Question:      

I was in hospital recently for an operation and during my stay I contracted MRSA.  I was very sick for a number of months and continue to have some ongoing complaints.  I don’t know how to find out if I have a case for compensation against the hospital concerned.  What steps would I have to take to try and establish if I have a case?         

Answer:            

Medical negligence cases are difficult.  The Irish test for professional medical negligence was established in a landmark case called Dunne –v- The National Maternity Hospital.  This case set out four separate tests that have to be met by any injured patient before they can succeed in proving negligence against a hospital and/or a doctor.  Two of these tests are as follows:  

1. A practitioner is negligent in diagnosis of treatment only if guilty of such failure as no other practitioner of equal specialist or general status or skill would be guilty of if acting with ordinary care.  

 

1. An injured patient establishes negligence against a medical practitioner by proving his deviation from a general and approved practice, only upon proving also that the course taken was one which no other medical practitioner of like specialisation and skill would have followed when taking the ordinary care required from a person of his qualification.      

 

In summary, these are difficult tests to establish and usually involve all of a patients medical notes, records, scans and x-rays being obtained from the hospital and doctors concerned and then being sent to the appropriate expert in the United Kingdom for them to provide an opinion as to whether the doctor and/or hospital concerned were negligent (using the Dunne Test).   

 

What is MRSA?   

 

MRSA – Methicillin Resistant Staphylococcus Aureus.  

1. Frequently part of the skin flora found in the nose and on skin but can live on plastic, paper and metal.  

 

1. About 20% of the population are long term carriers of S. Aureus.      

 

1. Most hospital infections are spread by direct patient to patient contact via healthcare staff or via contaminated environment.  

 

What does MRSA cause?  

• Pimples. 
• Boils. 
• Infected eczema.   
• Septicaemia, if it gets into the blood stream.         
• Septic arthritis.        
• Endocarditis.             
• Cellulitis 
• Osteomyelitis  (Infection of the bone)

 

What does not kill MRSA?                           

• Broad Spectrum Antibiotics.                                              
• Methicilin
• Penicillin.                       
• Potentially any Antibiotics.                                                    

 

When you consult a Solicitor, you should immediately, having obtained your notes and records from the hospital’s concerned also provide information in relation to the following concerning your treatment and stay in the hospital:            

 

1. (a)  Prior to the surgery had you spent any time in hospitals and/or care homes?                                

                  

(b) Was your skin swabbed prior to the surgery to test for MRSA and if so, do you recall the result?    

(c) Was any action taken as a result?   

2.   From the date of admission to hospital until diagnosis was made with MRSA, can you recollect if any other patients on the ward had MRSA or had “isolation” notices above their beds?    

3.   Can you commend whether and over what period you had: 

 (a) Any major open or closed wounds.  

             (b) Any wires or bolts through the skin into fracture sites.      

             (c) Any intravenous lines regarding foods or fluids or medication or any injections.       

4.    Do you remember if prior to touching any wounds, wires, bolts or intravenous lines whether the health care staff either washed their hands or used alcohol rub ?

5.    Did health care staff wash their hands or use alcohol rub after treating one patient and before treating the next e.g. those taking blood pressures, giving medicine, giving blood etc.    

6.   Were there sinks, soap dispensers, alcohol rub dispensers nearby and were the dispensers full?            

7.    Do you have any other comments or information about the state of cleanliness or hygiene on the ward?   

8.  When were your first symptoms of infection (e.g. fever, puss from wounds?).    

9.    How long after this were swabs taken and how long did it take before you were informed of your diagnosis?   

10.  After being diagnosed with MRSA, were you or your family member:  

(a) Moved to a side room or otherwise into isolation and how long was this after the diagnosis?   

     (b) Identified as having MRSA by an isolation notice?      

     (c) Provided with your own toilet facilities?       

     (d) Permitted to interact with other patients?              

11.  Did you notice any change in how you were treated after diagnosis and what were those changes? 

The answers to the above questions are very important in assisting the expert who will be retained by your Solicitor so that the expert can establish whether you have a claim for medical negligence.

When the experts report is obtained, your Solicitor will then be able to advise you as to whether a case should be taken against the hospital concerned. 

It is very important to ensure that any proceedings against the hospital are issued within 2 years from the date upon which you contracted MRSA as this is the Statute of Limitations period.  Any proceedings that are issued outside of this period may become statute barred.

In Holland Dutch Doctors have agreed to speak openly about serious medical errors they make as part of a national patient safety campaign.  The Dutch Institute for Healthcare improvement have produced a document to address the culture of secrecy surrounding mistakes.  This document was circulated to all 46,000 members of the Dutch Medical Association.

This approach mirrors the recommendations of the Department of Health and Children’s commission on patient’s safety entitled “Building a Culture of Patient Safety” which was published in July 2008.  This report argued that Doctors should make full disclosure of medical errors to patients to enhance patient safety.  It is also in keeping with their ethical commitment of honesty to patients.

The report stated that “the overriding principle accepted by the commission is that patients should be entitled to expect honest and open communications in relation to adverse events that may have caused them harm”.

In January 2009 Minister Mary Harney signed into law the Protected Disclosures Provisions of the Health Act 2005. This provided statutory protection for whistle blowing by healthcare workers who feel that the health and welfare of patients receiving treatment are at risk.

To date the State has not implemented the recommendations contained in the Department of Health’s Report.

Contrast this with the position in the United Kingdom where from April 2010 it will be mandatory for the NHS Trust to report all patient safety incidents  to the National Patients Safety Agencies.  All 400 NHS Trusts in England including Hospitals, Primary Care Trusts, Mental Health Services and Ambulance Services will be obliged to report adverse incidents. This information will then be shared with the NHS Regulator.

The deep reluctance on the part of the Irish Medical Profession to impose upon their members a positive legal duty on Doctors to own up quickly to medical errors is only causing greater distress to patients.  It is forcing them to go down an expensive and often risky legal route.

Medical negligence claims carry huge risk and different standards of legal principles have consistently been applied by the courts when dealing with these claims.  These principles tend to favour Defendants as the standard of negligence required to be proven is higher than in a normal liability claim.

This adds to the trauma of injured victims.  Early admission of fault and settlement of these claims would alleviate the suffering of injured patients.

If the Dutch medical profession ,who have far outweigh the Irish medical profession in number,  accept their responsibility how long can it be before Europe forces the Irish medical profession to follow suit?

NOTES

Reported medical accidents have nearly doubled since 2008 and now stand at nearly 90,000.

In 2008 the total paid out for medical negligence actions (damages and costs) was £25.5 million.

Medical negligence damages represent less than 50 per cent of the total amount of the states liability for damages.