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MRSA Article for Solicitor's Journal
A solicitor’s perspective on the practical issues surrounding MRSA cases - by leading Clinical Negligence Specialists Thompsons Solicitors.
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Main legal issues
Two Case Examples
Practical Considerations in Group Litigation
Case Management Issues
As the BBC recently reported, 100,000 people who went into hospital in the last year got an infection there. Of those, 5,000 died. MRSA is regularly in the headlines but little understood. MRSA stands for methicillin-resistant or multiple antibiotic-resistant Staphylococcus aureus. Staphylococcus aureus (sometimes shortened to Staph aureus) are a group of bacteria which are very commonly found on the skin and cause infections. But there are many different types of Staph aureus. The particular type known as MRSA is causing increasing problems because, as the name suggests, it is very resistant to treatment with antibiotics. Even some of our most powerful antibiotics, such as methicillin, can't stop it in its tracks.
This article provides a solicitor’s perspective on the practical issues surrounding MRSA cases including group actions, ranging from collecting evidence to funding cases. It provides not only practical advice and further sources of information, but also illustrates the difficulties by showcasing a number of case histories.
The start point for any MRSA case is the collection of evidence, often in the form of Witness Statements from the Patient and Family. There is of course no substitute for detailed witness statements on perceived shortcomings in hospital cleanliness. General allegations have to be pinned down to specifics instances, with dates, and wherever possible staff names. Dream clients will have kept a diary. The earlier this work is done the more accurate the evidence is likely to be.
When dealing with hospital complaints, it is always necessary to start with a complaint in MRSA and other Hospital acquired infection cases, as it is an effective way of obtaining details of the Hospital’s infection control measures.
The following documents should always be requested:-
1. Minutes of the Control of Infections group meetings for the 6 month period before and after the incident.
2. Lists of patients / wards infected by the particular infection.
3. The Trust’s Infection Surveillance Programme.
4. Protocols regarding wearing of gloves, disposable aprons, ward cleaning and aseptic techniques.
The Department of Heath website (www.dh.gov.uk) shows surveillance figures for Trusts collected in March 2005 and updated in February 2006. There are more general policy documents which might be helpful if dated from before the outbreak in question, as a way of illustrating how aspiration was not met by performance. The current draft code of practice will not assist in proving breach of duty in existing cases but can provide pointers to good practice.
Trusts’ Infection Control Policies are usually general documents and virtually identical, and are not therefore very helpful, although not having a policy at all might be useful evidence. The Trust’s own statistics on MRSA outbreaks are however essential.
Legal aid funding is available. It will require the complaints procedure to have been followed, and prima facie evidence of breach which is likely to mean at least a high number of MRSA patients in that ward or hospital.
The Legal Services Commission has refused to provide generic funding to investigate these claims under the COSHH Regulations, as an alternative to bringing the claim under the Trust’s duty of care to the individual patient. Running the case on a conditional fee agreement is a possibility, though any after-the–event insurer can be expected to take a more than usually cautious approach to accepting the risk and there may need to be a high work-up before an insurance application is accepted.
Breach of duty
For legal purpose, cases involving Hospital acquired infections (HAI), can be broken into two groups.
1. Alleging that the patient contracted a hospital acquired infection because of a substandard failure to take due care.
2. Alleging negligent treatment of an infection once acquired.
Of course there will be many cases where both are a possibility.
As to the first group, where the infection has been acquired through negligence, the following are useful indicators of liability:
Where there was a failure to close wards and a decision to continue to admit patients for elective surgery, or both, in the circumstances of an outbreak of hospital acquired infection.
Where there was a failure to screen patients and staff for infection – in particular, in high risk areas, for example the transplant unit, where patient may be immuno- compromised, the Burns Unit, or the special care baby unit.
Where there was a failure to implement basic infection control measures (e.g. poor ward hygiene, failure to wash hands etc).
Where there was a failure to isolate patients who are at risk of passing on infection – in particular patients with tuberculosis
As evidence of breach of duty, in most cases, independent medical opinion will be needed from a microbiologist, and supporting evidence may also be required from experts in occupational health medicine, communicable disease control and nursing care.
Although these cases are difficult because of the requirement for well documented evidence to support the argument on breach of duty, causation is usually clear cut.
This is in contrast to the group of cases involving failure to diagnose the hospital acquired infection and delay in administering appropriate treatment. The focus of the evidence in these cases is the patient’s medical records. Expert evidence on breach of duty will be provided by an expert in the specialty responsible for the patient’s treatment. Additional experts, notably in microbiology, may be required to support causation.
Frequently causation is the stumbling block in these types of cases as the timing and place of acquisition of MRSA can be difficult to prove, given that it is not confined to the hospital setting. However, as it is now more common to have routine pre-operative screening for MRSA, this may become easier to establish. The expert needs to consider whether on a balance of probability the MRSA infection has led to the injury for which damages are sought. Therefore, the expert needs to consider whether the infection materially affected the outcome.
A 55 year old man developed an MRSA infection following quadruple artery by pass grafting, leading to a plastic surgical repair of the infected median sternotomy incision, where the MRSA had developed.
The Microbiologist concluded that the infection was not the result of negligence; this was despite the fact that antibiotics had not been given pre or post surgery. There was no evidence that antibiotic cover pre-, during and post- surgery prevents infections of the nature that developed.
Although the expert was able to identify when the bacteria entered the wound causing the infection, she concluded that that this could not have been avoided.
The difficulties on causation of running MRSA HAI cases are well illustrated by this case summary.
A young first-time mother at 33 weeks gestation needed an emergency caesarean section for worsening respiratory symptoms. Ventilation in intensive care following the delivery was required, but her condition still deteriorated. By day three, Acute Respiratory Distress Syndrome (ARDS) was diagnosed requiring specialist intensive care and she was therefore transferred to a bed within a larger unit where relatives noted with dismay there was an adjacent MRSA infected patient. By day 15 some improvements were noted but on day 16, MRSA was isolated from sputum and the intravenous line, and thereafter she suffered deterioration, with multi-organ failure and eventual death attributed to sepsis, the cause of being given as Bronchopneumonia and ARDS.
As often occurs with MRSA cases, there were issues about infection control in conjunction with other clinical negligence issues, including delays in undertaking the section and in diagnosing and treating the ARDS. However for these purposes the main issues were the nursing of this critically ill mother adjacent to another patient with MRSA and whether this led to the transfer of the MRSA infection to her.
Experts required - To deal with the MRSA breach of duty and causation issues, a Consultant Respiratory Physician and a Consultant Microbiologist with expertise in infection control were instructed.
Breach of duty and causation - Although the Physician’s view was that it was unacceptable to nurse this patient in close proximity to another MRSA infected patient, our Microbiologist stated that whilst in an ideal situation patients with MRSA should be nursed in single rooms, if such facilities were not available (they were not) the patient could be nursed in the same ward space. This was in line with the Hospital’s infection control policy at the time, which followed policies in other NHS hospitals. The experts all accepted that the source of the mother's MRSA was the second intensive care unit.
The Microbiologist accepted that the most likely cause of the transfer of the infection was from the hands of a healthcare worker and that ineffective hand washing represented a breach of duty of care. However our Microbiologist could not go on support an argument on causation because, as is so often the case, this young mother was so critically ill that on balance she would not have survived even in the absence of her MRSA infection. However if she had survived, but with adverse consequences from the MRSA infection, this would have been a reasonable case.
As hospital acquired infections will often occur in outbreaks due to common factors in that hospital setting, group litigation is a possibility in these cases, and demands special skills.
The scope of cases which might attract a Group Litigation Order are now much more diverse than the traditional large scale product liability claims which tended to be pharmaceutical claims such as Benzodiazapene. In recent years such orders have been sought in litigation involving Gulf War Syndrome and MMR vaccinations. The fact that the three group litigation cases named above failed demonstrates how difficult this type of case can be.
This will be the most important aspect a claimant lawyer will need to consider when setting out in a new group litigation case. The options in an MRSA group action will probably be restricted to Legal Services Commission funding or a Conditional Fee Agreement.
Legal Services Commission funding is available for group litigation and special rules exist for the purpose of such applications. However, the LSC is far more restrictive with applications for funding in group actions than it once was. Many practitioners have reported a “sea change” in the attitude of the LSC towards applications for funding in group litigation. For example, it was the LSC who pulled the financial plug in the Gulf War Syndrome and MMR cases. Any application has to be based on a firm scientific and medical foundation as it will be rigorously scrutinised. Further, you must show that there is a sufficient “wider public interest” which may be difficult if you are acting on behalf of individuals who have suffered an injury at one hospital alone.
Any application to the LSC has to be a tight-rope walking exercise. If the application appears to be too speculative then it will be rejected on the merits criteria. However, if the application demonstrates a claim that is bound to be successful then you may be expected to fund the litigation on a CFA.
Whilst it is, of course, open for any firm to enter into a CFA with a group of clients this should only be entered into after a very full and careful consideration of all the issues involved. One of the most important issues to consider is the availability of After The Event insurance which would pay the costs of the case should it be unsuccessful. The number of firms that have the capacity, experience, expertise and the willingness to take a large financial risk in running group litigation on a CFA is probably quite small.
This is dealt with under CPR Practice Direction 19B which can be found at www.dca.gov.uk/civil/procrules_fin/pdf/practice_directions/pd_part19b.pdf.
An application for a GLO may be made at any time before or after any relevant claims have been issued. Once a GLO has been made a Group Register will be established details of the cases which are the subject of the GLO. A Managing Judge will be appointed soon after any GLO is granted.
Aside from these issues, group litigation will progress much the same as with other litigation with a Managing Judge dealing with directions and trial. The main differences are that:
The Court may specify a date after which no claim may be added to the Group Register unless it gives permission.
The matter will be automatically allocated to the multi-track.
Directions may be given by the Managing Judge regarding common Statements of Case, disposal of common issues and lead cases.
Whatever the intention of streamlining management of group litigation, in practice individual claims tend to progress far more slowly under a group litigation order than in their own time.
There are practical management considerations in conducting this type of litigation. Group litigation is, by definition, a large undertaking both administratively and organisationally. Careful consideration has to be given to training the team of staff responsible, in addition to finding the space, equipment and administrative staff for the task.
Client care can easily be neglected in a group setting. Databases or case management systems have to be set up to ensure that every client is kept fully abreast of all developments, and detailed reports prepared in language comprehensible to frustrated individuals who feel caught up in an impersonal system. Care must be taken to ensure that the particular is not lost in the focus on the general, in case non-standard are swept up in the group issues, and more senior staff time may have to be devoted to this.
Hospital acquired infection has risen and is still rising at present, not least because 60 years of effective antibiotics have led to a loss of the old skills and vigilance in infection control, while bacteria have developed resistance to first line antibiotics. That healthcare systems and professionals may have been slow to catch up means that this is potentially a fruitful field for litigation.
While the general public, informed by the mass media, tends to assume that MRSA infection is a matter of absolute liability, proving when, where and how infection was acquired, and getting supportive evidence of breach of duty and causation can be daunting tasks. The problem is not however insuperable, and a careful approach to identifying and collecting the evidence required, and the funding difficulties, may yield success.