Elizabeth Miller V. Greater Glasgow Nhs Board
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Wheatley,Lord Osborne |
| Neutral Citation | [2010] CSIH 40 |
| Court | Court of Session |
| Published date | 14 May 2010 |
| Year | 2010 |
| Date | 14 May 2010 |
| Docket Number | A762/04 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Wheatley Lord Emslie | [2010] CSIH 40 A762/04 OPINION OF THE COURT delivered by LORD OSBORNE in causa by ELIZABETH MILLER Pursuer and Respondent; against GREATER GLASGOW NHS BOARD Defenders and Reclaimers: _______ |
Defenders and Reclaimers: Murphy, Q.C., Davie; The Central Legal Office
14 May 2010
The background circumstances
[1] On 18 October 2001, the respondent was admitted to Glasgow Royal Infirmary, "the hospital", for an aortic valve replacement. The operation took place on the following day. On 28 October 2001, she was diagnosed as having a suspected post-operative wound infection. Antibiotic treatment involving cefuroxime was prescribed. A sample of the discharge from the pursuer's wound was sent for culture. On 29 October 2001, the pursuer was transferred to Monklands District General Hospital, for recuperation before being sent home. Subsequently, on or about 30 October 2001, the Department of Microbiology at the hospital identified the infection as being methicillin-resistent staphylococcus aureus, "MRSA". It is averred by the respondent that her wound infection was not caused by an organism that she was carrying herself. She claims that the timing of the infection and its relatively superficial location indicated that the infection was not contracted during the operation. She avers that it was probably caused by the transfer of the organism to her by the hands of a staff member, who had not followed the hospital's hand hygiene policy.
[2] Against that general background, the respondent has pled two common law cases. The first of these, to be found in Condescendence 5, is based upon an alleged breach of the reclaimers' duty, directly incumbent upon them, to exercise reasonable care to look after the safety and welfare of patients, while being treated in the hospital. It is said that it was their duty to take reasonable care to ensure that adequate hygiene measures were instituted and enforced in the hospital by various detailed means, which have been specified. The second of the respondent's common law cases, set out in Condescendence 7, is based upon the claim that her injury was caused by the fault of the hospital staff, for whose acts and omissions in the course of their employment the defenders are vicariously liable. Several particular failures upon the part of members of the hospital staff are specified. In addition to these cases, the respondent alleges that her injury was caused by breaches of statutory duty on the part of the reclaimers. In particular, she alleges that breaches of regulations 6(1), 7(1), 8(1) and 9(1) of and schedule 3 to the Control of Substances Hazardous to Health Regulations 1999, "the 1999 Regulations". Condescendence 6 contains averments of a number of respects in which it is claimed that the 1999 Regulations were breached.
[3] Both parties tabled preliminary pleas. The case came before the Lord Ordinary on 24 January 2008 at a procedure roll diet when it was indicated that the respondent was prepared to see the case dealt with by way of proof before answer. However, the reclaimers insisted upon their preliminary pleas. In the course of the debate, leave was given to counsel for the respondent to delete certain of her averments. Subsequently, further amendment of the respondent's pleadings was allowed. On 11 July 2008, the Lord Ordinary allowed further amendment of the pleadings, sustained the first plea-in-law for the reclaimers to the extent of excluding certain averments from probation, and thereafter allowed a proof before answer, all remaining pleas being left standing. Against that interlocutor the present reclaiming motion has been brought. On 14 October 2009 this Court, on the opposed motion of the respondent, allowed further amendment of the pleadings.
[4] The factual averments in respect of the common law cases pled by the respondent are set out in Condescendence 4. Having averred that, after her operation, she suffered an infection which was subsequently identified as MRSA, and that this was not caused by an organism she herself was carrying, or by the operation itself, she avers that she was infected, after the operation, whilst in a ward in the hospital. Her averments continue as follows:
"From the time of the surgery until the pursuer was transferred back to Ward 65 of the hospital at 2.30pm 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 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."
[5] In the pleadings, the respondent makes reference to the relevant parts of the hospital's Infection Control Policy Manual. It is specifically stated that "the hand washing requirement" contained in the hygiene policy was a standard requirement in hospitals in Scotland at the material time for hospital staff having direct contact with patients. It is said that "the hospital's Infection Control Policy was defective due to the absence of managing systems to ensure effective implementation of inter alia the hospital's hand hygiene policy". There are then averments made of an assessment of Ward 65 which was undertaken on 1 November 2001, a few days after the respondent's infection was diagnosed, and a number of defects are there reported. Further, references are made to the minutes of an outbreak committee, which was established in response to the outbreak of infection of the MRSA in the hospital, which refer to criticisms of staff and working practices in the ward. Finally, there are averments about a report by Audit Scotland in 2003, some two years after the infection, a follow up to a review published in April 2000, which is said to have uncovered defects in the cleaning regime, and, in particular, the hand hygiene policy supposedly in place in the hospital. It is further averred that, in the overwhelming majority of cases, MRSA is only spread within hospitals and the infection is not a community organism. The reclaimers' position is that the MRSA infection could be acquired in a number of ways which would import no negligence on their part. It is said that the infection can be transferred in different ways and that it is not possible to achieve total compliance with hand hygiene policies.
[6] At the debate before the Lord Ordinary, counsel for the reclaimers submitted that the respondent had attempted to develop a novel and far-reaching duty of care, and the court had to consider whether it was fair, just and reasonable to impose such a new duty on them. Reference was made to Caparo Industries plc v Dickman [1990] 2 A.C. 605. The statutory scheme under which the reclaimers operated was described. In particular, it was pointed out that bodies such as the reclaimers could make provision in relation to liabilities arising out of negligence in the carrying out of their functions. Counsel submitted that any common law duty of care had to be understood and interpreted in the context of those statutory provisions, which were designed to ensure that the statutory duties incumbent on the reclaimers were carried out; they were separate from delictual liability. In considering whether averments of negligence were relevant, regard had to be had to them in the context of the statutory framework. Reference was made to X v Bedfordshire County Council [1995] 2 A.C. 633. Junior counsel for the reclaimers before the Lord Ordinary submitted that the tripartite test in Caparo Industries plc v Dickman had not been met in the present case. It was argued that the first two parts of the test, namely proximity and foreseeability, were not relevantly averred by the respondent. Further, it was maintained that the third test had not been met by averments that were relevantly stated. A number of factors had to be considered in this regard. Firstly, it was said that, if the case were to go to proof, any patient who had contracted MRSA would similarly be entitled, without further justification, to an enquiry into their claims; this would have enormous implications for the Health Service. Secondly, it was maintained that MRSA was a micro organism which occurred naturally in the environment and it was therefore not possible to eradicate it completely from hospitals. The mere fact of infection occurring did not connote negligence. Thirdly, it was contended that matters such as the frequency of cleaning and general hand hygiene were not properly justiciable. The adequacy or otherwise of the facilities available for cleanliness within the hospitals depended upon policy decisions about the allocation of resources; the court ought not to intervene in what was a discretionary process on the part of the reclaimers. Fourthly, it was said that the National Health Service had been set up for the benefit of the public as a whole and that any proliferation of cases would lead to resources being diverted from the provision of health services to the conduct of litigation. Fifthly, reference was made to other available remedies, such as claims for professional negligence. Finally, it was suggested that the reclaimers should not be forced into making defensive policy...
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