MRSA claims not easy to prove in court

Nov 12 2007 by Our Correspondent, Western Mail

HEALTHCARE-associated infections (HAIs) are rarely out of the news these days. The best known is MRSA, while Clostridium Difficile (C.diff) has also become more prominent of late.

The impression given sometimes is that the NHS, both in England and here in Wales, faces huge numbers of claims for damages arising from patients acquiring such infections.

But that is largely misleading, partly because making a successful claim is far from easy.

Unfortunately, there aren’t necessarily any reliable statistics on the number of claims that are pursued, let alone those that succeed. Certainly, some successful claims have been brought.

But such cases are not as common as one might imagine, and if the NHS had to start paying out compensation to the bulk of patients who actually contracted MRSA, the bill would be astronomical.

In truth, there are many difficulties facing a patient who wishes to bring a claim. For one, it can be hard to show where the patient picked up the infection.

Some patients unknowingly carry the MRSA bug on their skin and may have taken it into hospital themselves. Many people realise that these bacteria are also widely found in the community.

Also, the fact that the patient acquires the infection does not necessarily demonstrate neglect.

Nowadays every health trust has complex protocols in place for the prevention and eradication of the infections, in addition to well-publicised infection control teams. It is therefore not necessarily straightforward to show that the patient became infected through a breach of relevant care and hygiene standards. The hospital may argue it did all it could to prevent it.

Anecdotally, the number of successful claims arising from contracting MRSA is thought to be low. In England, since 2000 the NHS Litigation Authority has paid out on no more than a third of MRSA claims presented to it.

More recently, some attempts have been made to use the Control of Substances Hazardous to Health (COSHH) regulations as the basis for HAI claims.

Using a little lateral thinking, some lawyers have argued that bacteria such as MRSA or C.diff fall within the definition of “a substance hazardous to health”. This being the case, the COSHH regulatory obligations would apply to hospitals in their treatment of patients.

But a case last year suggested that relying on those regulations will not necessarily make these claims much easier to demonstrate, at least in the short term.

Until there is a full-blown trial that decides whether the COSHH regulations truly apply, this will remain a grey area.

In summary, the flood of successful claims arising from MRSA, in particular, has not yet materialised. Indeed, those floodgates may never quite open.

In the meantime, the more hospitals can do to minimise exposure the better for us all.

Ken Thomas is a specialist medical negligence lawyer with South Wales solicitors Harding Evans