Chelsea and Westminster Hospital NHS Foundation Trust

4. Mr A complains about the care and treatment he received from the Trust on 27 July 2021. Specifically, Mr A says:

• the surgeons did not conduct the operation on his right knee for which he had been referred. They also performed a procedure to which he did not consent, without a pre-operative assessment • the Trust caused two burns to his upper right calf during the operation, for which the surgeons denied responsibility. The Trust has not fully investigated, explained or accounted for the burns • the Trust discharged him from hospital without reviewing him, without an explanation of the procedures that had been carried out or without informing him he had been burnt. The surgeon’s discharge signature was at a time when the surgeon had already left the hospital.

5. Mr A also tells us that, following a meeting with the Trust on 27 January 2022, the Trust closed Mr A’s complaint without providing a final response and without completing the agreed actions.

6. Mr A tells us the impact these events have had on him, specifically:

• the pain in his right knee is worse than before the operation. He struggles to perform daily tasks and has been unable to return to work because of the pain • his treatment has been delayed and he is still awaiting a lateral release of the kneecap operation on his right knee for which he was originally referred • he suffers with stress from the prolonged, unresolved knee problems • his right calf is permanently scarred from the burns • he is frustrated because he does not know what procedures were carried out or how the burns happened • he is angry and frustrated the burns were not fully investigated and the Trust did not carry out the agreed actions • he had to attend his GP surgery every three days for approximately two months for wound treatment for the burns • he suffers with psychological effects from the burn scarring, including not feeling confident to wear shorts to go swimming with his daughter • he now has a lack of trust in doctors.

Mr A does not feel the letter from the meeting and final responses are personal and feels they are from a legal team.

7. Mr A tells us he seeks:

• a full explanation of the procedure on his knee on 27 July 2021, including why the lateral release of the kneecap was not done • an independent investigation to assess whether he received the correct treatment • a full investigation and explanation of how his calf was burnt during the procedure • service improvements • recognition of failings and an apology • financial redress.

9. The Health Service Commissioner Act 1993 states we should not investigate a complaint if a complainant has a legal route to explore it, unless it is not reasonable to expect them to pursue this route. Clinical negligence can take place where there has been a failure to carry out appropriate treatment and a patient becomes injured because of it.

10. Mr A complains to us the Trust failed to provide appropriate care and treatment during corrective knee surgery, and he is now in more pain than he was before. He also tells us he has permanent scarring from burns that happened during this procedure. Mr A says the Trust’s actions affected him both physically and emotionally. He was also unsatisfied with the Trust’s handling of his complaint.

11. We are sorry to hear about the issues Mr A has raised. During our conversations, Mr A told us the impact they have had on his day-to-day life and the difficulties he now faces. Mr A says the impact has been significant.

12. Mr A seeks financial compensation, an explanation of the procedures carried out on him and how the burns happened. He also seeks acceptance of failings, an apology and service improvements.

13. We discussed the financial outcomes Mr A seeks with him. He tells us he seeks significant financial redress but could not confirm a specific figure.

14. Based on the information provided and the clinical nature of the issues he complains about, we consider Mr A has the option to take legal action to pursue his complaint. We do not evaluate whether legal action would succeed but whether it would be a reasonable option for the complainant to consider.

15. In our discussions with Mr A, he said he is willing to pursue legal action and he is prepared to pay for the correct advice and representation. As the outcomes he seeks are potentially ones the courts could provide, this is a potential route for him to take.

16. We have also borne in mind that clinical negligence claims are subject to strict time limits following the date of the claimant’s knowledge of injury. Mr A therefore has limited time to pursue legal action if legal advice confirms he has a claim. Given the courts may potentially be better suited to providing the sorts of outcomes Mr A is seeking, we would not want him to lose his opportunity to explore this option.

17. We are satisfied it is reasonable for Mr A to pursue the possibility of taking legal action. We would not consider a complaint that may become subject to legal action, which appears likely in this case at this point.

18. We have discussed this information with Mr A to make sure he understands the reasons for our decision. We have also advised Mr A that, should a legal route not be possible or should he does not achieve all the outcomes he seeks through legal action, he can contact us again.

19. Mr A is aware any later approach would be subject to us considering the time limits set for us, along with our discretionary powers to set them to one side. Mr A should therefore make sure he completes his exploration of the legal options and, if he needs to, return to us without any unnecessary delays. We would then consider whether anything has changed, specifically in relation to outcomes sought and whether we are best placed to achieve them. We would not necessarily reconsider our view that the legal route is the most appropriate if there is no change in circumstances.

20. We hope this statement clearly explains how we have considered Mr A’s complaint and how we have reached our decision.

1. The Parliamentary and Health Service Ombudsman has carefully considered Mr A’s complaint about Chelsea and Westminster Hospital NHS Foundation Trust (the Trust).

2. We were sorry to hear about Mr A’s experience and the difficulties he is still facing. We recognise the distress they have caused him.

3. We consider Mr A has the option to take legal action on the matters he has brought to us. We go on to explain why.