The National health Service was once the pride of Britain, respected and envied the world over. However, the outbreak of killer virus MRSA in recent years could now ultimately spell the end of the road for the NHS, that is if lawyer Cameron Fyfe is successful at the high court. Steven Raeburn reports on the case of Elizabeth Miller.

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Elizabeth Miller is going to change the National Health Service for ever. She may even trigger the collapse of the venerable, once revered institution, founded on principles of equality and healthcare for all, but which now perversely appears to be responsible for the indirect maiming and killing of admitted patients by infecting them with the deadly MRSA virus.

This is not small problem; patients are contracting the infection at a rate of one in ten, and with the UK and Scottish Governments confirming to the Firm that 15,843,727 patients were admitted to NHS hospitals in Scotland and England alone last year, even the most basic arithmetic tells you that this is a risk to public health on an unprecedented -and apparently preventable- scale.

The man helping Miller establish whether the NHS are liable for infecting her and many other patients with the MRSA virus is Cameron Fyfe of Ross Harper, who secured the first compensation claim for Human Rights under the European Convention, and has acted for clients against both the catholic church for ritualised abuse, and imperial tobacco. He is awaiting the outcome of a procedural hearing which he believes will pave the way for Miller, and around 180 further clients whom he represents, to proceed against the NHS for compensation for their injuries. Similar previous cases have settled across the UK prior to reaching court. Fyfe is sitting on top of the first case in the UK that is likely to yield a decision, which will undoubtedly set a precedent at House of Lords level that will force this matter to be addressed. One wonders how many other potential cases are pending across the UK, if he is handling this volume alone. And he believes his client has a solid case.

The thrust of her argument is that she was admitted to hospital and swabbed prior to surgery to test for the MRSA virus, which proved negative. She thereafter says she contracted the infection, and is confident it can be proven that this occurred during the surgery, and was therefore due to the negligence of the hospital. The representatives for the NHS disagree.

“In very broad terms, they are trying to argue that there is no duty of care on a health board to ensure that their members of staff wash their hands and have a proper hygienic system,” he says.

“They say that is an aspiration that they would like to achieve, but it is not an actual duty of care. That is the crucial point. If we can win that, and convince the judge that there is a duty of care, then it will be much easier to win this case, and all the others.”

Proving that the infection was contracted in the hospital is only the first stage of the process. Miller and the others also have to demonstrate the failure in the hospital’s duty of care to its patients, as Fyfe explains.

“They have to prove two things. That the MRSA was contracted in hospital, and also that there was some deficiency in the hospital’s system; that they failed to adhere to their infection control policy. We are also trying to argue that it is in breach of the statutory Control of Substances Hazardous to Health (COSHH) regulations, and if we can prove that, then there is no need to prove there was actually any deficiency. Proving the MRSA was contracted in the hospital would almost certainly be enough to win the case.”

“The law then is that it is up to the hospital to prove that they took all reasonable precautions. That is their only defence. In many of the cases that we have, I think they would have great difficulty in proving that.”

The MRSA infection has received a lot of publicity in recent years and months. Knowledge of its existence and consequences is now so widespread that anecdotally, many patients are fearful of the prospect of attending hospital, lest the potentially fatal infection is caught. In health care systems in other jurisdictions such as Scandinavia, MRSA is unknown, as it was in the UK until recently. It is logical to conclude that the extensive NHS reorganisation undertaken since the Thatcher era and carried on under Blair -which included Public Private Partnerships and sub-contracting- may have introduced crucial changes in formerly reliable procedures. Strengthening Miller’s case is supporting evidence from noted Professor Hugh Pennington, currently assisting with the E.Coli inquiry in Cardiff, who has given testimony explaining exactly how the infection is passed on.

“We have a very strong report from Professor Pennington, who says in his opinion that the hospital could not, on a balance of probabilities, have followed their own infection control procedures; if they had, this would not have happened. If staff had washed their hands prior to the operation, Mrs Miller would not have contracted the MRSA. If we do get to a final hearing and this evidence is accepted, we have good chance of winning the case,” Fyfe says.

“Professor Pennington says it is almost certainly down to the washing of hands. It comes down to something as basic as that. If every member of staff in a hospital was to regularly wash their hands, you would eradicate it completely. It is so straightforward. When you think of the amount of money that has been spent on treating people with MRSA, which could all have been prevented with soap and water it is extraordinary.”

“You are in close contact with other people with an open wound that is the situation when you are likely to contract it. You wouldn’t contract it out on the street. That is why it is essential that people in hospitals wash their hands regularly.”

Fyfe’s work may prove easier than he anticipates. Perhaps surprisingly, the NHS themselves appear to agree with him. The NHS Direct website states that MRSA can be prevented by the simple practice of handwashing.

“Hospital staff who come into contact with patients should maintain very high standards of hygiene and take extra care when treating patients with MRSA,” it says.

“Before and after caring for any patient, hospital staff should make sure they have thoroughly washed and dried their hands.” Thank goodness for that.

No doubt Miller would agree. The consequences of MRSA infection range from boils and abscesses to blood poisoning, organ failure, severe joint problems, bone marrow infection, meningitis, lung infection and frequently death. Miller’s ill effects from the infection were comparatively mild, and the quantum of damages she is seeking is relatively low. Nevertheless, Fyfe estimates that the average value of a claim could be around £50,000 per person. He has 180 potentially successful claimants waiting in the wings for the outcome of the Miller test case. Any other sufferer over the past three years is within the time bar for raising a similar action.

The total potential cost to the NHS in settling damages claims, particularly when compared against the relatively miniscule costs of executing a reliable hygiene regime, makes the apparent failure to have done so appear to be a ridiculously false economy.

“You wouldn’t have to be a top economist to work that out. The cost of soap and water against the cost of treating the 1 patient in 10 who contracts MRSA; the cost of litigation is negligible against the cost of treating all of these people. It is obvious that what they should be doing is ensuring that this is wiped out through hygiene. They would save themselves tens of millions.”

Fyfe is being generously conservative in his estimate. Undoubtedly the NHS is standing at the precipice of the gravest threat to its existence it has faced since its inception. If the courts establish that it has been negligent, it will face ruinous litigation that will force compensation to be paid to injured claimants far in excess of the budget required to sustain it.

“If they all made a claim, the total cost would be colossal. It would wipe them out. It is as big as it gets,” agrees Fyfe.

“My clients hope that the threat of litigation will force the hospitals into doing something to eradicate MRSA. They are not in it for the money. This is a point of principle. If they gained that result, they would be delighted. If that was the final straw that made the NHS do something, it would be worthwhile.”

That is arguably the best possible outcome, and whilst Fyfe is not advocating the destruction of the NHS, it is legitimate to consider whether the total restructuring or even dismantling of the present convoluted, bureaucracy-heavy, over-administrated, unaccountable healthcare system is preferable to maintaining the status quo, which is killing and injuring unnecessarily, and at an alarming rate.

“Yes, with something as colossal as this, when so many people are ill and dying, and terrified of going in to hospital, for fear of what might happen to them in hospital. And who are coming out of hospital more ill than when they went in. that should just not be happening,” says Fyfe.

“If this can force them into doing something, then it has all been worthwhile.”

“Fiat justia ruat caelum” said English Justice William Murray in the Somersett case in 1772, which precipitated the abolition of slavery. ‘Let Justice be done, tho’ the heavens fall.” None of us want the needless abolition of the NHS. However, if the alternative is to have a health service that is as likely to kill or maim prospective patients as it is to cure them, then it is right - if not necessary- that the whole sorry edifice be torn down and reappraised if it will make it able to carry out its most basic function.