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 breach of the Control of Substances Hazardous to Health Regulations 2002 (COSH) can be argued.
The legislation was previously only used in industrial accidents and places a requirement on employers to control exposure to hazardous substances to prevent accidents and illnesses.
Many accident compensation lawyers had argued that MRSA should come under the definition of a "substance hazardous to health" and that if the legislation applies to the staff working in the hospitals, then it should also apply to patients who are in the hospitals.
Lady Clark has recently ruled that the Control of Substances Hazardous to Health 1999 regulations not only apply to employees in the Health Service but also to patients. This means that the Health Service will have to show that they took all the steps in terms of the regulations to protect patients in so far as reasonably practicable to prevent and control the biological agent in question. The regulations go far beyond the duty of reasonable care and common law of the NHS.
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."
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