MRSA compensation?

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A patient complains that, as a result of contracting MRSA infection following routine surgery for a hernia operation, she has lost out on a lucrative contract for her work as a trainer in a health club. What are the legal consequences?

MRSA and Clostridium difficile have in recent years presented the NHS and other health and social care providers with one of the biggest cross-infection challenges since the health service was established in 1948.

The Department of Health, the Healthcare Commission, the Health Protection Agency, directors of infection prevention and control in England and many others have been involved in strategies for their control and eradication. This is paying off, as MRSA infection rates have halved since 2004.

Healthcare-associated infections remain a very serious threat. Up to 90 patients died between 2004 and 2006 after being infected with C. difficile at the Maidstone and Tunbridge Wells NHS Trust, according to a Healthcare Commission report.

Strategies to reduce cross-infection have included an emphasis on the personal hygiene of all staff and visitors, deep cleaning of hospitals and unannounced spot checks by the Healthcare Commission.

A new super-regulator, the Care Quality Commission, is to be established in April 2009, combining the Healthcare Commission, the Mental Health Act Commission and the Commission for Social Care Inspection. It will have powers to close NHS and private hospitals and residential care homes.

If it can be established that deaths have occurred as a result of corporate failings, then prosecutions can be brought against NHS trusts and other corporate bodies under the Corporate Manslaughter and Corporate Homicide Act 2007.

Is compensation payable for harm suffered by a patient? Actress Leslie Ash received a £5m settlement after she contracted MRSA at the Chelsea and Westminster Hospital. She alleged that MRSA caused her devastating disabilities and meant that she would never again be able to play active roles as an actress. As the case was settled out of court, there was no court ruling on liability.

This may change soon. Elizabeth Miller, a 71-year-old woman, has been given approval to bring a test case against the NHS for allegedly giving her MRSA. She says that she contracted it while recovering from a heart operation at the Glasgow Royal Infirmary. She is claiming £30,000 compensation because she is so ill she can no longer play with her great-grandchildren. The defendants argue that she may have had MRSA before she was admitted.

The patient will have to prove several points if she is to win her case. First, that the hospital owed her a duty of care, then that it was in breach of this duty of care by negligently allowing her to be infected with MRSA and, finally, that as a consequence of this negligence, she has suffered harm, which can include reasonably foreseeable economic loss.

Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

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