MRSA Compensation claims: just another example of negligent care?'
23/08/2004
May I thank you for the way my accident claim has been handled, after my accident my confidence was very low indeed but the sympathetic handling of my case restored my confidence.
John, Sheffield
Clinical negligence specialist and Partner Lindsay Wise questions whether 'MRSA contamination claims are just another example of negligent care?' Published this week on The Lawyer's online Law Zone.
The rise in hospital-superbug infections may have led to an increase in personal injury claims against NHS trusts but Lindsay Wise, of Alexander Harris, says that establishing causation is often the main obstacle to successful claims and that greater emphasis should be put on preventive measures.
Approximately 1 in 9 patients contracts an infection during hospital stays. Risk factors for infection include implants, diabetes, smoking, poor nutrition, prolonged pre-operative hospitalisation and prolonged surgery. Though cleanliness contributes to infection control, health care associated infections (HCAI) are often caused through bacteria in the body. HCAI can be inevitable, particularly in patients who are old, frail or have undergone complex medical procedures. The most common cause of HCAI is the bacterium Staphylococcus Aureus. Many of us have this bacterium in our noses or on our skins but are unaware that we harbour it. Staphylococcus Aureus causes blood stream infections, wound infections and abscesses. For approximately 50 years Staphylococcus Aureus infections were treatable with Penicillins, for example Methicillin, Cloxacillin and Flucloxacillin. However, through evolution, strains of Staphylococcus Aureus have become resistant to such drugs. Currently, the most publicised is Methicillin Resistant Staphylococcus Aureus, or as it is more commonly known, MRSA.
Media coverage suggests that MRSA is more prevalent than other forms of Staphylococcus Aureus infections but there is currently insufficient data available to confirm whether this is true. Patients who develop infections caused by MRSA are either colonised with the bacterium at the time of their admission to hospital, acquire it through surgery or through cross infection post surgery. Risk factors for MRSA include previous hospital admissions, pressure sores, underlying disease, implants, intravascular lines and antibiotic administration.
Increase in MRSA cases
MRSA does not seem to be a problem in healthy patients. Trauma patients and elderly patients are seen to be most at risk. Its impact affects the patient and their family and also has significant cost implications to the NHS. Contraction of MRSA lengthens a patient's stay in hospital. The drugs recommended to treat MRSA, for example Vancomycin and Teicoplanin are more expensive than other antibiotics. Outbreaks of MRSA may disrupt hospital routines and result in closure of theatres and wards and re-deployment of staff. Patients may also need additional treatment and support following discharge thus affecting resources of community healthcare and social services.
Cases may be on the increase for a number of reasons. There is better reporting and more recognition of the infection. The Department of Health has now started to publish annual MRSA rates for acute NHS Trusts on the Chief Medical Officer's website and advises that Trusts are now expected to display their rates and trends in public areas and to include them in their published annual reports. Information about other types of infection are to be published from 2005 onwards, it will be interesting to compare them to the occurrence of MRSA.
Resistance to certain antibiotics can mean the infection is more difficult to treat. Certain strains of MRSA are easy to spread between patients and can colonise in debilitated patients. Health professionals advise that MRSA is on the increase due to the need to reduce waiting lists resulting in a rise in bed occupancy, the frequent moves of patients within hospitals and the lack of beds available to separate trauma and elderly patients.
There is also difficulty in containing the spread as the source of infection can be from the air, visitors, surgical instruments, hospital environment, the hands and people working within the hospital environment. Within hospitals there are limited isolation facilities to cope with the number of cases with layouts and designs of hospital buildings not lending themselves to isolation and in the past, there was probably a lack of importance and resources placed on infection control measures.
The European Antimicrobial Resistance Surveillance System data for 2002 showed that the UK has amongst the worst rates in Europe. The National Audit Office report published on 14 July2004 reported that the Department of Health's mandatory MRSA reporting system had revealed an 8% increase in the number of Staphylococcus Aureus bloodstream infections from 17,933 in 2001-2002 to 19,311 in 2003 - 2004 out of which about 40% were MRSA. This makes the UK's rate among the worst in Europe.
Suing for MRSA infection
Most enquiries centre around catching MRSA in hospital. If an infection is contracted as a result of negligent care, the fact that MRSA was the cause of the infection does not make it more or less negligent. Establishing breach of duty is on the whole more straightforward than establishing the causal link that such a breach caused or materially contributed to the patient's ill-health.
For example, studying a Hospital Trust's Infection Control Policy obtained through disclosure in the early investigation stage of a case may reveal a policy to always screen patients for MRSA before carrying out high risk procedures or if the patient falls within a certain category. If such screening is not carried out, the Trust is in direct breach of its policy. Likewise if screening is carried out and then there is a failure to wait for the results of the screening before carrying out surgical procedures, this is a breach. Other examples of breaches could include non-compliance with a Trust's Infection Control Policy on hygiene in terms of the nursing of MRSA patients, delaying in the initiation of effective MRSA therapy, or failing to detect that an MRSA strain is resistant to a particular antistaphylococcal drug, for example Rifampicin.
Establishing the causal link is by far the most difficult to prove and usually results in the outcome of MRSA claims being unsuccessful. This is partly due to the lack of data collated by hospitals. If the claimant is not screened in the pre-operative period it may be impossible to determine if the claimant was colonised with MRSA at the time of surgery. If the claimant is screened on admission and the screen is negative then the assumption could be that the claimant acquired MRSA either from a colonised member of the scrub team during surgery or in the post operative period via cross infection from other MRSA patients on the ward.
Obtaining swab results of the surgical team would be of assistance but swabs are not performed as routine standards of practice.
Contraction of MRSA in the post-operative period can be difficult to prove. Anonymised microbiology notes of other known MRSA patients on the same ward as the claimant may assist in identifying a match of the strain of MRSA to the claimant's strain. A microbiologist may argue that identifying the source of the same strain does not necessarily mean that that source infected the claimant, particularly as many people can have the same strain of MRSA. In this respect one could look to draw a parallel to industrial disease cases where if breach of duty can be established, exposing a claimant to an increased risk of contracting MRSA could be argued as having materially contributed to the claimant's condition and the issue would be what steps were taken to guard the claimant against such a risk.
As long as the incidents of MRSA continue to rise, there is no doubt that there will be a growth in investigating claims but whether such claims shall be successful is difficult to predict.
Preventive measures
Media coverage and publication of reports to date show there is need for reform. At the moment the elderly and trauma patients are treated as being colonised with MRSA upon admission and are treated accordingly. It would seem that treating the elderly and trauma patients is too narrow a spectrum. Some hospitals have stopped screening and automatically give patients antiseptic baths and cream to be administered in their noses, as the nose is the highest place for the colonisation of MRSA. Microbiologists warn that applying cream to the nose does not reduce the instant of infection.
Health professionals advise that different protocols on MRSA are needed to allow comparative studies to be made. As yet, there is no certainty that the giving of prophylaxis (a drug used to prevent infection developing) as a precautionary measure when it is not known whether a patient is MRSA positive or not upon admission may do more harm than good. Prophylaxis is not 100% effective and patients do develop post-operative infections caused by bacteria susceptible to the antibiotic given as prophylaxis.
Many hospitals now have pre-assessment clinics prior to surgery where patients are required to come into hospital for MRSA screening in plenty of time prior to surgery. In comparison there are certain hospitals where MRSA is 100% prevalent and the aim is to try and avoid patients coming into hospital too early to be put at risk of infection.
Many Trusts have in place Infection Control Policies setting out steps to be carried out for the screening of MRSA and the nursing of MRSA patients. The objectives of the screen are to identify patients who are colonised with MRSA and, in the case of those patients who are colonised, to allow the implementation of interventions to reduce the risk of post operative infection caused by this bacteria. However, there is no point carrying out pre-operative screening the day before an operation is to performed if the results cannot become available until 3-4 days later as surgery has by then taken place. The key must be to ensure that any Infection Control Policies in place are rigidly followed otherwise what is the point of having such a policy in the first place.
In July 2004, the Department of Health published a report entitled "Towards cleaner hospitals and lower rates of infection". In that report, the Department of Health reports that there has been an investment of an extra £68,000,000 in improving cleanliness, tidiness and appearance of hospitals. This is in addition to investments made by local NHS Trusts. It acknowledges that MRSA is a "growing problem" and though it reports that there are excellent examples of good cleanliness and infection control in the NHS, a new campaign is needed to bring everywhere up to the same standard. Control of infection is to be put "at the heart of inspection regimes".
The National Audit Office (NAO) report published in July 2004 states that "despite putting systems and processes in place and strengthening infection control teams to improve the prevention and control of hospital acquired infection, the NHS does not have enough information on the extent of hospital acquired infection". It reports that considerable improvements could still be made to include the following - educating and training in infection control to all groups of staff and compliance with guidance on issues such as hand hygiene and hospital cleanliness.
The NAO make a number of recommendations including that the Department of Health (DoH) should carry out research into bed management and isolation in conjunction with the Health Protection Agency (HPA); that the DoH works with the HPA to hurry up the development of a national mandatory surveillance of hospital acquired infection to produce comparable data and that infection control is a key component in undergraduate training.
MRSA will never be eradicated. The key will be to ensure it is always under control.
Taken from The Lawyer - Law Zone.
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