Elizabeth Miller (ap) V. Greater Glasgow Nhs Board
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2008] CSOH 71 |
| Court | Court of Session |
| Year | 2008 |
| Date | 14 May 2008 |
| Published date | 14 May 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 71 | |
| OPINION OF LADY CLARK OF CALTON in the cause ELIZABETH MILLER (A.P.) Pursuer; against GREATER GLASGOW NHS BOARD Defenders: ________________ |
Pursuers: McEachran QC; Barne; Drummond Miller LLP
Defenders: Murphy QC; Davie; Central Legal Office
14 May 2008
Summary
[1] In this case the pleadings narrate that on 18 October 2001, the pursuer was admitted to Glasgow Royal Infirmary for an operation. On about 30 October 2001 an infection sample was identified as methicillin-resistant staphylococcus aureus (hereinafter referred to as MRSA). It is averred that the pursuer was infected post-operatively and that the probable cause of the pursuer's MRSA infection was the transmission of the organism to her via the hands of a staff member. From these initial averments, the pursuer develops two common law cases based on alleged negligence of the defenders. The first case is based on a breach of the defenders' duty to take reasonable care of the pursuer. The second case is a vicarious case based on a failure to take reasonable care of the pursuer by hospital staff employed by the defenders. In addition the purser avers that her loss, injury and damage was caused by the defenders' breach of statutory duties under and in terms of the Control of Substances Hazardous to Health Regulations 1999 (hereinafter referred to as the 1999 Regulations). Counsel for the defenders sought absolvitor or dismissal, which failing deletion of certain averments, on the basis that as pled neither the common law duties or the 1999 Regulations were relevantly averred.
Procedural History
[2] I noted that both parties had preliminary pleas. I referred counsel to the interlocutor of Lord Macphail dated 13 March 2007 which ordained the parties to lodge notes of argument. I was informed that parties had prepared their cases on the basis that the defenders alone wished to debate the preliminary pleas-in-law. Senior counsel for the pursuer explained that the pursuer was offering and had always been prepared to offer a proof before answer. He was not seeking at this stage to have the first preliminary plea-in-law for the pursuer upheld. Counsel for the defenders did not invite a procedural roll discussion which included the preliminary pleas of both parties. In these circumstances, the hearing proceeded on the basis that the pursuer offered a proof before answer. The defenders continued to insist on their preliminary pleas in accordance with their note of argument (14 of process). At the commencement of the hearing, senior counsel for the pursuer deleted without opposition certain averments of fault relating to the "outbreak committee". I also permitted further amendment by senior counsel for the pursuer during the hearing. The final state of the pleadings are to be found in the amended Closed Record (18 of process). The preliminary pleas-in-law for the defenders on which the procedural discussion took place were pleas one, four and five. Plea-in-law one is a standard plea to relevancy seeking dismissal. Plea-in-law four states "The defenders having discretion in the exercise of their statutory duty owing no duty of care to persons such as the pursuer in the exercise of such discretion, decree of absolvitor should be pronounced". Plea-in-law five states "The pursuer's averments regarding breach of duty by the defenders, being irrelevant et separatim lacking in specification, should be excluded from probation." The procedure roll discussion took place over 6 days.
The Pursuer's Pleadings in relation to the common law cases
[3] Article 4 of condescendence sets out the factual averments which underpin the various grounds of legal liability founded upon in subsequent articles of the pleadings. It is averred that on 18 October 2001 the pursuer was admitted to Glasgow Royal Infirmary (hereafter referred to as "the Hospital") for an operation. Post operation, the pursuer suffered a discharge from her wound which was identified on about 30 October 2001 as MRSA. It is averred that the pursuer's wound infection was not caused by an organism she was carrying herself and was not contracted during the operation for reasons averred at pages 7D to 8B. It is averred that the pursuer was infected post operatively and that:
"from the time of surgery until the pursuer was transferred back to ward 65 of the Hospital at 2.30 pm on the second post operative day, at least thirteen members of Hospital staff were involved in "hands-on" treatment of the pursuer. After the pursuer was transferred back to ward 65, she continued to be attended to by various different members of the Hospital staff. The greater the number of staff which has "hands-on" contact with the patient, especially when there are wounds present, the higher the risk of transmitting infection. The probable cause of the pursuer's MRSA infection was the transmission of the organism to her from a source elsewhere in the ward (probably another infected patient or directly from dust or dirt located in the Hospital environment) via the hands of a staff member who had not followed the Hospital's hand hygiene policy. If the Hospital's hand hygiene policy had been implemented, enforced and adhered to, the pursuer would not have become infected with MRSA" (8C-9A)
Thereafter at page 9A to 10A the pursuer makes reference to parts of the Hospital's infection control policy manual. At page 9D (in averments added by amendment during the hearing) it is stated that "This hand washing requirement contained in the said hand hygiene policy ("the hand washing requirement") was a standard requirement in hospitals in Scotland at the material time for Hospital staff having direct contact with patients. Then reverting to the original pleadings it is averred that "the Hospital's infection control policy is defective due to the absence of management systems to ensure effective implementation of inter alia the Hospital's hand hygiene policy" (10A). It is averred that an assessment of ward 65 was undertaken on 1 November 2001 and a detailed list of findings of alleged defects are averred (10B- 10E). Averments are made about the minutes of an outbreak committee on 8 November 2001. These relate to criticisms of staff and working practices not only in relation to ward 65 but also the operating theatre. Reference is also made to the minutes about high dust levels on ward 65, dusty and dirty equipment and long standing problems with the cleaning of ward 65. At page 12A, it is further averred that the risks associated with the presence of MRSA on hospital premises was well known since the 1960's. Averments are made about the importance of cleaning, the recommendations following a review by Audit Scotland in April 2000 and reference is made to an Audit Scotland report in 2003. (12D-13E). It is then averred:
"the cleaning regime instituted by the defenders for the Hospital was inadequate. In such circumstances the Hospital's hand hygiene policy should have been implemented and enforced with particular diligence by the defender to protect patients, such as the pursuer, from MRSA infection.
The implementation of the infection control policy within the Hospital should have been monitored and controlled by the Hospital's infection control committee" (14A-14B).
[4] In answer to the defenders averments, the pursuer avers that:
"Epidemic MRSA strains, such as that contracted by the pursuer, emerge in hospitals. They spread from hospital to hospital. In an overwhelming majority of cases, MRSA is only spread within hospitals. They are not community organisms. ... The emergence and continuing presence in hospitals is explained by what takes place in hospitals. The main source of MRSA in hospitals is the infected patient. Such patients are being treated in hospital. The work processes they undergo (for example wound dressing), can cause the spread of MRSA to other patients. MRSA is generated as a by-product of work processes in hospital." (15D-16B).
[5] It may be helpful to put the submissions on behalf of the parties into context to refer at this point to the defenders pleadings. The defenders aver that MRSA infection could be acquired in a number of ways which would import no negligence on the part of the defenders. They aver that the infection can be transferred in different ways including hands, air or via mites on bed clothes or in the environment (18D-19A). The defenders aver that total compliance with hand hygiene policies in hospital is not possible and set out various ways in which they attempt to achieve implementation and compliance. This includes statistical process monitoring (19B- 20B). It is averred that the precise role of cleaning in the control of infectious organisms is unknown and that there could be improved hospital hygiene regimes in relation to environmental cleaning with an increase in the incidence of MRSA (20C- 20D).
[6] Following the factual averments made by the pursuer, the pursuer avers in article 5 of condescendence that:
"It was the defenders' duty to take reasonable care to look after the safety and welfare of patients, such as the pursuer, while being treated in the Hospital. Res ipsa loquitur. Esto said maxim does not apply, it was the defenders' duty to take reasonable care to ensure that adequate hygiene measures were instituted and enforced in the Hospital. It was their duty to take reasonable care by way of instructions to staff and monitoring to ensure that hospital staff complied and were able to comply with the hand washing requirement. It was their duty to take reasonable care to ensure that there was available to hospital staff adequate facilities by making available liquid soap, paper towels, antiseptic soap and alcohol gel together with accessible basins with a sufficient flow of water to allow them to comply effectively with the hand hygiene policy. The defenders knew or ought to have known that if the hand washing requirement was not...
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