Injections / MRI scans
10. The Health Service Commissioners Act 1993 (the law) says a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year unless, we consider there is a good reason to.
11. Mr Z complains the Trust tried many times on 16 July 2021 to give epidural injections and this was painful and caused him significant stress. He was aware of this incident and had reason to complain at the time. This complaint needed to be made to us by 16 July 2022. We did not get his complaint until 26 September 2023, so this is out of time by 14 months.
12. Mr Z complains he had a negative reaction four to six weeks after the procedure. This complaint needed to reach us by 1 September 2022. We did not get his complaint about this until 26 September 2023, so this is out of time by 12 and a half months.
13. Mr Z complained to the Trust on 28 March 2022 and got its final response on 23 May. We got Mr Z’s complaint on 26 September 2023 which is two years after he first knew there was a problem, and 12 months beyond our time limit to complain.
14. We asked Mr Z what made him complain in March 2022, eight months after his appointment on 16 July 2021. He said he was getting a second opinion and as his pain was irregular, he did not realise until March 2022 that his life had changed and how significant the effect of the procedure was.
15. The Trust’s complaint response confirmed it was its final response and directed him to complain to us as soon as possible because, ‘there are time limits for looking into complaints’.
16. Mr Z contacted us on 11 August 2022 telling us he had received a second response which he was disgusted with. We asked him to send us this response and fill out a complaint form. Mr Z then contacted us 13 months later on 13 September 2023 advising he was having issues with the complaint form and stating he had concerns about another Trust. We informed Mr Z these concerns were separate to his complaint about the Trust.
17. We asked Mr Z about the gap between 11 August 2022 and 13 September 2023 and he said he was waiting for his results from a pain management clinic. He said he felt its view was important which is why he delayed making his complaint to us.
18. Waiting for further information about his condition is not a good enough reason to delay making his complaint to us. Although Mr Z did not fully understand the clinical impact, he did think something had gone wrong. What he has told us does not justify the 13-month delay in getting his complaint to us.
19. We also considered the time taken by the Trust to respond to Mr Z’s complaint. It took two months from Mr Z submitting his complaint which we do not find to be excessive. It is also within the six months response time set out in the NHS Complaint Regulations 2009.
20. We recognise Mr Z has been through a difficult time with his health issues but we have seen nothing that allows us to set aside our time limit and justify the 13-month delay in making his complaint to us.
21. Because complaints are out of time, we will take no further action on them.
Investigations
22. The law says we cannot investigate a complaint if there is (or was) an available legal route unless it is (or was) unreasonable for them to do this.
23. Mr Z does seem to have a potential legal claim available on this part of his complaint. This is because he claims the lack of regular MRI screening and consideration of his medical history meant he was given a procedure that caused him significant harm and he has been affected physically and is unable to work.
24. Mr Z says he wants a payment for the pain and loss of earnings. Based on this we understand Mr Z could make a clinical negligence claim. Only a court can make a finding of clinical negligence.
25. We asked Mr Z whether there are any barriers that would prevent him from taking legal action. We do not consider whether legal action would be successful, only if it is reasonable to look into. Mr Z expressed his preference for us to investigate but did not tell us about anything like cost that would prevent him from at least looking into his legal options.
26. The law says complainants must consider legal routes first. Mr Z can contact us again if legal action is unsuccessful but we still would still need to consider our time limit.
27. Mr Z has also told he would like an apology and service improvements as an outcome to his complaint. Financial compensation is the main outcome of court action, but apologies and improvements can be brought about by legal action.
28. We think it is reasonable for Mr Z to take legal action and we have seen no barriers that prevent him from doing this.