A medical practice in the Hampshire area

4. Mr A complains the Practice did not recognise the seriousness of the symptoms he was experiencing, and failed to diagnose giant cell arteritis (a condition that causes inflammation to the blood vessels, which can lead to blindness).

5. Mr A says that by the time he was diagnosed in hospital, he had lost his vision, which had a big impact on his ability to do daily tasks. It took him roughly a year to get his vision back and he had to have two cataract surgeries. He also says he has permanent damage to his optic nerve. Mr A would like financial compensation, and for the Practice to recognise its mistakes.

Failure to diagnose

7. The law says we cannot investigate a complaint where a person has the option to take legal action, unless we consider this is unreasonable in the circumstances. We have discussed this with Mr A 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 in to.

8. In general terms, clinical negligence takes place when a patient who had treatment becomes injured because of that treatment. Failure to carry out appropriate treatment could also amount to negligence. Because the complaint is about failing to diagnose a condition that has now led to potentially permanent damage, and Mr A is looking for compensation, it is likely he could take legal action by making a clam of clinical negligence.

9. In deciding whether it is reasonable for a complainant to pursue legal action, we consider the amount of compensation wanted and whether we are likely to recommend it, in relation to the injustice claimed.

10. Although Mr A is unsure about how much compensation he wants, we discussed with him the amount we would likely be able to achieve if failings were found. We explained how we use our severity of injustice scale. Mr A said that although he did not have a specific amount in mind, his aim was not to punish the Practice, but he recognised there was a big impact on his life because of what happened, and wanted any compensation to reflect this.

11. Mr A told us his main concern around getting legal advice was the cost, as there is no certainty he would win, and so he would want to take out insurance that would protect him in case of a loss in court. Mr A gave us evidence that he has approached a ‘no-win-no-fee’ solicitor, and that his case was not accepted due to a low chance of success.

12. When we consider if a legal route is available, we do not consider whether a case would be likely to succeed, but whether a legal cause of action exists to put things right. It is possible that there is still a legal cause of action even where chances of success are low. Where a legal cause of action exists, the complaint is properly within the remit of the courts, and we should not investigate a complaint unless we see it is unreasonable for the complainant to pursue legal action.

13. The solicitor Mr A approached says it is always a good idea to get a second opinion, as other solicitors may decide to take the case. They have also given information and guidance on how to get a second opinion. We agree it is good advice to get a second opinion in this matter, and we do not think this would be unreasonable for Mr A to do.

14. Mr A raised concerns that a ‘no-win-no-fee’ solicitor may take a big fee from any award that the court makes, and this may mean he will get the same amount as we recommend. We understand it may cause frustration if this were to happen. The law tells us we should not investigate where a legal route is available unless it is unreasonable to pursue it. Because we cannot know at this point what a court would likely award, we do not think this would prevent Mr A from taking a legal route.

15. Also, Mr A has also told us he thinks the Practice will delay and deny liability, which would draw out any legal process. He has told us he feels it would be wrong of us to step back now that his complaint is closer to its end. We understand Mr A’s point of view on this and recognise the frustration it may cause to begin looking into legal action at this stage. We do not consider that the time taken to pursue a legal route, or the potential for the Practice to delay, would mean it is unreasonable to get legal advice.

16. We directed Mr A to the AvMA charity, which offers advice to people who are considering making a claim for clinical negligence. It may be able to offer further advice on the concerns he has.

17. We have considered that Mr A was also looking for the Practice to recognise its mistakes as an outcome to his complaint. Although courts cannot order outcomes such as this, they can happen as part of a legal claim. We consider the compensation Mr A would like is the primary outcome for him, which a court can achieve, and that the recognition he would like could also be achieved as part of the legal action.

18. Having taken all the circumstances into account, we consider it is reasonable for Mr A to pursue legal action.

19. Mr A can return to us with any outcomes not achieved by the court. If Mr A does return to us in future, he should do so as quickly as possible, as delays in returning to us may affect any decisions we make regarding our time limit.

1. We have carefully considered Mr A’s complaint about a medical practice in the Hampshire area (the Practice). We consider Mr A could take legal action on the matter he has brought to us.

2. The law says we cannot investigate a complaint where a legal route is available unless we think it would be unreasonable for the person complaining to pursue it. We have fully considered all the information Mr A has given us about his complaint, and his reasons for preferring us to look into it rather than taking a legal route. We do not think that taking a legal route would be unreasonable in this case, so we cannot look into the complaint further.

3. We are sorry to hear about the issues Mr A has faced. He told us of the impact these had on his life, and we know this has been an incredibly difficult time. We appreciate this is not the outcome Mr A was hoping for, and he may be unhappy with this decision. We hope our explanations below will reassure Mr A that we have carefully considered his views.