6. 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 in the circumstances. We have discussed this with Mrs O to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
7. Mrs O is claiming the Practice took too long to diagnose L with haemophilia A because it did not listen to her concerns about her son’s health and failed to properly review the results of his blood tests. Mrs O says these failures by the Practice led to a delay in L being diagnosed, which led to him needing more intensive and more frequent treatments.
8. Mrs O’s complaint to us relates to the care her son received at the Practice. But, in providing information about her concerns, Mrs O also highlights what she believes to be failures to diagnose haemophilia A when she contacted 111 (the NHS urgent care phone number) and when she visited A&E and her son saw a maxillofacial surgeon (a specialist who diagnoses and treats patients with diseases affecting the mouth, jaws, face and neck). The Practice’s response to Mrs O’s complaint also highlights a further potential failure at the Worcester laboratory which processed L’s blood tests.
9. Taking all this into account, Mrs O could pursue the financial compensation she wants through a clinical negligence claim (when a patient takes their medical practitioner and/or hospital to court for compensation). Doing this would also allow all aspects of Mrs O’s concerns to be considered while we would only be able to look at the actions taken by the Practice.
10. Mrs O wants £3,060 for the cost of travelling twice a week to take L for his treatment and additional compensation for the stress caused to L and his family. Mrs O also says she wants the financial compensation to take account of her second son having haemophilia A, a genetic condition. She says if L’s diagnosis had been made before she became pregnant for the second time, she would have used IVF to remove the risk of her second child being born with haemophilia A.
11. Mrs O does not say how much compensation she wants beyond the £3,060 to reimburse the cost of travel. We have explained our severity of injustice scale to Mrs O but she is still unsure how much compensation she wants. It is key for Mrs O that the compensation amount should reflect that she would have used IVF to remove the risk of her second child being born with haemophilia A.
12. She is potentially suggesting a serious wider impact and if a legal claim was successful, this would attract a larger sum of money. Due to the timing of Mrs O’s second pregnancy and the timing of the claimed failings by the Practice, we believe it may be better for Mrs O to seek this level of compensation via a legal route.
13. In its response to the complaint, the Practice accepts it did not review the full results of L’s blood tests in April 2021. Mrs O was then pregnant with her second child so a diagnosis for L at that point would not have enabled her to use IVF for her second pregnancy. The detailed history of Mrs O’s communications with the health service regarding her son before April 2021 show two of her four interactions with the health service were with other NHS providers. We cannot comment on these under this complaint, which is only about the Practice.
14. A clinical negligence claim would allow all these interactions to be considered. This would increase the likelihood of Mrs O obtaining financial compensation that takes into account the wider impact of her claimed injustices.
15. The timescales for starting legal action are strict. We believe it is important Mrs O gets professional legal advice on her options before that window of opportunity closes. This will allow her to make an informed decision on whether this is a route open to her and whether it is more suited to achieving the outcomes she wants. Our recommendations for financial compensation are generally much lower than those achievable through the courts.
16. We have also considered whether there are any factors which mean it is not reasonable for Mrs O to explore legal action. Mrs O says she would prefer us to consider her complaint but she has not told us about any barriers preventing her from exploring her legal options other than her preference. It does not seem unreasonable to expect Mrs O to look at the option of taking legal action to get the financial compensation she wants.
17. If successful, this route could potentially achieve the levels of financial compensation Mrs O is looking for. It seems unlikely we could meet these expectations. It may also result in service improvements as a secondary outcome.
18. Following legal action, or if legal advice shows that legal action is not an option, Mrs O could return to us to look at any issues not already considered by the courts. In that event, we would need to consider the time limits set for us by law. So, we strongly recommend Mrs O gets legal advice without delay. We can only extend our time limit if there is good reason to do so and there are no unaccounted-for delays or gaps in the meantime.