8. The Law (section 4) says we cannot look into a complaint if a person has (or had) the option to take legal action, unless we think this is (or was) unreasonable in the circumstances.
9. We have talked about this with Mrs I to understand her circumstances and the outcomes she wants. We do not think about whether legal action would succeed but whether it would be a reasonable option to look into.
10. Complainants should raise a legal claim of clinical negligence within three years of first knowing of the concerns. Although Mrs I is complaining about a five-year period of care, she says she found out about her diabetes on 18 October 2021. As it is now March 2023, it is likely she will be in time to take legal action.
11. Mrs I says over five years, the Practice did not tell her she was getting diabetes, even though she had blood tests every year and sometimes more often than that. She says the Practice was repeatedly asked to notify her but failed to do so.
12. Mrs I says as a result of this, she was rushed to hospital on 18 October 2021. She says she still cannot remember what happened before she was admitted. She says the nurse took her blood tests and they came back showing she had diabetes.
13. Mrs I feels this is ‘medical neglect’ because everything could have been avoided if she had been told she might have diabetes. She says she could have made lifestyle changes earlier.
14. Mrs I says on 18 October 2021, she had a blood test taken that came back as HbA1C (glycated haemoglobin – when the sugar in our bodies sticks to our red blood cells) 50 mmol/mol. Shortly after this, she made lifestyle changes and managed to lower it to 48 mmol/mol.
15. She wants compensation for this neglect that resulted in the visit to hospital and having to catch up on the five years she lost in not knowing about her diabetes when she could have been doing something about it. She wants a minimum of £20,000 in compensation, service improvements and an apology.
16. Taking all of this into account, it seems Mrs I could make a claim of clinical negligence. A clinical negligence claim would not directly be able to get her an apology and service improvements, but this could be a by-product of a legal claim.
17. We have asked Mrs I if there are any reasons why she could not make a legal claim. Mrs I says she is happy to take the legal route. She says as the Practice’s letter said to contact us, she felt this was the first step she had to take.
18. Mrs I has not raised any barriers to legal action and in her complaint form to us, she says, ‘Legal action may be taken on the outcome of the Ombudsman service and also the cost of legal action.’
19. Mrs I says she may not be able to afford a legal claim. However, she could talk to no win no fee solicitors, even if it is just for advice, which she could do free of charge. If a legal firm started a claim with no win no fee funding, there would be no costs to Mrs I. After we explained this, she was happy to look into this route.
20. The amount Mrs I is looking for is larger than the amount we might usually recommend but this is something she might be able to get through the courts. As Mrs I wants a large amount of money, the costs of legal action would likely not be more than any award she might get.
21. Mrs I is within the three-year limit to make a legal claim, and in our view it would not be unreasonable for her to seek legal action on her case, having thought about her circumstances.
22. The courts can independently review the case and decide whether there has been any clinical negligence. It is also possible legal action could resolve Mrs I’s complaint by getting her the outcomes she wants, including service improvements and an apology as a by-product.
23. If Mrs I cannot get all outcomes she wants by making a legal claim, she can bring the complaint back to us. We would ask that she do so as quickly as possible, in light of our time limit.
24. By law, a person should normally complain to us within 12 months of when they first know of their complaint. We can put this 12-month time limit to one side if we think there is good reason to do so. We will think about any earlier decisions we have made that might have delayed the complaint.
25. We accept how important this complaint is and understand this has been a very difficult time for Mrs I and her family.