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COSHH Regulations

18/02/2010

Clinical Negligence: Use of COSHH Regulations in Clostridium Difficile cases

18 March 2008

An article entitled “COSHHer Precedent for Clostridium difficile cases?” by Danielle Holme in Legal & Medical issue 29, March 2008, looked at the Clostridium difficile (“C. diff”) superbug and how the Control of Substances Hazardous to Health Regulations (“COSHH”) could help victims pursue compensation claims.

The issue of superbugs, in particular MRSA and C. diff cases, are rarely out of the daily news. The recent £5 million pay out in the High Court for Lesley Ash has put the issue of hospital acquired infection firmly back on the agenda.

This article looks at the proposition that C. diff Claimants, like MRSA Claimants, can bring claims through breach of duty of common law and breach of statutory duty.

The article refers to the case of Kitty Cope v Bro Morgannwyg NHS Trust as a “landmark” decision which “paves the way for other healthcare infection cases.”.

Under the COSHH Regulations, there is a duty on an employer (or NHS Trust in infection cases) to protect employers (or patients) against exposure to a biological agent, through appropriate decontamination and disinfection procedures. The lawyers in the Kitty Cope case argued that MRSA could be classified as a biological agent under the Regulations.

The article argues that it will be interesting to see if judges interpret C. difficile as coming under the definition of a biological agent.

By bringing a case under breach of statutory duty this would have the effect of reversing the burden of proof so that the Defendant would have to prove that they complied with the relevant decontamination and disinfection procedures.

Samantha Critchley, clinical negligence lawyer at Fieldfisher says:-

In my view I do not think bringing a case under the COSHH Regulations will act as a panacea for Claimants in bringing cases concerning hospital acquired infection whether this be MRSA, C. Difficile or any other organism for that matter. This and a number of other articles refer to the case of Kitty Cope as a “landmark” case. This was a case which was, in fact, settled without resort to a court hearing.

In the case of Ndri v Moorfields Eye Hospital NHS Foundation Trust [2006] EWHC 3652 (QB), I acted for Mrs Ndri, who alleged that her corneal graft had become infected with a bacteria called pseudomonas which resulted in the loss of sight in her right eye. The claim was brought both in negligence and under the 1999 COSHH Regulations.

Whilst the Judge, in this case agreed that pseudomonas could indeed be classified as a biological agent under the COSHH Regulations, he went on to say that it was clear from the whole structure of the Regulations that patients in hospital are not to be included amongst the persons to be protected. The Judge relied on an exclusion in the Regulations which stipulated that where the infective substance is “administered in the course of his medical treatment” there can be no breach of statutory duty.

We advanced an argument on behalf of Mrs Ndri that it was the corneal graft that was to be administered for her medical treatment and not the pseudomonas infection. The Judge was not persuaded. The Judge considered that whilst it was an ingenious attempt by the Claimant to argue that the COSHH Regulations applied and should therefore reverse the burden of proof the argument would not succeed.

Clearly, this decision is open to appeal. The case was brought under the 1999 COSHH Regulations as opposed to the more recent 2002 Regulations.

However, the Health & Safety Executive have expressly stated that they do not wish to get involved with clinical matters which are more appropriately dealt with elsewhere.

In my view, if there is a case where the Hospital Trust has failed to follow its own policy or guidelines then arguably, that would lead to a finding in negligence, in any event.

If there is a system failure, the Claimant will still need to be able to show that the breaches of the statutory duty resulted in injury. It may be very difficult for the Claimant to prove that they came into contact with the infection as a result of the particular breach”.

Fieldfisher is a leader in the field of clinical negligence claims.

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