No Evidence of negligent acquisition of MRSA: Billington (deceased) v South Tees Hospital NHS Foundation Trust (Bristol County Court,6 January 2015—Judge Denyer QC)

On the 25th January 2008, Mr Eric Billington (“the deceased”) was admitted to the James Cook Hospital in Middlesbrough for the purpose of undergoing surgery to remove cancer of the rectum. The operation was apparently successful and on the 29th, he was transferred to Friarage House. However, his condition deteriorated and a sample taken from his groin area was analysed on the 3rd March and demonstrated that he had contracted Methicillin-resistant Staphylococcus aureus (MRSA). Unfortunately his condition continued to deteriorate: he suffered a cardiac arrest leading to irreversible brain damage, and died on the 10th March 2008. It was not in dispute that MRSA was a cause of death.

The claim was pleaded in both breach of statutory duty and negligence. In relation to the former, it was alleged that the trust had been in breach of the Control of Substances Hazardous to Health Regulations, 2002 (COSHH). The trust argued that these regulations essentially applied only to employees.

The COSHH regulations are made under the aegis of the Health and Safety at Work etc Act 1974. Several of them make reference to duties incumbent on employers. For example, under Regulation 7 “every employer shall ensure that the exposure of his employee to substances hazardous to health is … . prevented.” Under Regulation 8(1) “every employer who provides any control measure in accordance with these regulations shall take all reasonable steps to ensure that it is properly used or applied.”

Judge Denyer concluded that the wording of these regulations sat very ill with the notion that a patient in hospital, who is not an employee acting in the course of his employment, is an intended beneficiary. He thought that the only realistic contrary argument derived from Regulation 3(1), which states: “Where a duty is placed by these regulations on an employer in respect of his employees, he shall, so far as is reasonably practicable, be under a like duty in respect of any person, whether at work or not, who may be affected by the work carried out by the employer, except that the duties of the employer: (a) under Regulation 11 [Health Surveillance] shall not extend to persons who are not his employees and (b) under Regulations 10, 12(1) and 12(2) [Risk Assessments, Information, Training etc] shall not extend to persons who are not his employees unless those persons are in the premises when the work is being carried out.”

Judge Denyer concluded that MRSA was not a substance arising out of or in connection with work at the workplace: bacteria are not manufactured by the hospital and are not deliberately created by it. Regulation 2(2) provided a complete answer because this specifies that COSHH only applies in those circumstances where risks of exposure are work-related and not to those where they have no direct connection with the work being done. The Judge was fortified in reaching his conclusion by the decision of Sir Douglas Brown, sitting in the High Court in 2006, in Ndri v Moorfields [2006] EWHC 3652. That Judge held as follows: “It is clear from the whole structure of the regulations that patients in hospital are not to be included amongst the persons to be protected.”

Turning to the question of negligence, Judge Denyer observed that there was no direct evidence as to how the deceased acquired his infection. There was a general consensus that this occurred at the James Cook Hospital, and in particular on ward 6.

The assistant director of nursing gave evidence to the effect that preadmission screening of patients for MRSA was not routine in 2008. However, on ward 6, there was one sink for each six-bedded bay and an alcoholic hand gel by every bed. Gel was also available at ward and bay entrances. Gloves and aprons were available outside each bay.

The trust had an infection control policy, the relevant version being issued in 2006. It stressed the importance of hand hygiene and stipulated that “hands must be decontaminated immediately before each episode of direct patient contact and after any activity or contact that potentially results in hands becoming contaminated.”

Random hand hygiene audits were undertaken. In 2007/2008, there was 100% compliance by nursing staff. Compliance by doctors was 87% in February 2008, and in respect of other attendees on the ward, there was 100% compliance.

The trust was better than average in relation to hand hygiene when compared with other trusts nationwide.

The Judge observed that all of the foregoing suggested that the trust had proper systems in place to prevent and/or control MRSA bacteria. It had to be remembered that the trust’s duty was to take reasonable care for the safety of their patients. No system could completely eradicate the risk of MRSA in hospitals and it would be wrong to conclude that, just because an incident of MRSA in fact occurred, this indicated an inadequate system.

Turning to the expert evidence, the infection control experts agreed that having read the policies and minutes of relevant meetings, these indicated “a reasonable and serious approach to infection and control. It is clear to us that the defendants were aware that there was a problem with high numbers of cases of MRSA and were putting actions into place to deal with this. Their data shows an improvement over time.”

Dr Cowling, for the deceased, explained that there was a distinction between “colonisation” on the one hand and “infection” on the other. A total of 90% of MRSA-positive individuals in a hospital setting are colonised, not infected. This means the non-harmful carriage by an individual on his or her body of potentially harmful bacteria. Infection occurs when the bacteria establish themselves within the body.

Dr Cowling accepted that policies could not entirely eradicate the risk of MRSA acquisition, but asserted that normally, and on the balance of probabilities, infection was due to a lapse by a care worker or an inadequate system.

Dr Wilson, the trust’s expert, stated that MRSA could be acquired by direct or indirect contact with other patients or from airborne contamination. It becomes widely disseminated in the environment, and nasal contamination may arise from contamination of the air. Frequent cleansing of the environment helps to reduce the risk of transmission, but the risk of dissemination and airborne contamination from carriers in the ward remains. In February 2008, it was not common practice to screen patients for MRSA on admission. He believed that the most likely site of infection was the surgical wound or the urinary catheter.

In their first joint statement, the experts agreed that proper adherence to hand hygiene would not prevent acquisition from the environment or by airborne spread. In their second joint statement, they agreed that no specific breach of duty could be identified and that the trust’s systems were adequate in the context of 2008. However, Dr Cowling believed that on the balance of probabilities, the deceased acquired MRSA through an unidentified breach of duty. Doctor Wilson disagreed.

The Judge noted that Dr Wilson had been researching the problems of hospital infections since 1984, having published about 200 papers. Dr Wilson took the view that between 4% and 8% of patients were likely to be carriers of the MRSA bacteria at the time of their admission to hospital. Such patients will be shedding MRSA all the time, so it can spread quite quickly on a ward. He accepted that his research showed that the most common mode of significant infection was by way of hand contact, but that included contact with the patient’s own hands.

Held: there was no direct evidence to show any improper or negligent conduct on the part of any employee. The evidence showed that in February 2008, there was 100% compliance by nursing staff with the hand cleansing regime. Although the Court had been invited to infer that there must have been negligence by an unidentified health worker because, statistically, that was the most common source and mode of infection, it was very dangerous to draw such an inference in the absence of direct evidence. There was a fallacy in the argument of Dr Cowling: merely because, statistically, direct hand contact with a health professional is the most common cause of MRSA, it does not follow, where there are other possible causes, that the court should infer on the balance of probability that this was the mode of infection in this case.

The court would decline to find, on the balance of probability, that the deceased was infected as a consequence of negligence by a health care worker. Accordingly, the claim failed.

Simon Fox (instructed by Pardoes) appeared for the deceased. Jane Mishcon (instructed by DAC Beachcroft) appeared for the trust.

Comment

This claim failed because there was no direct evidence of negligence on the part of the trust or any of its employees. Good systems were in place at the time, and the trust had a better than average record when compared with other trusts nationwide. Accordingly, while the deceased’s acquisition of MRSA was extremely unfortunate, the Court was unsatisfied that the case had been made out on the balance of probabilities. Indeed, the claim was based upon inferences rather than hard evidence, and the court was unwilling to adopt that approach.

Learning points

Between 4% and 8% of patients are likely to be carriers of MRSA at the time of admission.