Hospital-acquired infections: Alfred Nel v Guy’s & St Thomas’ NHS Foundation Trust

Hospital-acquired infections continue to be a perennial problem. In addition, unfortunately, it continues to be very difficult for patients to get redress via litigation. This article considers a fascinating, yet disturbing, case that involved 20 people being infected with Pseudomonas aeruginosa – a hospital infection that is not well known to the public. It also considers the adequacy of the present system for reporting hospital-acquired infections to Public Health England, formerly the Health Protection Agency. ¹

Alfred Nel’s claim against Guy’s & St Thomas’ NHS Foundation Trust was both fascinating from a lawyer’s perspective, especially evidentially, and appalling. It was a brutal example of the consequences of failings that are easily avoidable and involved the persistent problem of hospital-acquired infections. The issues reached far beyond the case itself – issues that affect all of us, as patients.

Mr Nel almost died as a result of an outbreak of P. aeruginosa, a bacteria found in water which infected him and 19 others at Guy’s Hospital, London, in November 2005. A young woman, aged 21, died as a result of the same outbreak. I only acted for Mr Nel.

The surgical unit at Guy’s Hospital was closed for a period of time after the outbreak became apparent. P. aeruginosa can spread by the transfer of bacteria on medical equipment such as breathing equipment, intravenous lines and catheters, as a result of contact with contaminated water. It is probably untreatable in most cases. It is prevented by hand hygiene and good infection control measures, such as medical equipment washers and disinfectors.

Mr Nel was an exceptionally strong, rugby-playing South-African plumber, who was aged 38 at the time of the incident. He worked extremely hard and loved physical activity. He was robust and the type of man who did not complain about pain or illness. Mr Nel had a history of kidney stones, which had never caused him much trouble and which had been treated routinely in the past. He would usually return to work very soon after the treatment.

Mr Nel had a recurrence of kidney stones in October 2005 and was treated for these at Guy’s Hospital on 1 November 2005. The procedure involved inserting an endoscope (a long tube with a light and camera at the end) up his ureter so that his kidney could be inspected. The kidney stones were treated, and the following day, a stent that had been inserted was removed. All seemed fine and he was discharged.

A few hours later, Mr Nel became extremely unwell and had severe pain in his kidney area. He started showing signs of serious and extensive infection. The pain became unbearable and spread over his body, arms and legs until his entire body felt in agony. His wife called an ambulance, and he was taken to Luton & Dunstable Hospital. He was pyrexial, septic and unstable.

Mr Nel needed emergency treatment. The doctors performed a percutaneous nephrostomy, which involved puncturing the skin to create a pathway for a tube to drain the infection. He was also given antibiotics. However, he deteriorated as the antibiotics failed to combat the infection. On 4 November 2005, he was admitted to Intensive Care. He was critically ill, vomiting blood and fighting for his life.

Tests revealed that he had become infected as a result of contracting P. aeruginosa. Studies have shown that patients such as Mr Nel, who have become septic as a result of P. aeruginosa, have only about a 20% chance of survival. He was very lucky to survive.

We were the second firm to act for Mr Nel. Our investigations showed that there were serious and avoidable failings in the washer-disinfector cleaning equipment used to sterilise the endoscope that had been inserted into Mr Nel’s ureter during surgery. The washer-disinfector was faulty, so the endoscope was unsterilised when inserted into him and the other patients. The unclean endoscope was passed from patient to patient.

Our case on causation was that, on balance, P. aeruginosa was passed into Mr Nel’s body via the unsterilised endoscope.

Mr Nel spent about seven weeks in hospital. After his discharge, he had a very rocky recovery which necessitated further hospitalisations. Although he recovered from the infection, he continues to suffer pain in his kidney area.

Mr Nel had been told by one of his helpful treating doctors at Guy’s Hospital that he had contracted P. aeruginosa as a result of the faulty washer-disinfector, as had the other patients; and that a young woman had died.

On the basis of what Mr Nel had been told, repeated efforts were made to get an early admission of liability. But, liability was repeatedly denied. Assertions were made that the treatment had met with nationally acceptable standards and that there was no evidence to suggest that the sterilisation equipment was faulty or incorrectly maintained. It was accepted that Mr Nel had contracted P. aeruginosa, but not as a result of negligence.

We continued with the usual steps involved in the investigation, but also tried to find out as much as possible about the 2005 outbreak in the press, etc. It appeared that the 2005 outbreak had escaped the press, but we did discover three important things, the second two of which were pivotal.

Earlier breakout of P. aeruginosa in 1998

There had been a similar outbreak of P. aeruginosa at St Thomas’ Hospital in 1998. Eight patients had undergone bronchoscopies in the Intensive Care Unit (ITU) and developed P. aeruginosa as a result. The outbreak had been investigated and reported in an article in the Journal of Hospital Infection: ‘An outbreak of multidrug-resistant P. aeruginosa infection associated with contamination of bronchoscopes and an endoscope washer-disinfector’. ²

The Hospital was criticised for the poor location of the washer-disinfector, and for failing to maintain it including not following internal protocols. The investigation concluded that the outbreak had been caused by the bronchoscopes which had been processed in a washer-disinfector on ITU.

Inquest into the 2005 death

As mentioned, we were informed by Mr Nel that he had been told that a young woman had died as a result of the same outbreak. We decided to obtain a copy of the narrative verdict which had been given by the Coroner, at the Inquest.

Coroners are sometimes criticised for not making the most of the opportunity to give narrative, full, verdicts. However, the verdict in this case was exemplary, and in light of the repeated denial of liability by the Trust in Mr Nel’s case, quite shocking. It read:

‘… The infection is most likely to have arisen as a result of the presence of an unusually virulent strain of P. aeruginosa immune to standard antibiotics within a decontamination unit for cleaning endoscopes’.

The infection that led to [the woman’s] death was introduced into her system as a consequence of a combination of the following:

Not keeping records of the cleaning/disinfectant process;

Chemical rather than thermal disinfectant processes for cleaning rigid endoscope;

An absence of appropriate training of staff;

Non-implementation of the Trust’s own protocols and national standards for cleaning equipment;

Not applying lessons learned from the similar outbreak in 1998 and recommendations that followed; and

The fact that the Trust’s existing surveillance systems did not identify the cluster of eight similar cases prior to November 2005.

The above verdict had been given in July 2006, yet the Trust was denying liability in Mr Nel’s case from November 2006, until a full admission of liability was given on 4 August 2009.

We found out that the strain of infection that caused the death of the young woman was identical to the strain that Mr Nel had.

It seems more than likely that the Trust knew or should have known about the 2005 verdict, when dealing with Mr Nel’s case.

The Claim

The Particulars of Claim included the following:

Generally

The verdict of the Coroner and evidence given at the Inquest into the death of another patient was relevant to this case, in particular to issues surrounding the source and cause of the Claimant’s P. aeruginosa infection:

Negligence

The Claimant relied on the doctrine of res ipsa loquitur, in that the infection could not have occurred without negligence;

In the alternative, the Defendant had:

failed to apply lessons learned in 1998;

failed to seek advice from microbiologists and other professionals before purchasing the washer-disinfector;

failed to ascertain which of the operational tests were appropriate – including whether these should have been done daily, weekly, quarterly or annually;

failed to implement or adequately implement a system of periodic operational testing or maintenance of water filtration, purity and drainage, cleaning efficiency, chemical dosing and sterilisation efficiency;

failed to train or adequately train the staff in relation to operation and maintenance;

failed to install or adequately install a system for ensuring the water supply to the washer-disinfector was reasonably safe;

failed to test the bacterial endotoxin level in the water used in the washer-disinfector. Had they done so, it would have shown that it was contaminated with endotoxin levels well over 100 times higher than standard; and, as such, the equipment could not safely sterilise the endoscopes;

failed to document any periodic operational testing or maintenance;

failed to carry out an immediate, or any assessment, of all endoscope decontamination processes, as required by a Medical Device Alert, MDA 2004/028 issued in June 2004; and

failed or failed adequately to sterilise the endoscope used on the Claimant in November 2005.

Causation

But for the negligence, the Claimant would not have suffered P. aeruginosa infection. He would have undergone an uneventful procedure to remove the kidney stones and made a swift and full recovery.

Quantum

Quantum was comparatively quite straightforward. The most contentious aspects related to loss of earnings, pain and psychiatric injury. Our case was that Mr Nel was unable to work as a plumber and would not have any significant earnings in the future; that there was little to assist his pain; and that he had suffered a psychiatric injury. The Defendant’s case was that his pain and psychiatric condition would improve over time and with appropriate treatment. Accordingly, he did have reasonable residual earning capacity as he would then be in a much better position to work.

At a roundtable meeting, without a mediator, the case settled for £541,000.00. There was no formal breakdown, but a reasonable breakdown is:

General damages: £41,000.00

Past losses:    £100,000.00 (£80,000.00 loss of earnings, £11,000.00 care and £9000.00 travel and miscellaneous expenses).

Future losses:   £400,000.00 (£240,000.00 loss of earnings, £25,000.00 care, £75,000.00 treatment, £30,000.00 gardening/DIY, £30,000.00 travel and miscellaneous expenses).

Periodical payments were considered, but the client was keen to have a lump sum.

The Claimant’s barrister was Mike Horne, 3 Serjeant’s Inn.

Comment

This was a sad case, which will impact upon Mr Nel for the rest of his life. As indicated, it is a brutal example of the consequences of failings at a very basic and easily avoidable level – a failure to keep surgical equipment clean. That’s it. Nothing complicated. No real skill needed, just basic diligence. To make matters worse, St Thomas’ Hospital, which is under the same governing Trust as Guy’s Hospital, had already been reprimanded for similar failings after the similar outbreak in 1998. It is disturbing to think that the outbreak in 2005 – that nearly killed Mr Nel, killed a young woman and infected 18 others – may have been avoided if appropriate steps had been taken and applied in 1998. Further, if such repeated failings in basic diligence are occurring at Guy’s & St Thomas’ NHS Foundation Trust, it is highly likely that similar failings are occurring elsewhere.

The wider issue

In 2008, I wrote an article that was published in Clinical Risk ‘The tip of the superbug iceberg’ ³ about the lack of a comprehensive mandatory system of reporting hospital-acquired infections. Public Health England (PHE; as mentioned, formerly The Health Protection Agency) is a non-departmental public body responsible for monitoring and recording the incidences of healthcare-acquired infections. ⁴

Presently, as in 2008, hospitals are only mandatorily obliged to inform PHE of incidences of some infections. The incidences of infection are recorded on a website, so that these can be included in statistics. The idea is that any increases and decreases in the occurrence of infections can be identified, thereby identifying where changes are needed to protect patients against hospital infections.

However, the system is seriously flawed because there are many infections, some of which can be deadly, which do not fall within the mandatory reporting scheme. In these cases, the hospital only has to disclose the incidences of these infections to PHE if it voluntarily chooses to do so – there is no obligation to do so. If the hospital wants to keep quiet, it can.

In 2008, at the time of the earlier article, hospitals were mandatorily obliged to inform the Health Protection Agency (as it then was) of incidences of three infections: methicillin-resistant Staphyloccocus aureus (MRSA), ⁵ Clostridium difficile ⁶ and glycopeptides-resistant enterococcal bacteraemia (GRE). ⁷ If a patient contracted MRSA, C. difficile or GRE, then the Health Protection Agency had to be told.

By May 2013, there have been some welcome developments in the reporting of hospital-acquired infections. In addition to the three infections above, hospitals now have to tell PHE if it has an incidence of MSSA (methicillin-sensitive Staphyloccocus aureus) (since January 2011), and Escherichia coli (since June 2011). There is a separate system in place for surveillance of surgical site infections in orthopaedics: four categories are mandatorily reported, and 13 are still voluntary.

But this has not gone far enough. The only way that PHE can properly monitor the extent of hospital-acquired infections is if they are told of incidences of all infections. I understand that this would not be an onerous burden, as systems are already set up in hospitals for reporting incidences of infections and it is done quite easily on a website. Presently many, some potentially deadly, infections fall outside the voluntary reporting scheme. There is, for example, no mandatory obligation for hospitals to report incidences of P. aeruginosa. So, after the outbreak of the infection which killed a young woman, almost killed Mr Nel (see above) and infected 18 other patients, there was no obligation on the hospital to tell the Health Protection Agency (as it then was) about the outbreak. What this means, in reality, is that we are still completely in the dark as to the true number of incidences of hospital-acquired infections.

In relation to P. aeruginosa, the voluntary reporting scheme recorded 2605 incidences in 2002, which had risen to 3743 in 2012 ⁸ – an increase of 44%. ⁹ The figures are, regrettably, rather meaningless given that we do not know whether this is an accurate reflection of the extent of the problem, as there is no obligation on hospitals to tell PHE of incidences, or whether this simply reflects an increased willingness to report. What we do know is that P. aeruginosa is likely to be killing at least hundreds of patients a year.

Not knowing the full extent of the problem also raises budgetary issues. Unless hospitals and governments know the extent of the problem, how can they possibly decide where resources should be allocated and what steps are needed to combat the problem? In addition, if resources are allocated and steps taken, how can the effectiveness of these be measured if there is no formal baseline against which success can be assessed? Hospitals across the country should be compelled to report incidences of all hospital-acquired infections, and this is not likely to happen unless rules are made which make it mandatory for them to do so. It is submitted that a voluntary reporting system will never adequately provide a reliable databank, even if hospitals are strongly encouraged to report.

Further, there is evidence that making it mandatory to report incidences of infection in itself is an effective way of motivating people involved in healthcare to do something about it. For example, in relation to MRSA (which is mandatorily reported), in March 2013 there were 924 MRSA bacteraemia reports made which is a reduction of 87% compared to the number of reports in 2002 – 7274. ¹⁰ In relation to GRE (again which is mandatorily reported), there has been an overall decrease in the numbers from 628 in 2004 to 564 in 2011 (although the recent figures show an increase to 651). ¹¹ Perhaps relevant to this is that PHE figures are in the public domain for all to see, including the media. There is no hiding.

Although, of course, it is excellent that the incidence of MRSA and GRE, for example, has decreased since mandatory reporting was introduced, it is wholly inappropriate to celebrate the success of this whilst patients are dying from other, unreported, infections. I said in 2008 that optional reporting should not be an option, and the point still stands.