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Limited chance of damages for families of hospital infection victims

16 October 2007

The Healthcare Commission’s report into the handling of the outbreak of Clostridium Difficile at hospitals in Maidstone and Tunbridge is likely to provide only limited support to the families of victims as they would still need to overcome several hurdles in any claim against the hospital. Already time is running out, as the first outbreak took place at the end of 2005 and the second in 2006, and the families would only have three years to bring a case from the date of the event.

Tactically, any claimant in such circumstances would also usually be advised to wait until the outcome of criminal proceedings is known before starting a civil action. Establishing liability under the higher criminal standard of proof would assist a civil claim in negligence against the NHS trusts but delaying the issuing of a claim until then would further eat into the three limitation period.

On the substantive issues, there is also the question of damage, as illustrated in recent MRSA litigation. "Stand-alone cases of infection suffered in hospital historically haven’t had good prospects of success", says Hannah Wilson, a barrister specialising in health and safety at Henderson Chambers. "In respect of MRSA claims were successful where there were other elements in support of the claim. An MRSA infection, for instance, is commonly found around surgical wounds, so an MRSA claim would be more likely to succeed if it is one of several elements, such as a claim that surgery was conducted unprofessionally."

But unlike the MRSA bacterium, c. difficile affects the intestine, so claimants would need to show that hospital processes were lacking and allowed the bacterium to spread. This would entail detailed review of all the hospitals’ processes, and even if these were found to be inadequate, the hospitals could still have a defence that they had taken all reasonable steps expected from NHS trusts in their position.

In this regards, the Healthcare Commission report is useful but only goes part of the way in support of the families, as the tests applied are not legal test. "The claimants in a possible action against the hospitals in this case are likely to be the families of those who died and would bring their case under the Fatal Accidents Act", continues Wilson. "They would have to show their relatives died as a result of the hospital’s failure and the report is not necessarily going to help; the report looked at and tried to evaluate approximately 500 people who died with the bacterium but it found that out of this group of people, only 90 died of it, which will make it hard to show causation".

Assuming that causation is established, damages are likely to be low – or even non-existent. "The patients who died were mostly elderly and unlikely to have had dependents", says Wilson, "so their families are probably unlikely to recover substantial damages for pecuniary loss under the Act, but they could still be eligible to receive £10,000 for bereavement".

The hospitals may also be able to defend themselves by arguing that they took all the steps that were reasonably practical in the circumstances, which the courts could take to include the budgetary constraints under which they were operating.

This public policy point would also be relevant should the Health and Safety Executive decided to mount a criminal prosecution.

"When evaluating whether to prosecute, the HSE will be guided by the interest in prosecuting in terms of public policy, taking account of the purported scale of outbreak and of the number of people who died", comments Wilson. "Any fine levied would need to be proportionate, so, again, if one is looking at hospitals that have been strapped for cash for some time, one would ask whether it would be appropriate to start prosecution against them and levy a fine at all".

Recent declarations by health minister Alan Johnson distancing the government from responsibility might also be considered when assessing the appropriateness of any prosecution.

According to Wilson, the possibility of the HSE prosecuting the hospitals should also be seen in the broader context of the growing use of health and safety legislation outside the original context, as illustrated by the health and safety watchdog’s indications last week that it was considering bringing a case against the police in the De Menezes case.

"This shows a more flexible use of 1974 Health and Safety Act, which is not just being used for work related injury but is increasingly been used to cover situations where a person or group, in this case the police, has endangered the health and safety of those not in their employment", she says. But the De Menezes family would still need to show negligence on the part of the police in a civil claim.

From 6 April 2008, liability in the case of an infection outbreak could also be assessed under the Corporate Manslaughter and Corporate Homicide Act, due to come into force on that date. Senior hospital managers could be at risk of prosecution as they could be held responsible under s25 of the Act if it can be shown that they have failed in their supervisory duty.

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Procedures Police & Prisons Children