University Hospitals Sussex NHS Foundation Trust

2. Mrs A complains on behalf of her husband, Mr A. She explains that on 22 November 2014, her husband was diagnosed with renal cancer. She adds that tests on a sample of her husband’s lung tissue, taken on 22 January 2020, found the renal cancer had spread to his lungs. She complains the Trust should have tested her husband’s lung tissue sooner than it did.

3. Mrs A explains, consequently, her husband has undergone prolonged invasive treatment. She adds, they are both distressed and worried for his long-term health.

4. Mrs A asks for the Trust to apologise for not investigating her husband’s lungs sooner. She also asks for the Trust to compensate her husband around £50,000 for the invasive treatment and distress the earlier lung investigations could have prevented.

6. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances.

7. We first consider if there is, or was, a legal route for Mrs A to achieve the outcome she seeks. We have discussed this with Mrs A to understand her circumstances and the outcomes she wants.

8. Mrs A claims the Trust should have taken a biopsy from her husband’s lungs considerably sooner than it did. She says its negligence meant Mr A required prolonged invasive treatment, which has permanently changed his life.

9. Clinical negligence takes place when a patient who underwent a treatment becomes injured as a result of that treatment. Failure to carry out appropriate treatment could also amount to the negligence. With this in mind, Mrs A may make a clinical negligence claim against the Trust.

10. Next, we consider if it is, or was, reasonable to expect Mrs A to take such action. We should explain, we do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.

11. Before we make our decision, we explore whether the legal route is the only way for the Mrs A to achieve the outcomes she seeks; whether legal action would achieve all of the outcomes she and Mr A are looking for; whether the cost of a legal proceedings will take up a disproportionate amount of damages awarded, whether Mrs A can obtain the relevant funding for making the claim. We also explore whether there is a good reason the complainant does not want to pursue legal action.

12. Mrs A seeks around £50,000 in compensation. Most redress which the courts recommend is financial. With this in mind, the courts can achieve the outcome Mrs A seeks if her claim is successful.

13. Mrs A says she has finances available to fund a legal case against the Trust. We appreciate the cost of legal proceedings may take up a portion of the financial redress the court may award. Mrs A seeks a considerable sum. We do not consider potential costs to be disproportionate to the damages she seeks.

14. We also recognise that Mrs A may ask a solicitor to act on a ‘no win no fee’ basis. We can refer her to organisations which can help.

15. Mrs A says she will accept less compensation if it means we can consider her complaint. We appreciate Mrs A’s preference. Having discussed legal options with her, Mrs A is keen to progress her case and for us to refer her to helpful organisations as soon as possible.

16. With the above in mind, we see nothing to suggest Mrs A may not reasonably achieve the financial outcome she seeks though legal proceedings. Nor do we see anything to suggest it would be difficult for Mrs A to pursue legal action. For this reason, we will take no further action on Mrs A’s complaint but will refer her to organisations which may help her.

1. We have carefully considered Mrs A’s complaint about University Hospitals Sussex NHS Foundation Trust (the Trust). We consider Mrs A should take legal action to resolve the matter she brought to us.