Elizabeth Miller v Greater Glasgow NHS Board 14 May
2010
On 19 October 2001, the claimant underwent an operation at
Glasgow Royal Infirmary to replace the aortic valve in her heart.
She contracted a post-operative wound infection. The infection
turned out to be methicillin-resistant staphylococcus aureus
(MRSA). It was contracted, she said, from a staff member who hadn't
washed their hands. She raised a claim against the health board at
common law for the alleged failure to institute and enforce a
reasonable hygiene policy. She also alleged that they were
vicariously liable for the negligence of the staff member. Finally,
she argued that the health board were liable under the Control of
Substances Hazardous to Health Regulations 1999 for failing to
prevent her being exposed to a substance hazardous to health.
The mere thought of this claim caused the defenders to become
fevered. They feared that resources earmarked for frontline care
would have to be diverted to defend MRSA claims. Mrs Miller's
pleadings, they said, were so toxic that the claim should be
dismissed without giving Mrs Miller the opportunity to lead any
evidence.
Over six days in the early part of 2008, the health board tried
to persuade a judge sitting alone (Lady Clark) to perform emergency
surgery on the claim, cutting out the worst parts or, preferably,
putting it out of its misery all together. Lady Clark refused to do
so. She held that it was well established that health boards have
duties to their patients at common law, to take reasonable care to
provide hospitals that are clean. She held that until evidence had
been led it was not possible to come to a final view on whether in
these particular circumstances the hospital had failed to take
reasonable care for Mrs Miller. It did not follow from the fact
that MRSA had been contracted that liability would be established;
but even if liability was established, Lady Clark did not consider
that it would necessarily set any precedent for future cases where
the contraction of MRSA is in issue. She also allowed the
claimant's case under the 1999 Regulations to go to trial, albeit
with some hesitation.
The health board thought Lady Clark had been wrong to refuse to
perform radical surgery to the pleadings and sought a second
opinion from the appeal court. Although prepared to take a scalpel
to the parts of the claimant's pleadings they considered
irrelevant, the appeal court agreed with Lady Clark. They held that
the claimant was entitled to an inquiry into whether she had
contracted MRSA because of a lack of soap and towels for staff. If
it were the case that the health board would have to expend a
disproportionately large amount of resources in an attempt to
prevent patients contracting MRSA, then it was incumbent on them to
set that out in their pleadings. Their pleadings were silent.
The case under the 1999 Regulations survived, but only just. The
appeal court found it difficult to accept that as a matter of
principle the Regulations were intended to apply to patients in a
hospital. The Regulations place employers under an absolute duty to
ensure that the exposure of employees to substances hazardous to
health is prevented, or where that is not reasonably practicable,
adequately controlled. Those duties extend to non-employees only
where the work being done is liable to expose employees to
hazardous substances. However, MRSA is a type of bacteria that
lives harmlessly in about a third of all people. It only becomes
infectious when it enters the body through a cut or abrasion. It
therefore poses a risk to patients but little or no risk to
hospital staff. Nor is it in the environment as a result of any
deliberate intention on the part of the health board. The health
board argued that it was unfair to make them responsible for a
substance over which they had little or no control.
While accepting there was some force in these submissions, the
appeal court said that post-operative treatment with unwashed
hands, if proved, might arguably be 'work' in terms of the
Regulations and a patient's exposure might then be said to arise in
connection with such work. It could not be said that the statutory
case was bound to fail.
This claim has proved remarkably resistant to challenge. By the
time of the appeal hearing itself, the claimant's lawyers had
amended their pleadings on no less than eight occasions in response
to challenges from the health board. Only time will tell whether
such mutation has made the claim strong enough to survive after the
evidence has been examined. Alternatively, the health board may now
want to wash their hands of it.
Contributed by Steven Guild