MRSA in Ireland: Causes of the disease, who is liable and why

This article examines the facts of nosocomial methicillin-resistant Staphylococcus aureus (“MRSA”?) and the applicable law.

MRSA is a serious infection caused by a microorganism. We are engulfed by microorganisms. We cannot live without them. They are in the air; in the water we drink; on everything we touch; on, and in, our bodies.

Most of them, clearly, are benign and not pathogenic. Pathogenic means “disease-causing”?.

Although microorganisms are ubiquitous, their various species or strains occupy different niches. For example, Borrelia burgdorferi is a spirochete whose vector is a limited variety of ticks. It is the cause of Lyme disease . In the absence of the tick or its hosts on which the tick is parasitical, Borrelia burgdorferi would, apparently, not exist. Borrelia burgdorferi is itself a parasite on the tick. Infection is caused by the tick biting the victim and transferring the microrganism to the bloodstream of the victim. The ticks are normally parasitical on deer or small animals, especially mice. The infected animals are a reservoir of Borrelia burgdorferi.

“Spirochete”? is a reference to the shape of the microrganism.

The cause of MRSA is a strain of the bacterium, Staphylococcus aureus. “Coccus”? is also a reference to shape, in this case a rounded shape.

Staphylococcus aureus is widespread in the environment but it has a reservoir in humankind generally, specifically in the nostrils.

Strains of Staphylococcus aureus have developed resistence to the commonest antibiotic for treatment of Staphylococcus infection, and are said to be methicillin resistant. This presents considerable difficulty in treatment of the infection, which can range from boils to necrotising fasciitis and, in some cases, cause death.

MRSA is a nosocomial infection, i.e. an infection contracted in a hospital or similar setting. Ironically, it developed its methicillin resistance due to indiscriminate prescription of antibiotics by the medical profession.

Cases of MRSA have now appeared where the infection was not contracted in hospital, but in the wider community. The non-nosocomial version is called CA-MRSA (community-associated MRSA), the nosocomial version being HA-MRSA (hospital-associated MRSA).

Staphylococcus aureus, and, indeed, methicillin-resistant Staphylococcus aureus, are usually not a source of damage unless they manage to invade the victim, typically through a surgical or other wound.

This danger, universally understood, requires hospitals and similar places to take all necessary and reasonable precautions to eliminate, or at least reduce, the potential to be infected.

The precautions include at least the following:

Infection control practices
1. Staff must wash their hands before and after attending to the patient.

2. The patient’s room should be cleaned with disinfectants.

3. Isolate the patient who is infected with MRSA.

The judgement as to what are suitable precautions will undoubtedly change with the passage of time and developing knowledge; researchers in the Netherlands have identified pig farm workers as significant carriers of the MRSA bacterium.
Sites such as mrsawatch can help to keep track of changing information.

LEGAL LIABILITY

Hospitals or health care facilities, no less than anyone else, are answerable in the law of Negligence to persons to whom they owe a duty of care, where they breach that duty.

A hospital is, almost by definition, an occupier of premises. Occupier’s liability is separate to and in addition to any liability owed in Negligence.

A hospital is obliged, in addition, to avoid creating or continuing a nuisance and is answerable in law for damage flowing from such a nuisance.

NEGLIGENCE

The standard of care in Negligence varies from case to case. For instance, the Irish Supreme court has set the standard very high for supermarkets in relation to customers.

It is settled law that a hospital does owe a duty of care to patients. It is obliged to take such steps and avoid such omissions as would prevent harm coming to the patient, where that harm is reasonably foreseeable.

A very particular issue arises in the law of Negligence in relation to medical care. In the UK the Bolam test and in Ireland the Dunne test was generally understood to mean that (a) a medical practitioner was not negligence unless he/she fell below a standard that an averagely competent colleague would not fall below and that (b) where there was a professional body of opinion supporting the defendant’s action or inaction the court was precluded from holding that the defendant had fallen below the standard. The reasoning behind this was to avoid judges intervening in professional differences of opinion on patient care and to avoid eliminating or “chilling”? the possibility of developments in the field, developments that might, with the passage of time, become the generally accepted view.

However, in Griffin v. Patton & Anor [2004] IESC 48 (27 July 2004) Judge Geoghegan stated that Dunne was not authority for the proposition at (b) above. The defendant obstetrician in Griffin had carried out a uterine evacuation where the foetus had died in the uterus, but the defendant had left a piece of foetal bone in the uterus. The High court had found the defendant negligent for this oversight and the Supreme court affirmed that judgement. The Supreme court did not decry the Dunne test, but said that ordinary standards of negligence would, on the facts of Griffin, show the defendant was negligent.

There are many instances where the ordinary standards of negligence would apply to the actions or omissions of a hospital; negligence in the driving of an ambulance for instance, or failure to warn of a slippery floor, left so by cleaners.

Arguably, infection by HA-MRSA is not a consequence of “medical negligence”? – it is similar to the failure to take care in driving an ambulance or prevent a patient from walking on a slippery floor. There is, normally, no error in diagnosis or treatment involved. Such errors are the staple of “medical negligence”? actions and a HA-MRSA infection will not normally be seen to arise from such a cause.

OCCUPIERS’ LIABILITY

In Ireland the liability of occupiers is to be found in the Occupiers’ Liability Act 1995. The Act was introduced to satisfy the demands of lobbying farmers.

The statutory duty owed to persons coming on premises varies depending on whether they are a) visitors; b) recreational users or c) trespassers.

Patients in hospitals are visitors. The duty to a visitor is to take reasonable care to prevent damage from a danger of which the occupier knew or ought to have known. In Power v Governor of Cork Prison & Ors [2005] IEHC 253 (20 July 2005) the High court found the defendant liable where a prisoner slipped on the wet floor of a toilet. The defendant knew of the persistent problem of water spillages on the floor and took no effective steps to avoid the problem or the foreseeable risk of injury.

The 1995 Act only sets out the position relative to dangers due to the “state of the premises”?. Arguably, that a HA-MRSA infection occurs, carries no implication as to the “state of the premises”?. If it does not, this would mean that a claim under the Occupiers’ Liability Act 1995 would not lie for damage arising from a HA-MRSA infection.

NUISANCE

A claim in Nuisance can be “private”? or “public”?. The former arises where a particular person indirectly suffers damage or interference to his or her land or building arising from the land or building of another. The latter arises where a person indirectly suffers damage to his or her person or property arising from the land or building of another. A public nuisance potentially affects “the public”? generally but only a person suffering special damage can claim, Personal injury would be a form of special damage.

A patient in a hospital cannot claim for a HA-MRSA infection as a private nuisance. It may be that such a patient can claim for a HA-MRSA infection on the ground of a public nuisance but the case would be difficult to win on that basis.

STATUTORY LIABILITY

Section 12 of the Safety Health and Welfare at Work Act 2005 states:
“12.—Every employer shall manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being his or her employees) are not exposed to risks to their safety, health or welfare.”
CONCLUSIONS

While the serious injuries inflicted by HA-MRSA are caused by a natural factor, that alone is not exculpatory of the hospital or health care institution. It is not, for instance, an “Act of God”?. It is a very foreseeable cause of injury . The hospital owes a duty of care to patients to do everything reasonable to prevent injury or to avoid injury. Clearly, this would mean taking reasonable steps to reduce the MRSA bacteria population in the hospital. It would involve isolating infected patients. It would involve identifying vectors and reducing their effects.

These questions involve assessment of the cost or practicality of avoidance measures. Establishing an effective programme of hand washing by staff would cost very little. Isolating infected patients might involve building new facilities. Why should that not be done? MRSA injuries are usually severe and frequently fatal.

The incidence of HA-MRSA varies from country to country in Europe. The infection rate in Ireland is high relative to geographical latitude (Northern countries) . It may well be that latitude is irrelevant; that a culture of adequate medical hygiene with concomitant investment is more important. It is known that some institutions within Ireland have higher than average rates of infection.

WARNING; this post is no substitute for legal advice and no representation is made as to the accuracy of the views expressed herein. Readers should consult their solicitors.