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 discussed this with Mrs C 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 in to.
9. Mrs C feels there was a potential breach in the Trust’s duty of care which may mean she has a clinical negligence case.
10. We think it is reasonable for Mrs C to look into taking legal action for the following reasons.
11. We discussed with Mrs C the amount of money she wanted and she was unable to give a figure. We shared our severity of injustice scale with her. This allows us to make consistent and fair decisions about any recommendations for payment that we may make. The scale can be found on our website. We explained to Mrs C how we thought her complaint would most likely be in line with level five on the scale and this is linked with a payment in the range of £8,000 to £9,000.
12. Mrs C has told us putting a price on the rest of her life has been something she has found extremely difficult but she would consider a realistic figure to be more in the region of £400,000 and £500,000, considering how her mobility has been affected. Mrs C said she would not be happy with the suggested amount of £8,000 to £9,000.
13. We do not underestimate how difficult her experience has been and while we fully appreciate this it is unlikely we would make a recommendation beyond the amount we think is reasonable. We usually recommend more modest payments as our focus is on making improvements to services. We do not award payments in the same way a court does and would not consider loss of earnings.
14. Mrs C has not told us about any barriers that would stop her from being able to get legal advice. She told us she has spoken to two solicitors who are looking at her case. Mrs C can discuss funding options with these solicitors, so cost does not have to be barrier to making a claim.
15. We understand it must be frustrating being passed back and forth but the law says we cannot consider a complaint where there is a legal route available.
16. We think it is in Mrs C’s interest to fully explore her legal options while she is still within the three-year period to make a claim. Mrs C can return to us if legal action is unsuccessful. She should return to us quickly if needed because we would need to consider our time limit.
17. We thank Mrs C for bringing her complaint to us.