‘Hospital Superbug’ MRSA is seldom out of the news. The press frequently reports cases of patients infected by this organism, usually with reference to how dirty the hospital was and how no cleaners were seen for the entirety of the patient’s stay. Nevertheless, successful litigation arising from MRSA infection is rare.
Less frequently reported is the fact that staphylococcus aureus, the organism in question, is commonly found on many people. On our skin or in our noses and throats, it is generally harmless, but problems sometimes arise if it gets into a wound. It is usually difficult to prove the source of the infection – was the patient already colonised with it on admission? Did it come from a doctor or nurse? If so, when, and which one? Or did it come from the patient with known MRSA who was not kept in isolation? Even if the source can be identified, it is necessary to prove that the hospital failed to take reasonable care. Did it know it had MRSA on that ward? Did it try to do something about it? Even if it had, would that have prevented the patient from becoming infected? Was the patient at special risk?
Cases that have succeeded have typically done so because investigations have shown a systematic failure – a failure of the hospital’s infection control arrangements - rather than a specific incident. Examination of infection control records may reveal that a hospital knew of a possible problem but failed to institute preventive measures or to isolate patients quickly enough.
Recently attempts have been made to bring claims under the Control of Substances Hazardous to Health Regulations (COSHH), on the basis that MRSA is such a substance. These require the prevention or, where it cannot be prevented, the control of exposure to hazardous substances.
The advantage of using these regulations is that they impose strict liability rather than requiring negligence to be proved – so if a claimant can establish that MRSA was present and was not controlled, the burden then falls on the defendant to prove that it was not reasonably practicable for it to prevent or control the exposure.
At the time of writing, several cases have been reported where claims based on COSHH have been pursued and have settled out of court, but we are not aware of any cases decided after a trial in court on the point. We suspect that this approach may not be the panacea it has been suggested to be – after all, a claimant still has to prove how the exposure to MRSA took place – but we will certainly be monitoring developments with a view to pursuing this line of argument in appropriate cases.
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