CoSHH Used to Beat Hospitals In Compensation Claims

Claims from relatives losing loved ones to the super bug MRSA have always been difficult to win on the basis that the burden of proof was on whether or not the individual had caught the bug from the hospital as opposed to brining it in from within the community in which they lived. MRSA is cited on the death certificates of more than 1,000 people every year, with thousands more left severely ill or disabled by the infection.

Bad personal hygiene is one of the greatest causes of the super bug being prevalent within the community, and alarmingly it is not rare either in the workplace.

But now lawyers bringing cases to court are utilising the workplace CoSHH regulations to win cases, putting the burden of proof on to hospitals to show what they have done to eliminate and minimise the risk to patients from contracting the MRSA bug.

The media in reporting this have as usual blown it up out of proportion this week, but according to the BBC News online, both the Government and the NHS welcome this latest development.

Whilst a government MRSA adviser said it was right that the NHS was held to account, Susan MacQueen, head of infection control at London's Great Ormond Street Hospital and a member of the government's Specialist Advisory Committee on Antimicrobial Resistance, said: "I think this presents the best route for people to pursue the NHS. "They have traditionally been very hard to proceed with, but lawyers seem to have come up with a way of moving forward with them."

She acknowledged hospitals were concerned it could lead to many more claims, but added: "It will help patients hold the NHS to account and that will help improve our performance in infection control so it is also a good thing."

According to the BBC,there have only been a handful of settlements - seven involving hospital-acquired infections in England from April 2002 to March 2006 - and no admission of responsibility for causing MRSA has been made.

However, solicitors now believe the tide may be changing using a different approach in pursuing the NHS by using legislation more common to industrial disputes. Control of Substances Harmful to Health (CoSHH) requires employers to control exposure to hazardous substances to prevent ill health.

Lawyers have argued MRSA comes under such a definition and if it applies to staff it should also apply to patients in hospitals.

There are believed to have been several settlements where CoSHH has been used, but no clear figures as they have all been settled out of court.

Leading solicitors firms including Irwin Mitchell, Anthony Collins and Hugh James confirmed to the BBC they were now handling dozens of MRSA cases where CoSHH was being used in the legal challenge.

Phil Barnes, said: "The advantage with COSHH is that it places the burden on the defendant to prove they are meeting the requirements. "I know solicitors across the county are beginning to look at this as a way of pursuing claims. "What we need now is for one to reach court to set a precedent, but at the moment the NHS seems to be picking off the strongest cases to settle them before it gets that far."

The NHS Litigation Authority, which handles legal challenges for hospitals in England, refused to comment on the issue. Anne-Louise Ferguson, managing solicitor at Welsh Health Legal Services, which represents Welsh hospitals, said: "It is an interesting proposition whether MRSA, which many people carry with them in the community, can be classed as a hazardous substance. "But I think from the trusts' point of view, they are looking at the cases and not wanting to set a precedent."

Tony Field, chairman of the MRSA Support victims group, said: "I think this has got the NHS really worried. We should see many more successful claims in the future."

The Department of Health refused to comment on whether it thought MRSA claims should be covered by COSHH. But a spokeswoman added: "There will be cases where healthcare was negligent and it is reasonable that claims might be made in these cases."

Source: BBC News

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