South Warwickshire NHS Foundation Trust

3. Mr O says he was diagnosed with chronic rhinosinusitis (a condition where the sinuses are inflamed, causing breathing difficulty) on 28 August 2019. He complains the Trust did a procedure on 30 October which caused him pain and failed to treat his condition. He thinks the Trust failed to investigate and treat his problem, despite two outpatient appointments after the procedure, and seeking a second opinion.

4. He says he is in constant, chronic, debilitating pain in his head and nose. He explains the pain caused him to stop driving, give up his job, and it has affected his mental health. He feels angry and that the Trust lied to him about the outcome of his surgery.

5. He would like the Trust to apologise, explain what went wrong, and admit its mistakes.

6. He would like financial compensation for how he has been affected.

7. Mr O developed nasal polyps in January 2019, and his GP prescribed a nasal steroid spray. He had a hive-like rash on his chest and arms as an allergic reaction to this.

8. Mr O’s GP referred him to the Trust’s Ear, Nose and Throat (ENT) department on 5 July 2019. He was diagnosed with chronic rhinosinusitis on 28 August. On 30 October he had a procedure at the day surgery unit.

9. Mr O says after the procedure he bled heavily for a week and then developed an infection. He says a month later, during an outpatient appointment, the ENT prescribed an antibiotic (clarithromycin). Mr O said he told the Trust this antibiotic makes him sick, but it prescribed it anyway. He says the antibiotic did make him sick, so he got an alternative (amoxicillin) from his GP.

10. Mr O says he continued to be in a large amount of pain and to cough up green phlegm. In January 2020 he had a further ENT appointment to address the phlegm, as well as his facial and nasal pain. The ENT could not find what was causing the pain.

11. Mr O had a CT scan in February 2020, and it showed no issues. The ENT discharged Mr O on 4 March 2020. The Trust offered him a second opinion.

12. The Trust sent a clinic letter, dated 1 February 2021, to Mr O and his GP identifying an overactive muscle at the entry of his food pipe as being the likely cause of his swallowing difficulty. The letter also says this can cause reflux. The letter says omeprazole and Gaviscon were prescribed to keep the symptoms under control. It said reflux can cause nasal symptoms which may be affecting his chronic rhinosinusitis. The Trust suggested the GP considered a referral to gastroenterology if these measures did not control the reflux. It confirmed Mr O had been discharged from the ENT.

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 call this an alternative legal remedy (ALR). We have discussed this with Mr O’s advocate to understand the 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 O complains about the Trust’s treatment in August 2019, and how he was unhappy about this from October 2019. This was after having outpatient appointments and noting no improvement.

17. When Mr O brought his complaint to us in March 2021, he said he would be pursuing a clinical negligence claim. His advocate told us by telephone, on 27 April 2021, that Mr O was not taking legal action. We asked Mr O’s advocate what had changed. The advocate confirmed Mr O was unsure of whether to pursue a legal route but would decide this over the next month.

18. The law says the Parliamentary and Health Service Ombudsman cannot look at a complaint if an ALR exists unless it is unreasonable to take this option. We looked first at whether an ALR exists. Mr O has an ALR as he feels he has suffered clinical negligence. This can be pursued legally. Mr O is aware of this route. He has spoken with different consultants, most recently six months ago, while he was waiting for us to allocate his case to a caseworker. He says the outcome of these discussions supports the view that the Trust’s surgery caused harm. Based on this, we are satisfied that there is an ALR for Mr O to take.

19. We considered if it would be reasonable for Mr O to pursue an ALR. We know Mr O approached a solicitor 16-18 months ago. It seems he put this on hold as he was worried about how much it would cost him. There are ways that a claim can be pursued with minimal cost, such as by using a no win no fee company. Mr O also has an advocate who can support him with seeking legal help through such companies. While we understand Mr O’s concerns about cost, we do not think it is unreasonable for him to pursue a legal route. We realise Mr O is seeking different outcomes and financial compensation is one of these. These outcomes are important and could be achieved as a by-product of legal action.

20. We need to think about who the right organisation is to try and achieve the outcomes Mr O is seeking. If we were to investigate the complaint, and find failings, we can recommend that financial compensation is paid but this is often modest in comparison to what a court can award.

21. We asked Mr O how much compensation he is seeking. We understand this can be difficult to answer. We must do this to decide whether we are the right organisation to look at the complaint. We appreciate Mr O is not sure as he does not know whether he will be affected by the Trust’s treatment long term, or if he will be able to return to work. Given the impact of his injustice, we think it would be appropriate for this to be pursued legally.

22. Unfortunately, our service cannot be used as an intermediary or to strengthen a legal case by getting opinions from medical professionals on a likely prognosis. If an ALR exists, this must be pursued as the first course of action.

23. We understand Mr O feels he will soon reach a decision on whether he will pursue legal action. We are unable to keep a case open while a complainant decides whether to take legal action. We have seen there is an ALR available to Mr O and it is not unreasonable for this option to be pursued.

24. For the reasons given above, we will not be looking into this complaint further as Mr O has an ALR that should be explored first. We are sorry to hear how Mr O has been affected and we understand how important his complaint is.

1. We have carefully considered Mr O’s complaint about South Warwickshire NHS Foundation Trust (the Trust). We consider Mr O should seek taking legal action to look at the issues he brought to us.

2. We are sorry to hear about the circumstances of Mr O’s complaint. We think the issues are best suited for consideration through the legal process and will explain our reasoning below.