Article

Few patients compensated for hospital acquired infection

Hospital acquired infections (HAI) have frequently commanded the headlines. In January 2007 MRSA was in the limelight when Lesley Ash said she would sue Chelsea and Westminster Hospital after contracting the super bug. Clostridium difficile (C.Dif) is the new bete noir causing 41 deaths in Stoke Mandeville over three years. In February the National Office of Statistics reported increased citations on death certificates of 39% for MRSA and 69% for C.Dif between 2004 and 2005.

The Government has just announced that Healthcare Commission inspectors will carry out unannounced spot checks of NHS trusts in England to assess performance compliance with the Government’s hygiene code and issue ‘improvement notices’ or impose special measures on failing trusts.

It is implicit in that announcement that the incidence of HAI is too high. The evidence supports this. Infection rates are far lower in private sector hospitals probably because patients tend to have a room to themselves. It is also accepted that the problem has been aggravated by neglect of the most basic hygiene and infection control measures.

If HAI are responsible for so many adverse outcomes and deaths one may wonder why so few compensation cases are brought. There are a number reasons corresponding to different scenarios that potentially give rise to claim

= Lack of consent
= Contraction of an infection due to substandard care
= Delay in diagnosing and treating an infection
= Performing elective surgery on an infected patient.

Consent

A surgeon who failed to warn the patient of the risk of infection would almost certainly have breached the duty of care. Subject to the exception in Chester -v- Afshar the patient would still face the difficulty of persuading the court that he would not have undergone surgery had he been informed of the infection risk. There would also potentially be a case where a surgeon failed to advise a patient of the option of laparoscopic surgery as this involves a significantly lower risk of infection.

Contracting an infection

The number of patients who suffer HAI is very large indeed. However these cases are difficult to prove as HAI are generally regarded simply as a hazard of surgery or hospital admission. In order to prove that the infection was acquired as a result of negligence the patient has to show that the hospital’s infection control procedures fell below an acceptable standard. It is necessary to examine infection control protocols, minutes of infection control meetings (which may reveal ward infection numbers and any isolation or ward closures due to infection) and the hospital’s infection surveillance programme. An expert (usually a microbiologist) is then instructed to report on whether procedures fell below an acceptable standard and whether this was the cause of the particular patient’s infection.

We are not aware of a single reported case of a patient who has successfully recovered compensation as a result of a hospitals substandard infection control procedure. However, we have acted for a hospital orderly who contracted a rare strain of tuberculosis (not generally regarded as an HAI). As the infection was so rare our expert was able to state that it was overwhelmingly likely that she picked it up at work. We obtained documents that proved her allegation that infection control measures were routinely ignored including a memo from the doctor responsible for infection control stating that more senior doctors were the worst culprits! Despite the strength of those documents the hospital defended the case on the basis that it was not proven that the infection was acquired in the hospital and court proceedings were issued. Fortunately the client had made a good recovery and the case settled for a modest sum before trial.

Inappropriate surgery

These cases are unusual. We recovered substantial compensation for a lady who underwent breast reconstruction following mastectomy. The surgery was not urgent but went ahead when the patient was known to be MRSA positive. The infection caused the reconstruction to fail leading to gross disfigurement and repeated remedial operations and psychiatric injury.

Delay in diagnosing and treating infection

In these cases the prospects of success are far greater. The infection involved could be either a HAI or something such as ordinary staphylococcus aureus. Nonetheless the patient still has to prove both breach of duty and causation.

One case that failed on breach of duty involved a man who underwent spinal surgery and insertion of a PCB cage. Despite being a diabetic and undergoing radical surgery he was not prescribed prophylactic antibiotics. He contracted C.Dif and went on to suffer a spinal infarct which caused him to be paralysed. Whilst microbiology evidence confirmed that the infection led to development of an abscess the orthopaedic expert considered that there was a body of responsible orthopaedic surgeons who would not have prescribed prophylactic antibiotics.

As widespread HAI is a relatively new phenomenon it is unsurprising that medical opinions can differ even within the same discipline. In a case where a patient developed MRSA following abdominal surgery a consultant microbiologist, reporting for the Healthcare Commission, and two independent microbiologists all differed on the issue of whether antibiotics should have been prescribed. The crucial underlying issues were what guidelines were accepted as common practice in the UK at the time of the alleged negligence, and what was reasonable practice for a microbiologist at local hospital level as opposed to an acute hospital clinician who specialised in hospital acquired infections - a fine distinction but nonetheless an important one.

A final problem is that a significant proportion of patients affected by HAI are the elderly. They tend to be less willing to complain and their claims often have a low value which means that the number of claims brought do not accurately reflect the number of adverse outcomes for these patients.

We are frequently contacted by patients whose treatment has been blighted by HAI. In the elderly the results can be fatal. We tend to think that the difficulty in obtaining compensation for such injuries is the primary reason the problem was not taken as seriously as it should have been much sooner. It is clear that the judicial and financial accountability provided by the tort system plays a major part in bringing about systemic improvements in healthcare.

For further enquiries please contact Graham Bell (view full profile) on 01892 701358 or email graham.bell@ts-p.co.uk.

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