9. The law says we cannot investigate a complaint where a person has, or had, the option to take legal action, unless we consider it is not, or was not, reasonable to expect them to pursue this. Clinical negligence can take place where there has been a failure to carry out appropriate treatment and a patient becomes injured as a result.
10. We consider Mrs L has the option to take legal action to pursue her complaint, based on the clinical nature of the issues she complains about, and the financial compensation she would like.
11. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
12. We discussed this with Mrs L to understand her circumstances. Mrs L said she is facing terrifying financial pressure, as she cannot work. She explained she has contacted three solicitors who say as chronic post-operative pain is not uncommon, they cannot take on her case on a ‘no win no fee’ basis.
13. We reviewed the correspondence between Mrs L and the solicitors she contacted.
14. Mrs L provided one response from a Solicitor explaining their decision not to accept her case. It says, ‘In order to be successful with a clinical negligence claim we have to show that the Defendant has breached their duty of care to you (negligent act) and as a result of that breach that causation (injury) has occurred, and we have to show this on a balance of probabilities 51% or higher and we do not believe that your case would exceed those prospects. Unfortunately, post-operative ileus is a side effect of a hernia, and hernias are a recognised risk of the procedure that you underwent. As such it is likely these would be regarded as non-negligent complications of your surgery and as such, we would be unable to establish a breach of duty’.
15. Mrs L said she has not kept a written response from the other two solicitors. However, she advised that they declined her case for the same reason, that she does not have more than a 51% chance of winning.
16. Having reviewed this information, we consider that Mrs L still has the option to explore a ‘no win on fee’ arrangement. This is because it seems the complaint she has made to us is different from the claim the solicitors she has spoken to have considered.
17. The solicitor’s response suggests Mrs L does not have a legal cause of action because post-operative development of ileus and a hernia is common. In other words, there is not enough evidence to be able to say Mrs L’s post-operative complications are because of clinical negligence.
18. However, in Mrs L’s complaint to us, she is not complaining about developing an ileus or a hernia because of negligence during her operation. Instead, she complained that the Trust failed to treat these post-operative complications after her operation.
19. Mrs L said after her operation she experienced chronic pain, continuous vomiting, and she could not eat. She said her parastomal hernia was not identified until 4 August 2020, when the Trust eventually did a CT scan to investigate her pain. She also complained of a failure to treat her ileus during this period. Mrs L said it was these issues that caused her to experience ongoing chronic post operative pain.
20. The question of whether someone has a legal route available to them must be considered based on the actual complaint brought to us. Mrs L’s complaint to us is not about her operation on 28 July 2020, but the care and treatment after this.
21. We therefore consider that Mrs L has a legal route to pursue her complaint further. Despite her previous contact with solicitors, that legal route has not been fully explored.
22. We also note that clinical negligence claims causing personal injury must be pursued within three years from when the incident happened. Mrs L therefore has limited time to pursue legal action. As a court may be better suited in giving Mrs L the financial compensation she wants, we do not want to disadvantage her by using the time she has left for our process.
23. Although Mrs L says she cannot afford to fund a claim herself, we do not consider it unreasonable for her to pursue a ‘no win no fee’ solicitor. Having spoken with her to explore this, we have not seen any other reason why legal action would not be reasonable for her to pursue.
24. We have discussed this with Mrs L to make sure she understands the reasons for our decision and the difference between the issues in her complaint to us, and those she took to the solicitors.
25. After this discussion, Mrs L contacted us to say she had contacted two more law firms who have also declined her case. We have not seen the reasons for their decision, or the information Mrs L gave them. We therefore cannot be sure of the exact issues these firms considered when declining Mrs L’s case.