony Collins Solicitors

MRSA ACTION UK AGM 

There are two general types of clinical negligence claims involving MRSA, namely:

1.      The negligent treatment of MRSA infection (including a negligent delay in diagnosing an infection);

2.      The negligent contraction of MRSA infection.

Negligent Treatment/Diagnosis of MRSA infection

In respect of the negligent treatment of MRSA infection, these cases are pursued using traditional clinical negligence principles.

In a Clinical Negligence Claim the burden is on the Claimant to prove on the balance of probabilities (51% or more) that the treatment received or the failure to provide treatment was negligent and that negligence caused an injury or loss that would not have otherwise occurred.

Breach of Duty

In order to prove "breach of duty" in a clinical negligence claim, the Claimant must prove that no reasonable or responsible body of medical practitioners practising in that particular field at that time would have administered or failed to administer the treatment. (Bolam Test).

In order to establish "breach of duty" the Claimant and the lawyers are reliant on expert medical opinion to confirm the standard of treatment that should have been provided and whether the treatment that was given or not given fell below that standard

If "Breach of Duty" can be established it is then necessary to establish that that breach of duty "caused" the injury and loss.

Causation

The Claimant must show that as a result of the breach of duty of care owed to him he has suffered an injury and loss (actual damage) that would nor have otherwise occurred. In other words "but for" the negligent act the injury and loss would not have occurred. The injury that occurred must also come within the foreseeable area of risk created by the negligence

The issue of causation causes a number of problems in clinical negligence cases because the etiology of medical conditions is often unclear and because the situation is often complicated by the presence of an underlying illness or pre-existing vulnerabilities.

In order to prove causation the success of the Claimant's case is heavily reliant on medical expert opinion to confirm whether the treatment given or the failure to give treatment caused or materially contributed to the injury.

Both "breach of duty" and "causation" must be established for a claim to be successful.

Negligent Contraction of MRSA

In terms of the negligent contraction of MRSA, claims have been brought in the past using traditional negligence principles only.

To succeed in a claim brought in negligence the Claimant would need to establish:

1. That on the balance of probabilities the MRSA infection was contracted in the hospital

2. That acquiring of the MRSA infection and the resulting injury was foreseeable

3. That the standard of care was unacceptable (Bolam Test)

4. That "but for" the Defendant's negligence the MRSA infection would not have been contracted and the injury would not have occurred (Causation).

The first point to make in terms of these cases is that cases are only likely to succeed if the Claimant is infected with MRSA as opposed to being colonised with MRSA. It is estimated that up to 30 % of the population carry MRSA but are not infected. People can be colonised with MRSA without any adverse or significant medical problems occurring, it is only once that MRSA breaks the skin barriers and enters the blood stream and becomes an infection that serious injuries and death may occur.

The second point to make is that it must be established, on the balance of probabilities, that the Claimant acquired the MRSA infection in the healthcare setting. If on admission to hospital a screening swab was carried out to determine whether the patient was carrying MRSA and the swab was negative this is good evidence that the MRSA was acquired in the healthcare setting. If no such evidence is available it may be difficult to establish that the MRSA was contracted in the healthcare setting as there is no evidence to show that the patient was not a carrier and self-infected. Unfortunately, screening of all patients is not carried out as routine.

If there is evidence that the MRSA was acquired in the healthcare setting, the next stage is to establish that the MRSA was acquired as a result of substandard care (the Bolam Test). The difficulty in proving that it was negligently contracted is that there is often very little or no evidence in the medical records to record what the nursing staff, Doctors were doing in terms of hygiene practices. The evidence comes solely from witness evidence provided by the patient, family members and other patients. This evidence is likely to be contested and denied by the hospital and it is then a matter for a Judge to decide as to whether he accepts the evidence. To assist the Claimant copies of infection control policies and minutes and infection rates are obtained to establish whether there were any reported failures of infection control practices at that time.

Proving "breach of duty" and establishing foreseeability can be difficult.

Once a breach of duty has been established, the more difficult task faced by the Claimant is proving causation. That is proving that the negligent hygiene practices caused the patient to contract the MRSA infection and the infection was not acquired by other non-negligent means and that "but for" acquiring the MRSA infection the patient would not have suffered injury and harm. Expert evidence is needed to support causation.

Whilst proving cases using negligence alone is difficulty it is not impossible. It is important to obtain reliable witness evidence and the correct documentation and instruct the appropriate experts.

The main difficulty of proving a claim using common negligence principles is that the burden of proof is on the Claimant. Consequently, lawyers are now approaching the contraction of MRSA cases from a different perspective. Traditionally these claims have been regarded as clinical negligence claims and were pursued using traditional clinical negligence principles. However it is now being argued that healthcare acquired MRSA is an acquired disease rather than a medical accident.

COSHH Regulations

The purpose of considering pursuing these cases as disease cases is so that reliance can be placed on the provisions of the Control of Substances Hazardous to Health Regulations (COSHH).

The benefit of applying the COSHH regulations to these cases is that whilst it is still necessary for the Claimant to prove that the infection was acquired in the hospital, if that is established:

1. There is no foreseeability test - It is not necessary for the Claimant to prove that the injury was reasonably foreseeable.

2. The duties under the regulations are strict and purposive

3. The burden of proving that the duties have been complied with is on the defendant.

4. The causation test is the "material increase in risk" test and not the "but for" test.

The issue of whether COSHH applies to MRSA in patients has not been tested in the Courts, however an analysis of the Regulations would suggest that there are good arguments that the Regulations are intended to apply to MRSA cases.

Is MRSA a substance hazardous to health?

The COSHH regulations 2002 at Regulation 2(1) makes the following definitions:

"Substance hazardous to health" means a substance (including a preparation)

(c) which is a biological agent.

A "biological agent" means a micro-organism, cell culture, or human endoparasite, whether or not genetically modified, which may cause infection, allergy, toxicity or otherwise create a hazard to human health

A "micro-organism" means a microbiological entity, cellular or non-cellular, which is capable of replication or of transferring genetic material

MRSA falls within the definition of a micro-organism and that is defined as a biological agent which is defined in the regulations as a substance hazardous to health.

In addition, in the approved classification of Biological Agents prepared by the Health and Safety Commission Staphylococcus Aureus is included as a Biological Agent to which the regulations apply.

Does the COSHH regulations apply in this instance?

The Regulations were brought in as a means of protecting workers from the risks related to the exposure to physical, chemical or biological agents during the course of their employment.

Regulation 2(2) provides:

"In these Regulations, a reference to an employee being exposed to a substance hazardous to health is a reference to the exposure of that employee to a substance hazardous to health arising out of or in connection with work at the workplace"

Claimant lawyers will argue that provisions in the Regulations suggest that the risk of infection from exposure to MRSA is covered by the COSHH regulations.    In respect of employees, ie healthcare staff, regulation 2(2) above provides that any reference to exposure to a substance hazardous to health includes reference to exposure "arising out of or in connection with work at the workplace". The words "in connection" suggest that it does not need to be directly linked to work with MRSA. Also the definition of substance hazardous to health includes the words "and the way it is used or is present at the workplace". This wording again suggests that the Regulations purpose was to protect employees from the presence of MRSA in the workplace.

The Defendants argue that the Regulations only apply to "work with" biological agents and not to MRSA that happened to be present but had no connection to the work being carried out in the workplace ie nursing and medical care.

Does COSHH apply to patients ?

Regulation 3(1) states that:

"Where a duty is placed by these Regulations on an employer in respect of his employees, he shall, so far as is reasonably practicable, be under a like duty in respect of any other person , whether at work or not, who may be affected by the work carried out by the employer"

Regulation 5(1)(c) states that

"Regulations 6 to 13 shall have effect with a view to protecting persons against a risk to their health, whether immediate or delayed, arising from exposure to substances hazardous to health except"

(c) where the risk to health is a risk to the health of a person to whom the substance is administered in the course of medical treatment?

"medical treatment" means medical treatment conducted by or under the direction of a registered medical practitioner and includes any such examinations or treatment conducted for the purpose of research

The interpretation by Claimant lawyers of the wording of the regulations is that it does apply to patients, who will fall within the definition "any other person, whether at work or not, affected by the work of an employee" and MRSA is not a substance that is administered in the course of medical treatment and therefore the Regulations apply.

However, the Defendants argue that MRSA is contracted as a result of administering treatment and therefore is not covered under the regulations.

The issue of the applicability to patients will need to be tested in the Courts.

Duties under the COSHH Regulations

If it is accepted that contracting MRSA in the healthcare setting is covered by the COSHH Regulations and the Regulations apply to patients, the Regulations provide that:

1.      A suitable and sufficient risk assessment must be carried out - evidenced by the presence of Infection Control Policies. (Regulation 6)

2.      The risk of exposure to MRSA is either prevented or where that is not reasonably practicable adequately controlled (Regulation 7 (1))

3.      If exposure cannot be prevented apply protection measures to adequately control the risk of exposure (Regulation 7(3)by:

a. Design and use of appropriate work practices and provision and use of suitable work equipment

b. The control of exposure at source - ie adequate ventilation etc

c. Suitable personal protective measures.

It is the defendant's duty to ensure that it complied with the duties under COSHH and all reasonable practicable steps were taken.

The purpose of COSHH is to reduce the risk of exposure.

To ensure compliance with COSHH healthcare settings will need to demonstrate the that they have:

i. carried out a suitable and sufficient risk assessment and that this is recorded. It is considered that compliance can be demonstrated by the presence of adequate Infection Control Policies which are regularly reviewed

ii. that MRSA is being adequately controlled. This can be demonstrated by way of reporting and keep infection rates and regular audit reports by the infection control team.

If these policies are not in place or are inadequate or there is evidence that they are in place but not being complied with, the Defendant will find it difficult to establish that they are not in breach of the Regulations. Proving "breach of duty" using the COSHH regulations will be easier to prove and obtaining the infection control policies, minutes and audits will provide the Claimant with an indication as to whether the Defendant will be able to demonstrate compliance with the Regulations.

If breach of duty is established all that is then required is for the Claimant to establish that the risk of developing MRSA infection was materially increased by the breach of duty of the Defendant, which is a significantly less burden than proving "but for" the breach the MRSA infection would not have been contracted.

The applicability of the COSHH regulations to MRSA contraction cases has not been tested in the Courts, however, using the argument alongside traditional negligence arguments, will strengthen the Claimant's case.

(c) Phil Barnes Anthony Collins Solicitors