6. The Health Service Commissioners Act 1993 (the law) says we cannot investigate a complaint where the complainant could get the outcome they want by taking legal action, unless we think it is not reasonable for them to do this. This makes sure we do not interfere with matters that a court is responsible for.
7. We discussed Mrs R’s complaint with her to understand the outcomes she wants to put things right. She explained she wants a financial payment of £10,000 or more.
8. This amount is more than we would usually recommend in similar cases. A court can often recommend a larger amount of compensation than us and we do not want to stop her from being able to get what she is looking for.
9. We looked at Mrs R’s complaint twice in the past and recommended for her to look in to taking legal action. Mrs R said she had spoken to a solicitor who said she has a strong case and she should have come to them earlier.
10. Mrs R says the solicitor said because it was nearing the limitation period (the length of time for someone to start a claim - for clinical negligence claims it is three years from the date of the event or the date of the persons knowledge of damage, whichever expires later), they would not take on her case.
11. We asked Mrs R for evidence of this discussion and she was not able to give any.
12. When Mrs R came to us again after we told her in January 2023 that she should explore her legal options, she said she had spoken to three different solicitors.
13. We asked for evidence of this and she was able to give us evidence of speaking to one solicitors, who confirmed they would not take on the case due to the limitation period.
14. We asked for evidence of speaking to the other two solicitors and she said she could not provide this as she spoke to them by phone.
15. We reviewed Mrs R’s medical records in detail to find out when she became aware of the permanent nerve damage.
16. We found that on 20 October 2020 a consultant said this about electromyography (an EMG is a diagnostic procedure to assess the health of muscles and the nerve cells that control them) findings:
‘the EMG findings are not specific, but in this context the pattern is most likely to represent partial axonotmesis [an injury to the peripheral nerve of one of the extremities of the body] due to pressure on the sciatic nerve during hospitalisation’.
17. The records show Mrs R was aware of the ‘strange sensation’ as soon as she came out of the induced coma in July 2019 but, she says staff told her this would disappear shortly after being discharged from hospital.
18. When the sensation did not disappear Mrs R reported her symptoms and a neurologist (a specialist that treats conditions of the brain and nerves) did more tests.
19. Mrs R says she is now ‘permanently disabled’ and ‘I am always falling, usually when I stand up, as I cannot feel my left foot at all. This led to many falls, and still does.’
20. The records show it was not until October 2020 that a clinician wrote to a consultant neurologist to say that the symptoms she had been experiencing were most likely ‘due to pressure on the sciatic nerve during hospitalisation’.
21. We think this was the date Mrs R became aware that her symptoms were possibly permanent and a result of the induced coma.
22. We are aware that the solicitors Mrs R spoke to would not take on the case due to the limitation period. We think it is important for Mrs R to completely exhaust the legal route by speaking to more solicitors to see if they agree that the date she knew there was a problem was 20 October 2020.
23. If a solicitor agrees, they may decide Mrs R is within the limitation period and can start a legal claim.
24. We are aware Mrs R is nearing the end of the limitation period but by law we cannot look into the case until the legal route has been completely exhausted. We urge Mrs R to tell the solicitors about our view on her date of knowledge.
25. It seems Mrs R has a potentially strong clinical negligence claim and we want to make sure she is in the best possible position to achieve her desired outcome.
26. In some circumstances a court has discretion to extend the limitation period.
27. We need to see evidence in writing of Mrs R speaking to at least three different solicitors with this new information.
28. We recognise this decision may be frustrating for Mrs R, but because of the serious impact she has described, it is important that she has the best opportunity to achieve the amount of financial payment she wants.
29. We also reminded Mrs R about our time limit, as the law says a complaint must be made to us within a year of becoming aware of the problem. We can consider putting this limit to one side, if we think there are strong reasons to. This means that if she does return to us after speaking to three or more solicitors and being unsuccessful, we would take into account the decision we are making to close the case now. But, we would want to see that she had made efforts to progress things as quickly as possible.
30. In summary, we have decided we will not take further action on Mrs R’s complaint. We hope we have explained the thorough consideration we have given to our decision. We apologise to Mrs R for any frustration or disappointment caused.