Tom Hayeslooks at the legal practicalities of dealing with MRSA
THE STATE Claims Agency has indicated that the Government could be facing up to 1,500 legal claims and a bill of €500 million from patients with MRSA.
MRSA or Methicillin Resistant Staphylococcus Aureus remains an emotive and highly publicised issue as more infections in hospitals are reported and much of the media focus has been on the link between the bug and "dirty hospitals".
The association between lack of cleanliness and MRSA is an easy one for political commentators and the media to make, in circumstances where a proportion of patients develop infection following admission to hospital.
However, in reality, gathering sufficient evidence to mount a successful claim of negligence by a patient who has suffered serious injury, or even death, as a result of, or contributed to by, MRSA infection can be extremely difficult.
In order to bring a successful claim for compensation in negligence, the onus is on the patient to prove, on the balance of probabilities, that healthcare staff have mismanaged the patient's care; and the mismanagement has directly caused the patient's infection and injury.
Without both of these "essential ingredients", a claim for compensation in negligence will fail. The bacterium staphlococcus aureus is carried harmlessly in the nose, throat or skin of approximately 25-30 per cent of the population.
Therefore, it will always be extremely difficult for a patient to prove that they contracted MRSA during their stay in hospital, and did not simply bring the bacterium with them, or contract it from another source, such as a visitor.
Patients' lawyers, when investigating potential claims, will try to ascertain whether a patient had been tested for MRSA as part of the hospital's screening procedures before admission to hospital.
If tests prior to admission were negative, this may improve their chances of mounting a successful claim. The hospital's own protocols for cross-infection control will be subject to scrutiny as the patient's lawyers attempt to prove that they are either inadequate or have not been complied with in order to demonstrate that the patient's care had been mismanaged or compromised.
It is essential, therefore, that staff receive comprehensive training in respect of the hospital's protocols, and that they are followed.
In its defence of an action, a hospital must be able to demonstrate that it has robust protocols in place which are rigorously followed and, critically, were followed by staff in the case that is the subject of litigation.
One of the key steps that hospitals can take in this regard is to put in place policies and protocols on how to deal with MRSA, and to ensure that these policies and protocols are adhered to rigorously.
The Health Information and Quality Authority (Hiqa) put draft Infection Prevention and Control Standards out for consultation earlier this year, and they are expected to be finalised and ready for ministerial approval some time before the end of this year.
Although Hiqa's standards will have no statutory basis, they will act as a model code (or "best practice") for hospitals and healthcare institutions which will no doubt review their own protocols for the control of infection in light of them.
Hiqa's role is to raise and maintain standards in the healthcare sector generally. One would expect that new standards will set a benchmark that hospitals will want to aspire to where the control of infection is concerned, and rightly so.
However, there is often a gap between the standards that regulators would like to see in place and what can reasonably be achieved, with the resources that are available to hospitals, especially in the public sector.
The result is that hospitals, by adopting "protocols" that they ultimately cannot implement, are further exposing themselves to the risk of litigation - a factor which provides a Catch-22 scenario for many.
I am not suggesting that guidance from regulators and the standards in protocols implemented in our hospitals are dumbed down to minimise hospitals' exposure to litigation. However, it is critical to consider whether our hospitals can consistently meet Hiqa's national standards, once published.
If not, immediate steps should be taken to ensure our hospitals have the appropriate funding, resources and training to ensure that they can comply.
It is only by bridging the gap between Hiqa's proposed national standards and the ability of hospitals to comply that we can ensure patient safety and minimise the risk of MRSA infection and litigation, with the negative publicity that ultimately attracts.
• Tom Hayes is a partner and head of the Healthcare Group at Matheson Ormsby Prentice