By Nick Triggle
Health reporter, BBC News
A flood of MRSA compensation claims could finally be realised as lawyers turn to workplace safety legislation to pursue hospitals.
MRSA is linked to over 1,000 deaths a year
To date it has been hard to pin the blame on the NHS, as it is never known exactly when a person becomes infected.
But recent successes have prompted a rethink in how lawyers tackle cases, with many making use of laws governing the control of hazardous substances.
A government MRSA adviser said it was right that the NHS was held to account.
Susan MacQueen, head of infection control at London's Great Ormond Street Hospital and a member of the government's Specialist Advisory Committee on Antimicrobial Resistance, said: "I think this presents the best route for people to pursue the NHS.
"They have traditionally been very hard to proceed with, but lawyers seem to have come up with a way of moving forward with them."
She acknowledged hospitals were concerned it could lead to many more claims, but added: "It will help patients hold the NHS to account and that will help improve our performance in infection control so it is also a good thing."
MRSA is cited on the death certificates of more than 1,000 people every year, with thousands more left severely ill or disabled by the infection.
But lawyers have found it hard to win cases as clinical negligence claims require causation to be established which is next to impossible with MRSA because of a lack of proof over exactly where, when and how the infection was contracted.
Cases that have reached court tend to be about the treatment a patient received once they got MRSA rather than over catching MRSA.
There have only been a handful of settlements - seven involving hospital-acquired infections in England from April 2002 to March 2006 - and no admission of responsibility for causing MRSA has been made.
However, solicitors now believe the tide may be changing after they started adopting a different approach.
Instead of relying solely on the traditional clinical negligence argument, they have started pursuing the NHS by using legislation more common to industrial disputes.
Control of Substances Harmful to Health (COSHH) requires employers to control exposure to hazardous substances to prevent ill health.
Lawyers have argued MRSA comes under such a definition and if it applies to staff it should also apply to patients in hospitals.
The first breakthrough was in July 2005 when Kitty Cope, a pensioner from Bridgend in Wales, won compensation when she got MRSA after having a hip replacement.
WHAT IS COSHH?
The 2002 regulations require employers to control exposure to substances which can put people's health at risk
It defines these substances as those used at work, such as paint, generated at work, such as fumes, and naturally occurring, such as dust
However, most importantly for the MRSA claims, it also involves biological agents such as bacteria and other micro-organisms
The hospital involved settled out of court, but admitted it had not followed its guidelines on infection control.
Since then there are believed to have been several other settlements where COSHH has been used - there are no clear figures as they have all been settled out of court.
Recently, the family of Lincolnshire pensioner Joan Staples won an out of court settlement after she died following a hip replacement operation. COSHH was cited, although the hospital trust involved never admitted it was applicable.
Leading solicitors firms including Irwin Mitchell, Anthony Collins and Hugh James confirmed to the BBC they were now handling dozens of MRSA cases where COSHH was being used in the legal challenge.
Phil Barnes, the solicitor who handled the Cope case, said: "The advantage with COSHH is that it places the burden on the defendant to prove they are meeting the requirements.
"I know solicitors across the county are beginning to look at this as a way of pursuing claims.
"What we need now is for one to reach court to set a precedent, but at the moment the NHS seems to be picking off the strongest cases to settle them before it gets that far."
The NHS Litigation Authority, which handles legal challenges for hospitals in England, refused to comment on the issue.
Anne-Louise Ferguson, managing solicitor at Welsh Health Legal Services, which represents Welsh hospitals, said: "It is an interesting proposition whether MRSA, which many people carry with them in the community, can be classed as a hazardous substance.
"But I think from the trusts' point of view, they are looking at the cases and not wanting to set a precedent."
Tony Field, chairman of the MRSA Support victims group, said: "I think this has got the NHS really worried. We should see many more successful claims in the future."
The Department of Health refused to comment on whether it thought MRSA claims should be covered by COSHH.
But a spokeswoman added: "There will be cases where healthcare was negligent and it is reasonable that claims might be made in these cases."