A practice in the Lancashire area

4. Miss B complains on behalf of her uncle, Mr A, about the care and treatment he received from the Practice. She complains the Practice:

• did not send doctors as requested to check his health or follow up his condition • put his symptoms down to his pre-existing cancer • did not diagnose his condition • requested an ambulance under the incorrect category and • did not refer him to the eye hospital.

5. Miss B also complains about how the Practice handled her complaint. She says it took too long with the complaint handling process and did not set up and attend a meeting with Miss B and her family (it delayed and/or cancelled meetings). She says it also lost the initial complaint she made in June 2021.

6. Miss B says Mr A and his family found this, and other parts of the care she complains about, distressing. She says all this caused her uncle’s health to decline. This has impacted him physically, mentally and emotionally.

7. Mr A feels he will not recover or be able to have a decent quality of life. To try and manage his pain, he was taking 25 tablets a day, which was recently cut in half, the other half replaced by pain patches, which are not making much of a difference. He doesn’t get any relief from pain. Mr A is now classed as disabled and receives disability benefits, as he can no longer work. He now takes 21 tablets a day and no longer uses pain patches. He uses a walking stick to get around. He and his partner had to sell their home and move into a rented bungalow due to his now limited mobility. He is awaiting hip replacement surgery. He now has post-traumatic stress disorder (PTSD) because of the trauma he endured in the hospital and by the GP. PTSD is a mental health condition that causes anxiety and flashbacks and develops following a traumatic event. Mr A has lost over half his body weight in the space of six months.

8. Miss B seeks an explanation about what happened from the Practice and an apology. She also seeks financial compensation between £30,608 and £56,452.

9. Mr A was diagnosed with cancer between late 2020 and early 2021. The cancer was under control and he had an operation. In January 2021, Mr A deteriorated physically and mentally.

10. Miss B complains the Practice informed Mr A his deterioration was due to his cancer, and the Practice did not follow up or undertake tests.

11. Miss B says it was later found her uncle had endocarditis (inflammation of the inner lining of the heart chambers and valves). He was also found to have hemochromatosis (a condition of excess iron in the body) and high ferritin (a protein that stores iron) levels. Miss B feels the trauma was preventable had the Practice arranged the correct tests, scans and referrals and diagnosed her uncle sooner.

14. The law says we cannot investigate a complaint if a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable.

15. We have discussed this with Miss B to understand the outcomes she and her uncle want and their ability to pursue legal action. We do not consider whether legal action would succeed but whether it would be a reasonable option.

16. After careful consideration, we have decided it would be reasonable for Miss B to explore legal action.

17. Miss B complains the Practice did not send doctors as requested to check her uncle’s health or follow up on his condition. She says the Practice put his symptoms down to his pre-existing cancer. She says, due to this, the Practice did not diagnose endocarditis, hemochromatosis and high ferritin levels earlier.

18. Miss B also complains the Practice requested an ambulance under the incorrect category, and her uncle lost consciousness while waiting for it. She also complains the Practice did not refer him to the eye hospital.

19. Miss B says these events caused her uncle emotional and mental distress and chronic pain. She says he has needed PTSD-focused counselling/therapy and physical rehabilitation. One of the outcomes Miss B seeks is financial compensation.

20. It appears she has legal action available to try and achieve this. So we considered if it is reasonable for us to expect her to pursue this.

21. We recognise Miss B seeks outcomes other than financial compensation, including an apology. We appreciate this is not something someone can directly request as an outcome of a claim for clinical negligence. We understand, however, it can be achieved as an indirect result of legal action.

22. Our Service Model Guidance says if someone seeks a mix of outcomes, some of which they cannot achieve through legal action, we should still consider if it is appropriate for someone to pursue legal action.

23. One of the things we consider is the level of compensation someone wants and if it is an amount we are likely to recommend. If it is not, our Service Model Guidance says we are to consider if it is reasonable for someone to pursue legal action to achieve this. In general, the courts have greater powers to recommend higher sums of compensation.

24. In deciding on a level of payment in recognition of an injustice suffered (a financial remedy), we review previous cases where the person affected experienced similar injustice and what payment we recommended.

25. We also consider our guidance on financial remedy, which contains our severity of injustice scale. This scale contains six different levels of injustice (which increase in severity) that a complaint could fall into. Each level links to a range of the financial amounts we would usually recommend in those circumstances.

26. Miss B told us she and her uncle want between £30,608 and £56,452. We reviewed our guidance to consider whether we would be likely to recommend a financial remedy at this level.

27. Having done so, we consider the level of compensation Miss B wants to be more than we might recommend if we went on to find the injustice Miss B tells us about. We think if we found failings which resulted in the claimed injustice, we would likely recommend somewhere in the £3,000 to £9,950 range (level five on our scale).

28. Our Service Model Guidance says if the financial remedy someone wants is higher than what we would likely recommend, we should discuss this with the complainant. If they want more than what we can recommend, we should assess the complainant’s ability to pursue legal action, including any reasons they have about why they cannot do so.

29. On the basis we are unlikely to achieve the level of financial remedy Miss B wants (as set out above), we have considered Miss B and her uncle’s circumstances and their ability to take legal action.

30. We appreciate Miss B tells us her uncle experienced different injustices. This includes Mr A being classed as disabled and no longer being able to work. It also includes PTSD because of the trauma he endured because of the Practice.

31. Our guidance on financial remedy says multiple types of injustice do not usually add to the overall severity of injustice. We normally decide on any financial remedy based on the primary (most severe) injustice.

32. We asked Miss B if there are reasons she cannot pursue legal action on behalf of Mr A. Miss B said she felt it was suitable to bring the complaint to us first. She also said the legal route would be expensive. Miss B has not given any reasons why she would be unable to pursue legal action. While we acknowledge there are costs involved, there are also options for no win no fee representation.

33. As we cannot see any reason which might prevent Miss B exploring legal action further, we consider it is reasonable for her to seek legal advice.

34. In summary, we are unlikely to recommend the financial remedy Miss B wants on behalf of Mr A. There is a possibility she can obtain this through legal action, and we cannot see any reasons preventing her from pursuing this. We have decided it is reasonable for her to look into this further. This means, by law, we cannot consider her complaint further.

35. We appreciate our decision may be disappointing for Miss B and Mr A. We recognise she seeks a resolution on events which have been very distressing for them. We hope our decision assures her we carefully considered what we might achieve for her and the best route to pursue her complaint through.

36. If Miss B receives legal advice which suggests she would be unable to pursue legal action further, she can ask us to consider her complaint again. We would need to see evidence of any legal advice she gets to demonstrate she has exhausted this option.

37. We would also add that the non-financial outcomes, like the apology Miss B seeks on behalf of Mr A, can come about as a by-product of legal action. However, our Service Model Guidance says someone can return to us with outcomes which they cannot normally achieve through legal action afterwards. So, this may be an option for her if these outcomes remain outstanding following legal action.

38. Lastly, we have a time limit for considering complaints. The law says a complaint should be made to us within 12 months of someone becoming aware of the need to complain. We can put this time limit aside, but only when there are good reasons. Therefore, if Miss B does want us to consider her complaint again, she should come back to us quickly.

1. Miss B has complained to The Parliamentary and Health Service Ombudsman on behalf of her uncle, Mr A, about the care and treatment he received from a practice in the Lancashire area (the Practice). We appreciate this is a difficult matter for them and their family. We recognise Mr A found his care distressing.

2. We have carefully considered Miss B’s complaint and have decided it appears reasonable for her to take legal action in relation to her complaint. This means we cannot consider her complaint further.

3. We hope this statement clearly explains the reasons for our decision and why legal action appears better suited to achieving the financial outcome Mr A wants.