Clinical Negligence Solicitor Laura Morgan, considers whether medical negligence can be used to compensate patients to whom blood-borne diseases are transmitted whilst receiving treatment in hospital.
In the wake of the recent revelations that an NHS gynaecologist has transmitted the hepatitis C virus to at least two of her patients, concerns have been raised about whether the current and proposed practices in relation to blood-borne viruses will put patient safety in jeopardy.
Currently, workers within the NHS who are known to be carrying any blood-borne diseases such as hepatitis and HIV are restricted from carrying out practices known as “exposure prone procedures”. These are invasive procedures where there is a risk that a patient’s open tissue could be exposed to the infected blood. In relation to hepatitis, once a healthcare worker has been diagnosed and is on effective treatment for the disease, this restriction will be lifted as the Advisory Group on Hepatitis has found that the risk of transmission during exposure prone procedure is low. This will in the near future be mirrored for those who are HIV positive as the risk of transmission whilst receiving treatment is considered to be extremely low.
However, the present case in the media shows that transmission can still happen; is any risk to patient safety, too much of a risk? Hepatitis C virus has the potential to be deadly if untreated and in the most extreme circumstances can lead to liver failure and liver cancer. Symptoms quite often are unnoticeable and it only becomes apparent that the virus is present once significant damage to the liver has already been caused.
Currently tests for the virus are only carried out at the commencement of employment. After this it is left to the employee to disclose whether they have contracted any disease, of which they could be unaware. In this case the gynaecologist was unaware that she was carrying the virus.
Should regular testing of NHS employees throughout their employment be introduced to ensure this does not occur again?
An NHS Trust that employs a clinician who complies with testing on commencement of their employment cannot be found to have been negligent if the employee contracts the virus without becoming aware and it is then transmitted to a patient.
Furthermore, whilst in the vast majority of clinical negligence cases against NHS clinicians the claim is brought against the Trust who employs them a claim can be brought personally against a clinician, but no claim is likely to succeed if the clinician can demonstrate that they were not aware that they had contracted the virus.
Therefore, there is a careful balance to be struck between the rights of clinicians and patients and no redress for accidental transmission can be sought from the employer or the clinical within the frame work of a clinical negligence claim.