9. The Health Service Commissioners Act 1993, s4 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.
10. We have discussed this with Miss A to understand her circumstances and the outcomes she seeks. Whilst we do not consider whether legal action would succeed, we do consider whether it would be a reasonable option for Miss A to take.
11. Miss A claims the biopsy was carried out on the wrong leg and has caused her pain and suffering she did not have before. She also claims it has exacerbated previous medical conditions and caused her distress and upset. She is looking for financial remedy as a result. It therefore appears she has a legal remedy open to her. We therefore turned to consider whither this is reasonable for her to pursue.
12. We provided Miss A with information on how we assess financial remedy and asked her to consider our SOI scale. After doing this, Miss A responded and said she would like to achieve £3,000 - £9,950 which is level five on our SOI scale. Miss A said she feels this level is appropriate because of the significant and long lasting impact on her. She indicated she believes this sits more appropriately with the long term impact described in level five.
13. We explained to Miss A if we were to find failings and be able to link the impact she claims in the scope to these, her complaint is more likely to sit within level four of the SOI which is £1,000 - £2,950 because whilst this has impacted her ability to live a relatively normal life she has indicated this was particularly impactful for a few months. We do understand indicated a longer-term impact as well but in the round this seems to sit more accurately with level four.
14. Whilst we may be able to achieve a financial remedy it seems likely what we could achieve would fall short of what she is looking whilst , the legal process could result in Miss A achieving financial remedy more in line with what she is looking for. Furthermore, if we are not able to evidentially link the entirety of the impact she claims to any failings we may find, Miss A may be looking at significantly less.
15. We appreciate Miss A also seeks an acknowledgement of failings and an apology from the Trust, and this is something she could achieve as a by-product of pursuing a legal claim. However, if appropriate, we could also look at the complaint again if there remains any further action required following legal action.
16. We asked Miss A if there was anything preventing her from approaching solicitor firms about her complaint and she said she does not have the funds to pay solicitor fees. We explained to Miss A she has the option to approach ‘no win no fee’ solicitors. She indicated she was aware of this option.
17. Miss A also said she is trying to get to the bottom of her complaint because it is causing her stress. She said her day-today life is difficult with the conditions she lives with and she does not want any additional worry. Miss A said she has tried to do the right thing complaining to the NHS but is still left wondering what went wrong.
18. We recognise Miss A may find the legal process daunting and would rather the Ombudsman deal with her complaint. We have considered this and a solicitor would expect Miss A to engage with them in the same way we would expect her to engage with us. This would primarily by phone and whilst we do appreciate some cases proceed to court, we note a large amount are settled without the need to attend court.
19. Whilst we fully appreciate Miss A’s concerns about legal action and the time this may take, we do not feel this is enough to say the legal process is not reasonable route for her to pursue.
20. We have asked Miss A to approach a selection of firms in order to explore legal remedy. If she is unable to obtain representation, she can come back to us. However, we have asked she provide responses from them in writing as to why they have chosen not to accept her case, should this be what they decide to do. We will also signpost her to organisations who may be able to provide some additional support and guidance in pursuing a legal claim if this is something she feels she would benefit from.
21. We will remind Miss A of our time limit and explain if she does return, we will have to consider the complaint again in line with our process and the law that covers how we work. We therefore encourage Miss A to approach solicitors as soon as possible and return to us as soon as possible to avoid her complaint being considered out of time. We do have discretion to put our 12-month time limit aside, however, we can only do this if we feel it is appropriate.
22. We appreciate this decision may not be what Miss A was expecting when she came to the Ombudsman. We recognise the impact the issues Miss A has discussed with us have had on her, and we acknowledge she has been through a challenging time. We hope Miss A recognises the careful consideration we have given her complaint, and she is re-assured she can come back to us and ask us to look at her complaint again in the event the legal route is not successful for her.