Three babies in Letterkenny General Hospital have been infected with MRSA.

Clearly, the Hospital is answerable for these infections. They have occurred in the health care setting; the babies cannot be accused of any contributory negligence in the matter.

Their respective parents cannot be held responsible either; they had contact, in each case, with just one baby.

Indeed, these are absurd notions, born of desperation to dodge responsibility.

They have meaning only to medical practitioners and health care managers willing to delude themselves that they can avoid shouldering responsibility for such infections in the absence of being confronted with a video or other visual record (and therefore, presumably unchallengeable) of the mechanism of infection.

What is now clear is that the Chief Executive of Letterkenny General Hospital knows someone in the Hospital is the source of these infections.

He is obliged in criminal law to ensure that person does not cause any more infections.

I endorse and support, I believe, the principle of evidence-based medicine (“EBM�).
I do so having no medical qualifications whatsoever because the validity of the principle, I believe, transcends the practice of medicine.

Apparently it is claimed that EBM is relatively new. Initially, that’s a surprise. It dates from, it appears, about 1996. While still supporting its practitioners I doubt this claim. It claims too much. It seeks to appropriate the word evidence to apply only to some evidence and not to other evidence. Did the medical profession not act on evidence before 1996?

I think it did.

The practice of bloodletting lasted for at least 2,000 years with no proven benefit to the modern mind. This did not mean it could not be justified. The justification lay in the acceptance of the theory of the four humours.

According to the theory, a human person was, in effect, constituted of a mixture of the four humours. Bloodletting was calculated to affect the balance of these humours. The effect of these humours, black bile, yellow bile, phlegm and blood extended to the explanation of character.

Those with too much blood were sanguine. Those with too much phlegm were phlegmatic. Those with too much yellow bile were choleric, and those with too much black bile were melancholic. To be sanguine is to be courageous, hopeful and amorous. To be phlegmatic is to be calm and unemotional. To be melancholic is to be depressed, sleepless and irritable. To be choleric is to be easily angered and bad tempered.

It is relatively easy to find living examples of these types and, having done so, to think that that discovery is supportive evidence of the theory of the four humours.

The alternative theory, that of EBM, is to follow the scientific method.

Based on observations of a phenomenon, a scientist may generate a model. This is an attempt to describe or depict the phenomenon in terms of a logical physical or mathematical representation. As empirical evidence is gathered, a scientist can suggest a hypothesis to explain the phenomenon. This description can be used to make predictions that are testable by experiment or observation using the scientific method. When a hypothesis proves unsatisfactory, it is either modified or discarded.�

The significant word is “hypothesis�. The quote suggests that the hypothesis follows the gathering of evidence. This is not likely. The hypothesis, or its predecessor (another hypothesis) must precede the gathering of evidence. This is true even when the evidence presents itself to us almost complete, say, when a body is discovered with a knife sticking out of its back. We have already formed the view that such circumstances are more consistent with murder or manslaughter than with suicide or accident.

The “scientific method� is not new. Eratosthenes applied it to the measurement of the circumference of the Earth in 240 BC. He learned of a well at Syene in southern Egypt, where the sun, on the summer solstice, shone directly down into the well. At Alexandria in northern Egypt, on the solstice, the sun was not overhead; it was at an angle of seven degrees 12 minutes. He estimated the distance from Alexandria to Syene and concluded that that distance represented one fiftieth of the circumference of the Earth, because the angle of the sun in Alexandria on the solstice was one fiftieth of a circle. Of course, he also concluded that the Earth was circular in shape.

The quality of the hypothesis is critical. So, too, is the ability to collect evidence.

Generally the Minister for Health and Children expounds a hypothesis to explain health care infections. These are infections contracted almost exclusively in places such as hospitals and nursing homes. The Minister’s theory focuses on the supposed natural history of the pathogens involved. It resolutely assumes that the first and principal defence of humanity from pathogens is antibiotic use and that that defence has been breached. We know this because, in the context of addressing health care infections, she castigates the medical profession for over-prescribing antibiotics in the past. Sometimes this idea is elided into the idea that it is consumption of antibiotics that is the problem and by implication that the patients are responsible.

She does endorse other ideas but, in doing so, implies that the general public, like the medical profession, are implicated in the chain of causation through visiting patients in hospitals.

What is revealing is her own admission that you can only manage what you measure.
It was only in March 2008 that she made Clostridium difficile a notifiable disease.

This was the only method of determining the incidence of this dangerous, often fatal, disease.

This proposition was the subject of a post HERE in 2007.

EBM is of little use as an idea if it is not preceded by the appropriate hypothesis, uncontaminated by an agenda to dissipate and diffuse responsibility and also preceded by the effective search for evidence.

The Department of Health and Children is in Hawkins St. in Dublin 2. Hawkins St. is a short street.

At the end of the street there is a memorial in Victorian style to Constable Patrick Sheehan who died, in 1905, trying to rescue a workman from a gas filled sewer.

The gas must be still there, affecting the Minister for Health.

The Health Service Executive is, currently, dysfunctional and a failure. It has failed on a number of fronts but consistently it has failed on the issue of hospital hygiene. The extreme cases of Ennis General Hospital and now St. Columcille’s Hospital where multiple deaths through nosocomial infections have taken place are representative of the general situation.

The Minister’s response to the situation is bizarre, and reported HERE:

She pointed out that the health service has a national plan to tackle health acquired infections which would see them reduced by 20% in the coming years, and MRSA in particular by 30%.

This would involve a reduction in the use of antibiotics, she said, of 20%.

The reference to antibiotics is a reference to her theory that health care infections are caused by the evolution of microbes. She attributes the evolution to excessive use of antibiotics.

She is not deterred in her assertions by any contrary evidence. Like the fact that Irish hospitals have a low standard of hygiene and that poor hospital hygiene is the cause of the infections. Or the fact that Clostridium difficile has not perceptibly evolved. Clostridium difficile is the infection that caused the deaths in Ennis and St. Columcille’s.

One can only feel, if the gas is not the explanation for her views, that she is motivated by the fact that no person or institution is answerable for excessive use of antibiotics and no legal liability would attach to the HSE if her view prevails.

I suppose I am not alone in finding the “centre of excellence� phrase new. But am I alone in feeling the phrase is, somehow, a reproof?

It has overtones of the concept of a new year’s resolution. That concept has universal approbation (grouches excepted), brooking no dissent on the desirability of the idea of such resolutions. It also invokes a notion of “the norm� that is somewhat (mistakenly, I say) exclusionary. I have in mind the near certainty that Josef Stalin, or indeed, George W. Bush, never did or do make new year resolutions or ordered the creation of a centre of excellence.

I suggest the reason for this has nothing to do with their characters; it has to do with the fact that neither of them is (or was, in the case of Uncle Joe) a businessman. (Bush tried his hand at business but he was not a businessman).

The phrase is a stroke of dubious, comparative advertising genius and essentially, only a business consultant’s faddish phrase. After all, in what field do we establish a “Centre of Mediocrity�? Or a “Centre of the Shoddy�?

It collaterally depreciates possibly perfectly serviceable institutions. Or, given the current use in Ireland, it brilliantly distracts attention from institutions which are far from serviceable like, reputedly, Our Lady of Lourdes hospital in Drogheda, as seen HERE and HERE.

Who ever aspired to have a hospital that was not excellent?

The real drawback of the “centre of excellence� phrase is its avoidance of consideration of what we have, in favour of what we, by implication, have not.

There is abundant evidence that hygiene in hospitals is poor. See HERE and HERE.

Here is a quote relating to Our Lady of Lourdes hospital in Drogheda.

On the ‘Rate my Hospital’ website, patients or their relatives are asked to rate hospitals on a scale of one to five under a wide range of headings, including car parking, cleanliness, quality of care, catering and many other areas.

The Lourdes Hospital in Drogheda scored an average of 2.39 (48%) under hygiene among the 369 people who completed surveys on services at the hospital while Mallow scored an average of 4.20 (84%) among the 49 people who completed surveys on it.

Note the reference to St Columcille’s Hospital in Loughlinstown, Co. Dublin. This hospital and its suspect hygiene has obliquely featured in a previous post HERE.

In relative terms, fixing hygiene problems is cheap. Very little technology or new infrastructure would be needed. The Dublin County Coroner believes the appointment of a microbiologist in St Columcille’s Hospital in Loughlinstown, Co. Dublin would avoid the situation where he, the coroner, encounters the consequences of a hygiene deficit in the hospital, but it is not obvious that such an appointment is absolutely necessary. After all, we would hardly expect the microbiologist to go about actually cleaning the hospital.

The “centre of excellence� phrase has one merit; it draws attention to the centre. The centre is the Government. The Government is accountable for what is wrong with the Health Service. (The Irish Constitution, Article 28, 4, 1 and 2).

4. 1° The Government shall be responsible to Dáil Éireann.
2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

This is the legal position.

“The Bitter Pill� by Doctor X is a small effort to improve the Irish hospital health system and, as such, is required reading by all interested and concerned persons.

This post is an unashamed plug for the book, published [2007] by Hodder Headline Ireland.

The author is an anonymous junior hospital doctor, concealing his (I say her) identity as Doctor X. Currently I have read only the chapter entitled “Dirt and Bugs�, but on the strength of that alone the Minister for Health will in future be unable to “spin� the shocking levels of nosocomial infections in Irish hospitals.

There is a depressing conclusion also; most intelligent lay persons would have no difficulty envisaging the state of affairs revealed by Doctor X in “Dirt and Bugs� (without the benefit of his/her revelations). When the Health Service Executive issue hospital “hygiene audit� results, they, as professionals, must already know what Doctor X knows and therefore they know that the hygiene audits are misleading as to the true state of affairs in hospitals.

The following is the transcript of a telephone interview on “The Breakfast Show� on Newstalk Radio, broadcast at 7.10 am on 13th September 2007.

The transcript is a free interpretation of what was said and has been subject to Ciceronian editing (in other words I have changed what was said to what might and should have been said). (The interview ended abruptly and prematurely, leaving the impression that the interviewer had to answer a call of nature).(I have had time, too, to change out of my pyjamas).

INTERVIEWER: The Ryan family of Cork have issued proceedings in respect of the death of Mr. Ryan in a Cork hospital in 2002. An inquest held last November found he had died from MRSA. Does this indicate there will be a flood of such cases coming before the courts?

SELF: I don’t think so. The point about the Ryan case is that the inquest made a finding that the deceased died of a particular form of MRSA – MRSA bacteraemia, which is a form of blood poisoning. That’s a notifiable disease; other forms of MRSA are not. The Ryan family, like all Plaintiffs must prove negligence against the defendants.

INTERVIEWER: The newspaper report confirms that there will be many such cases taken?

SELF: The newspaper report also states that the case “alleges the pensioner died after contracting the superbug through contributory negligence”. Contributory negligence is what a Plaintiff is found to be guilty of, not a defendant.

I would like to re-capitulate about MRSA. MRSA is a variant of a relatively common bacterium. It is overwhelmingly a nosocomial infection; that is, it is contracted in a health care setting. It is a hospital hygiene issue. Hygiene is a management issue, not a medical issue. That means that the wrongful infection of a person by MRSA in a hospital setting is a matter of ordinary negligence and not a matter of medical negligence. The standard is different in each case.

INTERVIEWER: Are there other difficulties facing the Plaintiffs in the action?

SELF: Proof of ordinary negligence is easier than proof of medical negligence. A potential difficulty, I think, is the effect of the Statute of Limitations. Under the Civil Liability and Courts Act 2004 (brought in by Mr. McDowell) the period within which proceedings must be issued for personal injuries was reduced from three years to two years. The Plaintiffs, in the instant case, may argue that time did not begin to run until they got the result of the inquest; that is, that they did not know who had caused the death of Mr. Ryan until then.

INTERVIEWER: Do they have any advantages?

SELF: Not particularly. Every Plaintiff suing in respect of MRSA infection faces a number of irrational distinctions. There is the, to my mind, irrelevant distinction between MRSA infection of the blood and other locations for the infection. On the point of dangers from biological agents; the staff of a hospital are specifically protected by Statutory Instrument from biological agents at work. There is no such provision made to protect patients. Arguably Section 30 of the Health Act 1947 is a protection to patients, but arguably it is not. It reads as follows:

30. —(1) A person who knows that he is a probable source of infection with an infectious disease shall, in addition to taking the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent his infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.

(2) A person having the care of another person and knowing that such other person is a probable source of infection with an infectious disease shall, in addition to the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent such other person from infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.

(3) A person who contravenes subsection (1) or (2) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds,

In any event, if it applies, it applies to staff as well as patients. So, staff are more protected than patients.

A civil action against a medical practitioner or a health care facility will throw an immediate burden of proof on a Plaintiff in such an action.

Some obvious burdens would be the obligation to prove injury and to prove the existence of a duty of care on the part of the Defendant.

The difficult element would be to prove the breach of the duty. The fact of the injury is not proof of the breach. Essentially, in principle the Plaintiff will need to prove the chain of causation leading back from the injury to some default of the defendant. The Plaintiff will also have to prove the injury was a foreseeable consequence of the breach of the duty.

All of this flows from the principle “he who asserts, must prove�.

There is however a practice permitting the reversal of the burden of proof in some circumstances.

That is generally stated as arising where the matter is peculiarly within the knowledge of the Defendant.

In Rothwell v Motor Insurers Bureau of Ireland [2003] 1 IR 268 Hardiman J. reiterated this by requiring that it be “peculiarly within the Defendant’s capacity for proof�

On the facts in Rothwell this was reasonable; neither the Plaintiff nor the Defendant were privy to the circumstances where an oil slick was on the public road. An unknown driver had deposited it there (it seemed) and the Supreme Court found that the burden of proving its deposition by negligence lay on the Plaintiff and did not shift to the Defendant to disprove.

Regarding the contraction of a nosocomial infection such as MRSA, a number of causative factors have been postulated as being the ground or source of such infections. In the absence of direct sampling in a particular case, linking, say, the infected patient’s nosocomial infection with the unwashed hands of a nurse or a doctor, or the presence of MRSA in the bed or on the utensils being used to treat the patient, only the fact of infection and the proof of known and provable defaults in hospital hygiene may be available to the court to make a judgment upon.

A health care facility must be taken to be the master of its infrastructure. Therefore, unlike the defendant in Rothwell, it is open to it to disprove an inference of negligence arising from proof of infection of the Plaintiff and proof of general deficiencies in hospital hygiene. Recent references to the “obligations� on visitors to patients regarding hygiene may be directed more at establishing a plausible basis for undermining such an inference than at seriously seeking to protect patients. After all, who has ever proved a visitor infected a patient?

Essentially advancing the case for making such an inference is an appeal to make a judgment based on circumstantial evidence. There is nothing deficient in such evidence. It is relied on in circumstances where, in the light of logic, experience and common sense a reasonable person may determine an effect is more probably caused by negligence than not.

The conference is in the Edmund Burke theatre in the Arts block of Trinity College, Dublin. It’s running late on schedule, probably due to the change of venue from Emmett to Burke theatre.

This is the MRSA collection, having regard to the conference in Trinity college tomorrow.

HERE and HERE and HERE and HERE and HERE and HERE

Irish criminal law frequently criminalises behaviour without requiring the prosecutor to prove facts directly connected with an event. The word “calculated� frequently is used to address the issue of purpose or intention. If an act is generally known to have a particular outcome and in an instant case has that outcome it is clear that, at least subject to rebuttal evidence, the accused knew or ought to have known his/her act would have that outcome.

In that sense the accused can be said to have intended that outcome and this accords with the general understanding of the meaning of “calculatedâ€?. (more…)