8. 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. We have communicated this with Miss 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 into.
9. Miss O has not taken legal advice. We think she may be able to make a clinical negligence claim because she says she experienced physical and emotional harm caused by the delays in the Trust’s healthcare.
10. Miss O says her complaints are at level five and six on our severity of injustice scale (a scale we use to decide how much someone has been affected by what happened). She says she is no longer able to lead a normal life and a diagnosis may have been made sooner if care had been given to her sooner.
11. She says she has been left with an impairment rather than an injury that will heal over time, but her life will never be the same. She says she feels pain every day and it has got worse. She says she has experienced much distress because of the negligence of medical staff at the Trust.
12. She says she should attend her workplace two days a week but can only manage once a month and she may have to change employment. She says she can no longer move quickly and must take extra care for her safety. She is no longer fully independent and has spasms in her legs when she sleeps. Her symptoms have affected her health and wellbeing.
13. While we can make recommendations for financial payments, the amounts we recommend are usually lower than what can be achieved by legal action. We do not achieve financial outcomes like a court does and cannot award money for future costs like claiming employment losses. So, it seems that legal action would be the best route for Miss O to achieve her outcomes.
14. When speaking about legal action, Miss O says she wants to keep her health problems private and legal proceedings are public. She says making a legal claim may mean discussing personal medical details in a public place. Her claim may be private until a court hearing, if it was to go to court. If we investigated, information would be shared with the Trust. Although anonymised, we also publish our decisions for the public to read. We do not feel that wanting privacy is a reason for her to no take legal action.
15. Miss O says she is worried about the cost of a legal claim, she cannot afford it and she is not sure if it will be successful. Most clinical negligence claims are funded by ‘no win no fee’ agreements and she can talk about it with her solicitor. If Miss O takes legal advice and it is not successful, she can contact us and ask us to look at her complaint again.
16. Miss O says she wants to avoid the stress and anxiety of legal proceedings as it is about her personal health. We cannot say our investigation process will not be stressful for her. Miss O says the time and effort for legal processes could be too much We understand this but cannot say that our investigation process will not take time and effort from her. Taking legal action will mean having the support of a legal professional who has an interest in winning the case. That might mean that a complainant feels more supported than using our service as we cannot take sides.
17. Miss O says she contacted us because this was her preferred way of finding a solution. By law, we must consider any legal route available and if it would better achieve the outcomes wanted.
18. Miss O says she wants an apology and improvements to service which can happen in a legal case. The Trust may do a route cause analysis (to find the root causes of problems to find solutions) and she can ask her solicitor about this during the legal process. Miss O can contact us again after taking legal action if there is anything left that legal action could not achieve.
19. It is best and reasonable for Miss O to speak to a solicitor about making a clinical negligence claim.
20. Our decision is not made without recognition of the stressful circumstances Miss O faced. We understand this has been an upsetting time for her.