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 Mr D to achieve the outcome he seeks. We have discussed this with Mr D to understand his circumstances and the outcomes he wants.
8. Mr D claims in May 2020, the Trust failed to conduct an MRI scan of his spine, which would have found he had spinal cord compression. He seeks financial compensation for the impact the Trust’s delayed diagnosis had on him, and for the cost of his past and future nursing care.
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 meaning Mr D may make a clinical negligence claim against the Trust.
10. Next, we consider if it is, or was, reasonable to expect Mr D 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 Mr D to achieve the outcome he seeks, whether legal action would achieve all of the outcomes Mr D is looking for, whether the cost of a legal proceedings will take up a disproportionate amount of damages awarded, and whether Mr D can obtain the relevant funding for making the claim. We also explore if the complainant does not want to pursue legal action and determine if there is a good reason why.
12. Mr D seeks compensation from the Trust for the impact its alleged failed had on him, cost of his nursing care since the event, and his future nursing care. While Mr D does not share exactly how much compensation he seeks, we note he expects the Trust to pay for his nursing care for the rest of his life. With this in mind, we consider Mr D seeks a considerable sum of compensation, which a court may potentially award. He seeks no other outcome. For this reason, we can conclude a court can award the outcome he seeks.
13. Mrs D explains Mr D lives in a nursing home which is expensive, and she fears she will soon have to sell their house to pay for his care. This suggests they would not be able to fund a legal claim themselves. That said, we can refer them to organisations which can direct them to a local solicitor who may be able to represent Mr D on a no win no fee basis.
14. Mr D says he prefers not to pursue a legal case against the Trust because he feels he has little chance of success. We appreciate Mr D’s concerns. While we explore whether an alternative legal remedy exists, and whether it is reasonable to expect a complainant to seek remedy via a legal route depending on the outcomes they want, we do not involve ourselves with predicting court decisions.
15. We appreciate Mr D lives in a care home, and he has ongoing health needs. Solicitors receive remuneration for their work, and we see no reason why a solicitor would not work with Mr D to overcome any problems posed by his health or treatment.
16. Considering the financial outcome which Mr D seeks, we consider the courts are the most appropriate route for him to pursue his complaint. We see nothing to suggest it would be difficult for Mr D to pursue legal action with available assistance. For this reason, we will take no further action on Mr D complaint and refer him to organisations which may help.