© Weightmans LLP HAI – LEGAL PERSPECTIVES Infection Prevention Summit Pennine Acute Hospitals NHS Trust Simon Charlton, Associate, Weightmans LLP, Healthcare Department 30 November 2007

© Weightmans LLP Possible Legal and other Actions ▪Civil Claim ▪Criminal Prosecution (Manslaughter) ▪Health & Safety Executive Prosecution ▪Healthcare Commission Improvement Notices etc

© Weightmans LLP Potential Claimant Must clear three obstacles. They must prove: 1.That the Trust owed them duty of care 2.That there had been a breach of this duty 3.That the breach caused them personal injury or damage which was not too remote

© Weightmans LLP Burden of Proof For a claim to succeed, the Claimant needs to demonstrate that the Trust/PCT had breached its duty of care For example in MRSA/C-Diff cases:  Failed to conform to general guidelines  Breach of Hospital Policy (e.g. as identified within infection control documentation)

© Weightmans LLP Breach of Hospital Policy Examples…  Failure to act appropriately in the event of an outbreak (e.g. cancellation of elective surgery)  Failure to screen high-risk patients prior to surgery  Failure to use aseptic techniques during procedures  Failed to recognise potential symptoms – and carry out appropriate investigations to confirm infection  Delay in prescribing appropriate therapy

© Weightmans LLP Possible Examples of Negligence Two categories, though many apply to both:  Contraction of HAIs as a result of negligence  Negligent treatment of HAIs

© Weightmans LLP HAI Cases as a Result of Negligence  67 year old admitted in good health  Hip replacement  High incidence of MRSA on the orthopaedic ward at time of admission  Contracted MRSA  Alleged failure of infection control procedures and failure to treat MRSA appropriately  Out of Court settlement - £400,000

© Weightmans LLP Negligent Treatment of HAI Cases  Male in early 30s admitted with pain and swelling in groin and scrotum  Uncomplicated surgical removal of lump  3 days post-op/discharge wound became infected  Wound left open following incomplete debridement of infected area  Necrotising fasciitis diagnosed 36 hours later  Management of infection substandard  Claim settled for £20,000

© Weightmans LLP Corporate Manslaughter Act 2007 ▪Due to come into force in April 2008 ▪New offence – would allow organisations to be prosecuted for management failures that lead to death (including death of employees) ▪NHS body guilty if activities: ▪Causes a person’s death and ▪Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased  Penalties include unlimited fines and publicity orders

© Weightmans LLP Unsupervised Junior Doctors  R v Misra and another (2004) – see BMJ, Jan 2006  Patient admitted for routine knee operation  Staphylococcal toxic shock syndrome  2 SHOs failed to treat subsequent infection  Patient died  Both doctors convicted of gross negligence manslaughter in 2003 – 2 year suspended prison sentence  Suspended from GMC (6 months)  Hospital Trust admitted inadequate management of the 2 SHOs

© Weightmans LLP Department of Health  The Department of Health wants to reduce the number of MRSA bacteraemias by 50% in England by 2008  The Health Act, 2006 – Code of Practice (published 1 October 2006)  WARNING - Improvement Notice/ “special measures”

© Weightmans LLP Summary- How to Avoid Trouble  Ensure there is a detailed up to date Hospital Infection Control Policy (with review date) – available in all areas  Infection Control Policy conforms to National Guidelines  ALL staff MUST be aware of the existence of the IC policy and have read and understood its contents  Implementation and adherence to IC Policy – Monitoring, Auditing, Risk Assessment  Training – regular ongoing education – ensure staff aware of current practices and uphold standards  Documentation – clear/legible, contemporaneous