Kettering General Hospital NHS Foundation Trust

4. Mr C complains about a gastroscopy at Kettering General Hospital NHS Foundation Trust which took place on 20 January to investigate digestive issues following an emergency admission on 18 January for a possible gastric outlet obstruction. He complains that:

· following the procedure, a doctor told him the camera perforated his stomach which meant he needed an emergency operation to repair the damage.

· two responses contradicting the doctor’s view have been issued on 14 May and 27 May, by the Trust, advising it wasn't the camera which perforated his stomach but possibly due to an abnormally weak and inflamed area giving way when his stomach distended, and standard procedures and protocols were followed.

As a result, Mr C says he has experienced stress, pain, and anxiety. Which has also affected his family. Mr C is seeking up to £10,000 in compensation for all that has happened.

5. On 18 January, Mr C woke up vomiting bile. His wife called 111 who advised that an ambulance was needed. He was taken to A&E, admitted, and was given a CT scan and taken to a ward.

6. Mr C was advised on 19 January to go nil by mouth.

7. On 20 January, Mr C is seen by Dr K who advises he will undergo gastroscopy. During the procedure Mr C says he was in a lot of pain. After the procedure he was asked by Dr K if he had an X-Ray, he said he had not and then Dr K left the ward.

8. The same day, in the evening, Dr D came and apologised to Mr C saying he had perforated his stomach lining with the camera. Mr C says Dr D held his hand as he apologised. Mr C then rang his wife to tell her the news.

9. On 21 January, Dr K again asked Mr C whether he had an X-Ray. Again, he answered no. A computerised tomography (CT) scan was then arranged by Dr K for further exploration, Dr K confirmed that there had been a perforation in his stomach lining. Dr K said there would need to be an emergency operation to repair the perforation. This took place on 22 January.

10. On 3 February, Mr C is discharged from the Trust. Mr C left hospital with a feeding tube and his original issues were not treated.

11. On 3 March, Mr C complained to the Trust.

12. On 14 May, the Trust provide Mr C with a final response where they said that the perforation in Dr D’s view was due to a weakness of the area at the far end of the stomach.

13. Four months later, on 29 September, Mr C makes a complaint to the PHSO.

15. The law (Health Service Commissioners Act, 1993) 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. We have discussed this with Mr C to understand his circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.

16. Mr C is only seeking compensation as an outcome to his complaint. He is also seeking an amount of up to or around £10,000. As with all complaints we receive, when considering if there is an alternative legal route, we discussed our Severity of Injustice Scale with Mr C and what financially remedy may be awarded if we were to fully investigate and find failings that have not been satisfactorily remedied.

17. We gave a broad indication this level of injustice may sit at around a level three or level four on our scale of around £500 to £2950 where, if we found failings, the impact may be significant and go beyond inconvenience. In consideration of our scale, Mr C believes this range not suitable.

18. We next went onto establish if there are any barriers to Mr C pursuing a legal claim. Mr C informs there are no barriers for his pursuing an alternative leal remedy and has said he would pursue this action if that was our decision.

19. Our the PHSO Service Model Guidance (available online) says:

20. ‘The law says we cannot investigate if there is or was a legal remedy that the aggrieved could pursue or could have pursued unless it is (or was) not reasonable for them to do so (Legal requirement). These legal remedies include established methods of challenging a decision. For example; a potential claim of clinical negligence or an option to pursue a Judicial Review.’

21. It also says: ‘If we can clearly see a potential claim in negligence we should consider bringing that to the attention of the complainant, regardless of what they have said they want to achieve. (Policy requirement) It will be for the complainant to decide though whether they want to consider taking legal action.’

22. Mr C explains because the Trust caused a perforation in his stomach, during the gastroscopy, when he was admitted to hospital for another stomach related issue, he has been in pain since this point (January 2019). This has also caused him stress and anxiety.

23. In this case, Mr C is claiming physical harm because of an accident he tells us occurred at the Trust; clinical negligence.

24. Our role is not to provide evidential leverage for legal claims but to consider if it is the right time for us to investigate balanced against a range of other considerations and factors.

25. It was explained to Mr C that the law says we cannot investigate if there is or was a legal remedy that the aggrieved could pursue or could have pursued unless it is (or was) not reasonable for them to do so. He understood this and explained that he would pursue this option, given there are no barriers in him seeking a ‘no win, no fee’ claim if it meant he would be able to achieve compensation. He was very perceptive to this and accepted that if our decision was that he had an alternative legal remedy to pursue, he would do just that.

26. Consequently, it is our view that it is reasonable for Mr C to pursue an alternative legal remedy to attempt to achieve the levels of compensation he is seeking as an outcome. There are no barriers for him in attempting to pursue legal action.

1. We have carefully considered Mr C’s complaint about Kettering General Hospital NHS Foundation Trust (the Trust). We are sorry to learn of the events at the Trust on 20 January, the perforation to his stomach as a result of the gastroscopy and the ongoing stomach issues he has experienced since point. From his complaint we can see this has caused him stress, pain and anxiety. This has also affected his family. Under the circumstances, we consider Mr C could take legal action on the matter he has brought to us and recognise these events represent potential clinical negligence.

2. Mr C is only seeking compensation as an outcome to his complaint. He is also seeking an amount of up to or around £10,000 and has expressed his opinion that the compensation levels of between 3 to 4 of the PHSO’s Severity of Injustice Scale are not suitable.

3. In discussion with Mr C, there are no barriers for his pursuing a legal action and he has said he would pursue this action if that was our decision.