No win, No fee While many people will be surprised to learn that hospital-acquired infections are relatively commonplace the vast majority can be avoided. It goes without saying that when attending an NHS hospital, or the ever-growing number of private hospitals, the hospital has a duty of care towards patients, visitors and staff. In the event that clinical negligence can be proven to have caused a hospital-acquired infection then there is likely a case for compensation.
NHS Duty Of Care
In recent times the NHS has become something of a political football with confusion over continued investment levels and the impact it’s having at a patient level. Staffing issues, funding for new machinery and an ever-growing UK population have created what can only be described as the perfect storm. In these situations it can be extremely easy for infections to emerge and due to a variety of reasons they can spread extremely quickly throughout a hospital.
The duty of care goes beyond that of just the hospital, with staff now obliged to report serious breaches of health and hygiene under a “duty of candour”. While to some this may seem like a form of spying on colleagues, patients and visitors, at the end of the day health comes before moral dilemmas. It is also worth noting that patients and visitors also have an obligation to abide by strict hygiene regulations at all times. Simple issues such as using the sterilising gel now commonplace across NHS hospitals may seem fairly innocuous but studies have shown that it can halt the spread of many different types of infection. However, at the end of the day it is the hospital which has the overall duty of care towards patients, staff and visitors and this is the body which is generally held accountable in the event of a breakout of infections.
NHS Whistleblowers
The idea of whistleblowing on colleagues, friends, patients and visitors may seem alien to many people but there are now strict laws in place to protect those raising valid concerns. In theory, there should be no personal impact on those whistleblowing on substandard health and hygiene issues although unfortunately this is not always the case. You could argue that a reluctance to assist whistleblowers in improving health and hygiene in a hospital environment is itself a form of negligence when looking at the overall picture.
Common Hospital Acquired Infections
Some of the more common hospital-acquired infections include:
MRSA
In recent years there has been an increase in cases of MRSA hospital-acquired infections. While this virus is in many cases nonthreatening, in hospitals it can literally be deadly. There are many factors to consider including the area of the body infected with some of the more common MRSA symptoms including:
- General feeling of unwell (obviously not uncommon in hospitals)
- Chills
- Fevers
- Confusion
- Dizziness
- Red spots on the skin
- Painful swelling and tenderness in the affected area
Unfortunately, if MRSA is not diagnosed relatively early it can lead to cellulitis which is a potentially life-threatening infection of the deeper layers of the skin. In some cases it can lead to other conditions such as:
- Sepsis (blood poisoning)
- Urinary tract infection
- Inflammation of the bone marrow
- Septic arthritis
When you consider the potential life-threatening impact of the above conditions it is understandable why so much funding has now been targeted towards reducing instances of MRSA.
Clostridium Difficile Infection (C. diff)
The C. diff bacteria is in many ways an equal or greater threat to patients than MRSA because it can survive for literally months on exposed objects and surfaces. Like MRSA, when healthy people with a healthy immune system are exposed to the bacteria it is unlikely that they will suffer any consequences at all. However, for those with a weakened immune system C. diff can prompt abdominal pains, cramping and the passing of watery/foul odour diarrhoea.
C. diff can also lead to colitis which is an inflammation of the colon with symptoms such as:
- Frequent cases of diarrhoea
- Dehydration
- Fever
- Loss of appetite
- Weight loss
The fact that C. diff can survive many months exposed to the atmosphere perfectly illustrates the need for clean and hygienic hospitals.
Escherichia Coli (E. coli)
Even though E. coli tends to emerge when exposed to undercooked food and unpasteurised milk this is also an infection that can be passed from person to person via skin contact. While the majority of symptoms such as diarrhoea, stomach cramps, nausea and vomiting would be relatively short lived, in some cases it can lead to serious kidney issues and possible kidney failure.
How Are Hospital Infections Acquired?
In theory you would think that a hospital would be the most hygienic place in which to receive treatment but in reality it can be very different. The vast majority of infections are of a bacterial nature with transmission by skin to skin contact. Many of the more dangerous hospital-acquired infections such as MRSA are found on healthy people but in traditional circumstances they are nonthreatening. Hospital patients tend to be vulnerable to an array of infections due to 3 main reasons which are:
- A weakened immune system makes them more susceptible to infection, many of which would have a negligible impact on a healthy person.
- Open wounds, burns and sores together with areas of the skin which have been pierced with catheters and other equipment can be a breeding ground, and a perfect entry point, for bacteria.
- Busy hospitals will see patients, staff and visitors walking around various areas of the building increasing the possibility of spreading infectious bacteria.
When you take a step back and consider the easy transfer of potentially infectious bacteria from patients to staff to visitors – and the free access many have to different wards and areas of a hospital – it is not difficult to see why an isolatedhospital infection can very quickly become life-threatening for many people.
Proving Negligence In Hospital Infection Claims
The majority of hospital-acquired infections occur in NHS hospitals simply because there are more NHS hospitals than private ones. However, it is worth noting that press reports have recently highlighted the need for improved hygiene in private hospitals. So, whether you have been attending an NHS hospital or private hospital, they both have the same duty of care towards their patients.
If you acquire for example MRSA while in hospital the chances are that others in your vicinity will have had the same experience. There will be isolated cases, where it is perhaps more difficult to prove negligence, but the likes of MRSA, E. coli and C. diff tend to impact groups of people as opposed to individuals. In years gone by we have seen whole hospital wards closed to new admissions and in some cases hospitals have been close to the general public because of infectious diseases. However, the very fact that patients in hospital will be monitored on a regular basis, undergo various blood checks, etc ensures that their medical records will be up to date and will likely be used when pursuing compensation in a hospital infection claim.
In some cases it may be possible to obtain verbal and photographic evidence of unhygienic practices and dirty surgical instruments which can also help to prove negligence. As soon as possible, it is also advisable to pen a timeline of events to demonstrate how and when the infection materialised and the treatment received. There will be cases where individuals are extremely ill and unable to gather evidence but they should also be available to dependents and family members to collate on their behalf.
Medical Negligence Solicitors
In most cases, hospital-acquired infections will lead to a period of discomfort but are unlikely to be life-threatening. Therefore, the three-year time frame in which to pursue a claim for a hospital-acquired infection should be sufficient. In the event of a fatal infection then family members, dependents and the estate of the deceased all have the legal right to pursue compensation. However, for non-fatal infections you should approach a medical negligence solicitor with all evidence and a timeline of events.
In many cases the solicitor will seek further guidance from third-party medical experts to clarify the extent of the infection and the evidence supporting the claim. If the solicitor you’ve consulted with considers there is a strong case of hospital negligence to be answered they will likely suggest proceeding with a claim on a No Win No Fee basis. This arrangement effectively removes the claimant’s obligation to cover the legal expenses associated with the case in exchange for a “success fee”.
Lodging A Hospital Infection Claim
Once agreement has been reached with a medical negligence solicitor it is time to lodge the claim, with supporting evidence and timeline, with the courts. At this point the defendant will receive a copy of the evidence and details of the hospital infection claim. Should negligence be fairly straightforward, and accepted by the defendant, they would likely pursue an out-of-court settlement. This would reduce the defendant’s legal expenses but also ensure that the claimant receives their compensation quicker than if pursued through the courts. Should any negligence be disputed, or there may be more than one party involved, the case will likely go before a judge who will consider the evidence and make the appropriate ruling.
Private hospitals will have their own insurance in place in the event of hospital infection claims. The NHS is slightly different in that it is a self-insuring body which effectively means that any compensation payments come directly out of NHS funding.
Types Of Damages Compensation
There are two specific types of damages compensation which can be pursued if you acquire an infection from a hospital. These are known as general damages and special damages. General damages are direct compensation for the infection and the impact on a person’s life taking in issues such as:
- Pain and suffering (physical)
- Mental trauma
- Injuries that are life altering
As a reference point when looking to award general damages, information provided by the Judicial College is taken into account. This information covers historic compensation payments, grouping them by injury type and severity. While it has no legal standing it is well respected by the courts and insurance companies and used as a basis from which to calculate any award. There is a degree of variation/discretion which allows the individual nature of each claim to be reflected in the level of compensation. Special damages are more akin to financial recompense for expenses incurred as a result of the infection and future funding requirements. They tend to include:
- Loss of earnings/income (past & future)
- Medical expenses (past & future)
- Repair/replacement of lost or damaged possessions
- Adaptions to the home
- Additional transport costs/expenses
There is no degree of variation when it comes to special damages and any future funding requirements will be calculated on a best endeavours basis. As many serious infections will require significant medical attention it is common for special damages to be much larger than general damages although this will vary from case to case.
