News In Focus
19 May 2008
Hospital superbug case to go to proof
A hospital patient who contracted the "superbug" MRSA during post-operative treatment has pled a case relevant for proof under the Control of Substances Hazardous to Health Regulations, a Court of Session judge has held.
Lady Clark of Calton ruled that Elizabeth Miller, who contracted the bug at Glasgow Royal Infirmary in October 1981, had failed to make a relevant case of common law negligence in her action of damages against Greater Glasgow NHS Board, but decided that evidence should be heard before any decision whether Ms Miller was entitled to succeed under the regulations.
The case is one of the first to be brought alleging that the regulations, which principally impose duties on employers in relation to their employees, can also be relied on by hospital patients.
The board conceded in argument that as a micro-organism, MRSA was a "substance hazardous to health", but argued principally that the regulations were intended to cover substances generated in the workplace and over which the employer had control, whereas MRSA occurred naturally. The Regulations did not apply to a patient such as Ms Miller who contracted MRSA as a result of alleged "hands on" care by hospital staff.
Wide application
In her decision Lady Clark recognised that the regulations imposed a duty in respect of non-employees only in so far as "reasonably practicable", but held that they were not limited to situations where the biological agent was under the control of the defenders.
"The words used, 'arising out of or in connection with work', are intended to be words of wide application. Further, in my opinion, the interpretation put forward by the defenders' counsel does not fit with the purpose of the [European] directive or the regulations."
She added that whether a hospital patient was a person "affected by the work carried on", in the sense of the regulations, could only be decided after evidence was heard.
Lady Clark's decision can be read at http://www.scotcourts.gov.uk/opinions/2008CSOH71.html .