15. 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 Mrs U to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but if it would be a reasonable option to look in to.
16. Mrs U says Mrs A was assessed by multiple healthcare professions at the Practice, the Trust and the Ambulance Trust who all failed to detect signs Mrs A had organ failure and peripheral artery disease.
17. 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’. An example of clinical negligence is when the health care provider, ‘failed to diagnose your condition or made the wrong diagnosis’ and ‘the care you received fell below medically acceptable standards’. Mrs U appears to be claiming negligence on behalf of the organisations involved.
18. From her complaint form Mrs U confirmed she may speak with a solicitor. During our first telephone call with Mrs U, she confirmed her family were wanting to speak to a solicitor about the complaint. From the complaint form and our discussions, we understand Mrs U is hoping to achieve compensation as a result of her complaint.
19. We spoke with Mrs U to understand how much compensation she wanted, to which she at first said she was unsure. We sent Mrs U our guide to financial compensation so she could see the types of injustices we make recommendations on, and the corresponding amount of financial compensation we can recommend if we uphold a complaint. Mrs U confirmed her family would want to pursue compensation of £10,000 or more.
20. Although we can recommend financial compensation, we have noted Mrs U seeks a large amount of compensation, which we rarely recommend. We do not consider compensation in the same way courts do.
21. We want to make sure Mrs U has the best opportunity to achieve the outcomes she wants. The clinical negligence process exists to put right these types of serious claims and to consider large amounts of compensation.
22. We think Mrs U could likely achieve more compensation if she pursued a legal route compared to a recommendation we could make.
23. Mrs U may have until January 2024, at the very latest to make a clinical negligence claim.
24. If we did go on to consider Mrs U’s complaint now, she may miss this deadline if she decided to pursue a legal route in the future.
25. If she does pursue the legal route now, she is able to bring her complaint back to us if she is advised she cannot claim clinical negligence.
26. During our phone call, Mrs U also said she was hoping to achieve an apology, acknowledgement and service improvements.
27. If Mrs U does pursue the legal route, she may be able to achieve mixed outcomes through the court process. For example, if the court decides Mrs A had poor quality care, the Trust will have to make sure the negligence does not happen again. Similarly, an apology and acknowledgement may be achieved as a result of the claim.
28. As Mrs U may be able to achieve all the outcomes she seeks through the court process, we consider it fair for her to seek legal action.
29. Mrs U also queried what would happen if she said she did not want to pursue legal action at this stage.
30. We explained that unfortunately, our decision around this is based on the law and we would have to consider if it was unreasonable to expect her to pursue a legal route, for us to look at the complaint at this stage.
31. We wanted to see if there were any barriers preventing Mrs U from pursuing a legal route. Mrs U did not raise any concerns about financial or other barriers.
32. Although Mrs U did not suggest there were any financial barriers to pursuing a legal claim, we would like to make her aware she could approach a ‘no-win no-fee' law firm to get advice on a potential clinical negligence claim. This service is free of charge and any costs are usually clearly stated by the firm, and at which stage of the process they would be charged.
33. Other factors we consider t, is whether the potential amount of time involved in a legal claim is unequal to the costs that would be awarded should she be successful. Due to the significant amount of compensation Mrs U is seeking, we do not consider it to be wrong for her to pursue a clinical negligence claim.
34. We also look at the complexity of the matter being pursued. In this case, we do not consider the nature of Mrs U’s complaint to be so complex that it would be difficult for her to pursue a clinical negligence claim.
35. We therefore think it is reasonable for Mrs U to pursue a legal route to achieve the outcomes she seeks, and we do not think she is unable to do this. For these reasons, we will not be considering this complaint further at this time.
36. If Mrs U pursues legal action but is advised she cannot make a clinical negligence claim, or she feels that her outcomes have not been achieved, she can bring her complaint back to us. We would advise her to do this quickly. This is because by law, we normally expect people to complain to us within a year of becoming aware of a problem. However, we can put our time limit to one side if we think it is reasonable to do this.
37. We realise discussing this complaint has been difficult for Mrs U, given the very sad circumstances. We thank Mrs U for bringing her complaint to us.