Frequently asked questions about legal claims &
healthcare associated infections

This page has been written in response to frequently asked questions that are received in relation to claiming compensation if you have been affected by a healthcare associated infection. Sarah Rowland of Irwin Mitchell has provided some information you may find useful.

Can I claim compensation if I contract MRSA in hospital / a residential home?

There are three possible types of legal claim which can be brought.

1. Negligent acquisition of MRSA

In order to bring a civil claim for compensation, you must be able to prove that:-
a) The infection was acquired in the hospital/residential home
b) The treatment given by the healthcare provider was substandard (negligent)
c) If the treatment had not been substandard, you would not have acquired MRSA
d) The negligence caused you injury and loss

It is not sufficient to show that you contracted MRSA in hospital, because the Courts accept that it is not always possible for hospitals to eliminate MRSA completely. The Court will consider whether the hospital has taken all reasonable precautions to reduce the risk of infection to the lowest possible level. Your solicitors will therefore ask the hospital to disclose documents about its MRSA policies and guidelines, so that they can consider whether there is evidence that the hospital should have done more to reduce the risk of infection.

2. Negligent treatment of MRSA

In order to succeed in this type of claim, you must be able to prove that:-
a) Once you had contracted MRSA, the hospital's management of the infection was substandard (negligent)
b) The negligence caused you injury and loss

These types of claims are based on what happens after a patient contracts MRSA, and whether the infection was treated properly e.g. whether the signs of infection were picked up quickly enough and whether appropriate antibiotics were given.

3. Breach of the COSSH regulations

The Control of Substances Hazardous to Health (COSSH) Regulations 2002 impose a duty to reduce exposure to harmful substances to the lowest possible level. Failing to implement appropriate policies and procedures is a breach of the COSSH Regulations. However, the Courts have not fully considered whether these Regulations apply to patients who have contracted MRSA in hospital/a residential home, so it is not currently clear whether these Regulations will assist if you have contracted MRSA.

What redress is available?

If your claim is successful, the Courts will award financial compensation. The civil Courts do not have the power to take disciplinary action against hospital staff or compel the hospital to change its practices.

How is compensation assessed?

There are 2 parts to the compensation claim:-

1. Damages for pain, suffering and loss of amenity

This award is to compensate you for the injury that you sustained as a result of the negligent treatment. When assessing how much compensation to award, the Court will consider the type of injury, how serious it is and the impact on your everyday life.

2. Damages for financial losses

You will receive an award to reimburse you for any past financial losses that you have incurred as a result of the negligence (e.g. loss of earnings, travel expenses). It is a good idea to keep a record of your financial losses.

You are also entitled to claim for future financial losses that will be incurred (e.g. the value of care which will be provided, the cost of medical treatment, the cost of special aids and equipment). In some cases, expert evidence will be needed to calculate your future needs e.g. from a care expert or accommodation expert.

Can I bring a claim if a relative has died as a result of MRSA infection?

If you have a relative who sadly dies as a result of MRSA infection, you may be able to bring a claim for compensation. This will depend on the nature of your relationship and whether you were financially dependent on the person who has died. The Coroner may decide to hold an inquest to investigate the death. This is completely separate to the civil claims procedure, but you may want to seek legal advice in relation to the inquest, as important evidence sometimes comes to light in the course of that hearing.

What are the time limits for bringing a claim?

The general rule in clinical negligence cases is that Court proceedings must be started within 3 years of you being injured as a result of negligent treatment. In a child's case, this time limit does not start to run until the child reaches 18. It is always best to seek legal advice as soon as possible.

What funding options are available?

Public funding (legal aid) is available for clinical negligence cases, if you are financially eligible. You may have legal expense cover under an insurance policy (e.g. home contents insurance) which will cover the costs of an investigation. Your legal costs may also be covered if you are a member of a Trade Union. It may also be possible to pursue your claim under a conditional fee (no win, no fee) agreement. Your solicitor will be able to advise you on the funding options available.

Sarah Rowland

Irwin Mitchell

Created June 2008

Reviewed August 2021