University Hospitals Birmingham NHS Foundation Trust

4. Mrs O is complaining about these parts of the care and treatment her husband, Mr O, had from the Trust:

• when moving Mr O to help him to the bathroom, the nurses did not think about the length of Mr O’s oxygen tubing which meant the oxygen was snatched away from his face. Mr O had chronic obstructive pulmonary disease (COPD) which meant he needed permanent oxygen therapy

• it should not have attempted a pleural aspiration (a procedure to help with breathlessness and to relieve fluid in the lung area) on Mr O due to his existing health conditions. It also had to attempt the procedure twice as the first attempt was unsuccessful.

5. Mrs O says the shock of Mr O’s oxygen mask being snatched away from his face and him not getting the oxygen he needed led to a cardiac arrest (heart attack). Regarding the pleural aspiration, she says the Trust punctured Mr O’s lung on the second attempt which led to it deciding not to aspirate him because of the damage caused. Mrs O says her husband would have survived his stay in hospital had the Trust not attempted the pleural aspiration because he was responding well to antibiotics.

6. Mr O’s death was a massive shock for Mrs O as although he was suffering with ill health, he still led an active lifestyle, was socialising and loved life. It has been a very tough time for Mrs O.

7. Mrs O would like an acknowledgment of failings and a financial payment.

9. The Health Service Commissioners Act 1993 (the law) says we cannot investigate a complaint where as person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances.

10. We have discussed this with Mrs O to understand her complaint, 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.

11. Mrs O told us she believes Mr O died as a result of the treatment the Trust provided.

12. It seems Mrs O may have a legal claim of clinical negligence available to her. We have gone on to consider whether legal action would be able to achieve the outcomes Mrs O is looking for.

13. In trying to work out how much money Mrs O would like, we gave her information about our severity of injustice (SOI) scale. The scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of financial amounts we would usually recommend in those circumstances.

14. Mrs O feels the injustice for what happened with Mr O’s oxygen tubing falls within level four which is between £1,000 and £2,950. Regarding the pleural aspiration, Mrs O feels this falls within level six which is £10,000 or more. Level six cases are the most serious we see involving profound, devastating, or irreversible impacts on the person affected. This includes cases involving avoidable death.

15. Mrs O also expressed to us that although the main reason for making the complaint was ‘never about the money’, the time she has spent fighting this case has changed her mind. She thinks the only way to ‘get any kind of justice’ is to get a payment.

16. We explained to Mrs O that as she was looking for a large amount of money, this is something a court can potentially achieve for her. This is not to say we have not recommended amounts that fall into level six, as we look at things on a case-by-case basis. A court can also achieve her other desired outcome which is for the Trust to acknowledge its failings. We asked Mrs O if there were any barriers to her taking a legal route.

17. Mrs O explained that during the ‘early days’ of realising she had a complaint, she approached medical negligence solicitors. She says she gave them a brief outline of her complaint but was told they do not take on a case unless they have more than a 50 percent change of winning.

18. She says the solicitors also seem to think that her husband needed aspirating, which Mrs O thinks should not have happened. Mrs O says she has not approached them since so there is a possibility they, or a different firm, would have a different opinion if more information was given to them.

19. Mrs O has not made us aware of any barriers to her taking legal action. Overall, as there seems to be a legal route that Mrs O can explore and there are no barriers to stop her from doing this, we cannot proceed with an investigation at this stage. If Mrs O is not able to take legal action after getting legal advice, she can come back to us.

1. We have carefully considered Mrs O’s complaint about University Hospitals Birmingham NHS Foundation Trust (the Trust). We are sorry to hear about the events complained about and the impact this had on Mrs O.

2. We think Mrs O can take legal action on the matters she has brought to us. This is because Mrs O has told us she thinks Mr O’s death was a result of the treatment provided by the Trust. We think the outcomes she is looking for can be achieved through legal action.

3. We appreciate this may not be the decision Mrs O was looking for at this stage. If after pursing legal action she is unable to proceed, she can return to us.