Clinical Negligence: Use of COSHH Regulations in Clostridium
Difficile cases
18 March 2008
An article entitled “COSHHer Precedent for Clostridium
difficile cases?” by Danielle Holme in Legal & Medical
issue 29, March 2008, looked at the Clostridium difficile (“C.
diff”) superbug and how the Control of Substances Hazardous to
Health Regulations (“COSHH”) could help victims pursue compensation
claims.
The issue of superbugs, in particular MRSA and C. diff cases,
are rarely out of the daily news. The recent £5 million pay out in
the High Court for Lesley Ash has put the issue of hospital
acquired infection firmly back on the agenda.
This article looks at the proposition that C. diff Claimants,
like MRSA Claimants, can bring claims through breach of duty of
common law and breach of statutory duty.
The article refers to the case of Kitty Cope v Bro
Morgannwyg NHS Trust as a “landmark” decision which
“paves the way for other healthcare infection cases.”.
Under the COSHH Regulations, there is a duty on an employer (or
NHS Trust in infection cases) to protect employers (or patients)
against exposure to a biological agent, through appropriate
decontamination and disinfection procedures. The lawyers in the
Kitty Cope case argued that MRSA could be classified as a
biological agent under the Regulations.
The article argues that it will be interesting to see if judges
interpret C. difficile as coming under the definition of a
biological agent.
By bringing a case under breach of statutory duty this would
have the effect of reversing the burden of proof so that the
Defendant would have to prove that they complied with the relevant
decontamination and disinfection procedures.
Samantha Critchley, clinical negligence lawyer at Field Fisher
Waterhouse says:-
“In my view I do not think bringing a case under the COSHH
Regulations will act as a panacea for Claimants in bringing cases
concerning hospital acquired infection whether this be MRSA, C.
Difficile or any other organism for that matter. This and a number
of other articles refer to the case of Kitty Cope as a “landmark”
case. This was a case which was, in fact, settled without resort to
a court hearing.
In the case of Ndri v Moorfields Eye Hospital NHS Foundation
Trust [2006] EWHC 3652 (QB), I acted for Mrs Ndri, who alleged that
her corneal graft had become infected with a bacteria called
pseudomonas which resulted in the loss of sight in her right eye.
The claim was brought both in negligence and under the 1999 COSHH
Regulations.
Whilst the Judge, in this case agreed that pseudomonas could
indeed be classified as a biological agent under the COSHH
Regulations, he went on to say that it was clear from the whole
structure of the Regulations that patients in hospital are not to
be included amongst the persons to be protected. The Judge relied
on an exclusion in the Regulations which stipulated that where the
infective substance is “administered in the course of his medical
treatment” there can be no breach of statutory duty.
We advanced an argument on behalf of Mrs Ndri that it was
the corneal graft that was to be administered for her medical
treatment and not the pseudomonas infection. The Judge was not
persuaded. The Judge considered that whilst it was an ingenious
attempt by the Claimant to argue that the COSHH Regulations applied
and should therefore reverse the burden of proof the argument would
not succeed.
Clearly, this decision is open to appeal. The case was
brought under the 1999 COSHH Regulations as opposed to the more
recent 2002 Regulations.
However, the Health & Safety Executive have expressly
stated that they do not wish to get involved with clinical matters
which are more appropriately dealt with elsewhere.
In my view, if there is a case where the Hospital Trust has
failed to follow its own policy or guidelines then arguably, that
would lead to a finding in negligence, in any event.
If there is a system failure, the Claimant will still need
to be able to show that the breaches of the statutory duty resulted
in injury. It may be very difficult for the Claimant to prove that
they came into contact with the infection as a result of the
particular breach”.
Field Fisher Waterhouse LLP is a leader in the field of clinical negligence claims.
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