East Kent Hospitals University NHS Foundation Trust

4. Mrs O complains about the care and treatment her husband, Mr O, had when he attended the Trust’s emergency department (ED) in November 2020 because of pain in his left leg.

5. Mrs O complains:

• the Trust did not admit Mr O on 5 November 2020 because there was no bed available • the Trust wrongly decided Mr O did not need to be admitted on 6 and 12 November 2020 • the Trust’s complaint responses were contradictory because it first agreed it had discharged Mr O in error on 12 November and then corrected this.

6. Mrs O says, as a result of this, Mr O experienced discomfort and distress during his wait in the ED on 5 November and further distress when he was not admitted to hospital on 6 and 12 November. She also says she experienced distress from Mr O’s premature death and the Trust’s response to her complaint.

7. Mrs O would like financial compensation for the financial impact Mr O’s premature death has had on her.

8. Mr O was in his late sixties, had type two diabetes and was a double leg amputee because of diabetic vascular degeneration (vascular disease includes any condition that affects the circulatory system).

9. He first attended the ED on 5 November 2020 with a ‘suspected diagnosis of osteomyelitis’ (a bone infection) of his left leg and was put under the care of the orthopaedic team.

10. He was examined and the orthopaedic team planned to admit him, do an MRI scan (magnetic resonance imaging is a type of scan that uses strong magnetic fields and radio waves to produce detailed images of the inside of the body) and to give IV antibiotics (through the veins). After a wait of several hours for a bed, Mr O became frustrated and discharged himself before getting treatment.

11. He attended the ED again the next day where the orthopaedic team again examined him, prescribed antibiotics and planned to do an MRI scan on an outpatient basis (without hospital admission). The team assessed Mr O as being clinically well and discharged him.

12. He attended the ED again on 12 November. By this time his condition had deteriorated (Mrs O says he was confused, incontinent and struggling with his mobility). The orthopaedic team examined him again. They had already arranged the MRI scan, referred him to the tissue viability team and prescribed more antibiotics. The team then assessed him as being clinically well enough for discharge.

13. On 13 November, Mr O was still unwell but did not want to return to the Trust. Mrs O took him by car to a different hospital where he was admitted to a ward.

14. Mr O then tested positive for COVID-19. Sadly he died in hospital later that month.

16. Mrs O feels if Mr O had been admitted to the ED at the Trust on 5, 6 and particularly 12 November 2020, when she says his condition had deteriorated, he would have received the medication he needed and would still be alive.

17. She feels the Trust was clinically negligent.

18. Mrs O could potentially get the compensation she is looking for by making a clinical negligence claim.

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

When deciding whether it is reasonable for a complainant to take legal action we must consider the amount of financial compensation wanted and if taking legal action would cost more than the potential gain.

20. We discussed with Mrs O the amount she would like. We sent her a copy of our guidance on financial compensation - our ‘severity of injustice scale’. We asked Mrs O where she thought her complaint and how she was affected fitted into this scale. Mrs O said, ‘whilst financially I have suffered, no monetary recompense can really make up for what happened’. But she felt her case met the highest level on our scale - level six.

21. We discussed how this level links to a large amount of compensation and how it is more in line with the amount that could be achieved by legal action.

22. Mrs O has not approached a solicitor about taking legal action. We asked her if there was anything that would stop her from doing this. She said she ‘would rather resolve the situation without involving more people and having to relive the situation on more occasions’. We understand this and how she has been through a very upsetting time. But we have not seen any other barriers to stop her taking legal action, or anything to suggest it is unreasonable to expect her to. A solicitor would be able to offer legal advice and help based on her specific circumstances.

23. Although Mrs O has not mentioned concerns with the cost of legal action, we explained she can approach a ‘no win, no fee’ solicitor. Based on the advice she gets, she can then decide what to do.

24. We gave Mrs O details of Action Against Medical Accidents (AvMA),who can give help and guidance on making a claim.

25. In summary, and in line with the law, we have decided Mrs O has the option to explore this legally and we will not be taking any further action on her complaint.

26. If Mrs O is unable to take legal action for any reason, she may come back to us and we could look at her complaint again. Mrs O should do this quickly because there are time limits that control whether we can look at a complaint.

1. The Parliamentary and Health Service Ombudsman has carefully considered Mrs O’s complaint about East Kent Hospitals University NHS Foundation Trust (the Trust).

2. We consider she could take legal action on the matters she has brought to us. For this reason, we have decided not to consider this complaint further.

3. We recognise this was an incredibly upsetting and stressful time for Mrs O and we would like to offer our sincere condolences for her loss.