Issue 1 – Care and treatment
8. 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. We have discussed this with Mr D 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 into.
9. Mr D says because the Trust were negligent in caring for Mr E and failed to keep him safe while under its care, he suffered several life changing injuries, following a number of incidents that happened. Mr D says Mr E was allowed seriously injure himself, leading to fractures and lacerations to name a few injuries, due to the Trust’s negligence. He says Mr E’s life has been changed by the injuries which have affected his ability to live a normal life. Mr D also says the incidents have caused him and Ms D stress and anxiety. As a result, Mr D would like the Trust to acknowledge the failings, apologise, and pay compensation.
10. Based on what Mr D has told us, we consider he has a clinical negligence legal remedy available to him. According to Citizen's Advice, ‘If you’ve been injured as a result of negligent medical treatment, you may be able to take legal action for compensation’. The events complained about happened between September 2019 and April 2020. This falls within the three year statutory time limit to start a clinical negligence claim.
11. On his complaint form, Mr D indicates he is not considering legal action. When we first spoke to Mr D, we asked why. He said due to the trauma the family had been through he did not feel he could pursue legal action.
12. Mr D said by bringing his complaint to us he would like the Trust to acknowledge the failings, apologise, and pay compensation. We asked what level of compensation would put this right for the family. Mr D said he did not have a specific amount in mind. We sent him our financial remedy guide and requested the complaint file and medical records from the Trust.
13. We spoke to Mr D again in August. He told us the level of compensation that would put this complaint right for the family was £1,000,000. This figure would fall in level six of our severity of injustice scale, which begins at £10,000. This category includes cases where an individual may be permanently affected by events complained about. The impact Mr D says the events had on Mr E are life changing, which he feels may fall within level six. We asked Mr D what outcome was most important to him to fully resolve his complaint. He said while it would be nice for the Trust to acknowledge the failings and apologise, it would mean nothing without compensation.
14. Mr D could achieve the main outcome he is seeking through the clinical negligence process, which is reserved for claims of this nature and for considering large financial payments. While our level six severity of injustice has no upper limit, the court process is reserved for financial rewards of this size. It is highly unlikely we would be able to achieve a financial remedy of this nature for Mr D through our process. Mr D has also said his son is unable to live a normal life following the events, and that he and the family have suffered severe trauma. The courts are best placed to consider future ongoing care costs and psychiatric trauma. Mr D may also be able to achieve the apology and acknowledgement of failings he is seeking as a by-product of taking legal action.
15. When we spoke to Mr D in August, he said he brought us his complaint because it was cheaper. He did not indicate there was anything preventing him from pursuing legal action.
16. While Mr D initially brought his complaint to us first because he said it was cheaper, Mr D has not indicated he is unable to obtain funding to make a legal claim. We have provided Mr D with information on the Citizen’s Advice Bureau who help individuals who wish to make a claim. The support it provides can also alleviate concerns around making a claim. This may be helpful as he initially indicated he and his family had experienced a great deal of distress, suggesting it could be hard to make a claim. We have also advised Mr D of ‘no win no fee’ arrangements with solicitors’ firms. We explained this is free of charge and that any costs associated are usually clearly given by the law firm.
17. We considered whether the potential amount of time involved in making a legal claim is disproportionate to the costs Mr D would be awarded should he be successful. Due to the large amount of compensation Mr D is seeking, we do not consider it disproportionate for him to pursue a clinical negligence claim.
18. We also do not consider the nature of Mr D’s complaint to be so complex it would be difficult for him to pursue a clinical negligence claim.
19. In consideration of the law, and in the absence of any barriers to pursing legal action, we think it is reasonable for Mr D to pursue legal action to achieve the full amount of compensation and the apology and acknowledgement of failings he wants. If Mr D is unsuccessful, he can come back to us to consider his complaint, however it is important to note that it is unlikely we would be able to achieve the level of financial award he is currently seeking.
20. We acknowledge it may not have been easy for Mr D to bring this complaint to our attention and appreciate the time and effort he has taken in doing so. We hope we have clearly explained the reasons for our decision. We have provided Mr D with further information of organisations he can approach to gain additional advice and support about pursuing a legal claim and hope he finds this useful.