Inappropriate Surgery
10. The Health Service Commissioners Act 1993 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 Miss S to understand her circumstances and the outcomes she is seeking.
11. Miss S says the incorrect surgery being performed, without her consent, has led to physical injury and associated distress. She also says she has not worked since the surgery and is looking for financial remedy as her desired outcome.
12. It therefore appears Miss S may have grounds to pursue a clinical negligence legal claim. Our service model guidance says we do not consider whether legal action would succeed but whether it would be a reasonable option to look in to. We therefore turned to consider whether this would be reasonable for Miss S to pursue this.
13. Miss S said she is looking to achieve the higher end of level five on our Severity of Injustice (SOI) scale because she has been left with permanent scarring and injuries, and because of the impact this has had on her mental health. Miss S said she is housebound, suffers with panic attacks and has no social life. She says this has had a marked and damaging effect on her and it could be said to some extent it has affected her ability to live a relatively normal life.
14. Level five on our SOI scale is between £3,750 and £12,450. We know Miss S is looking to achieve the higher end of this and whilst this is something we may be able to achieve if we can establish failings and link to the impact she has described to us, there is the possibility she could achieve more through legal proceedings. Miss S also seeks the cost of private treatment to investigate her ongoing symptoms and if anything can be done to make her better. Miss S does not know how much this would be or come to, however, she seeks this in addition to what she is seeking for her pain and suffering. Similarly, whilst we may be able to make a recommendation for expenses we would need to see receipts, or suggest an enhanced financial remedy to reflect the further amount sought. As such, it is more likely a legal action would achieve the total of the amount sought, if the claim was successful.
15. We asked Miss S if there are any barriers preventing her from going down the legal route and she said not. As such, considering the outcomes she wishes to achieve, it appears reasonable for Miss S to explore legal action.
16. We will ask Miss S to approach solicitor firms and come back to us with their responses in writing as to why they have chosen not to take on her case if this is what they decide to do. We will also make her aware she can approach no win no fee solicitors if she is concerned about having to cover legal fees and will provide her with some information about organisations, she can approach for additional guidance on how to make a claim should she wish to explore this.
17. If the legal route proves to be unsuccessful for Miss S and she returns, we will consider her complaint again in line with our processes. We hope Miss S is re-assured she can come back to us and will make her aware of our time limit.
No follow up
18. Miss S also says the Trust has not provided her with a follow up appointment since she raised her complaint. Miss S feels she has been punished for raising a complaint and the Trust has left her to suffer. As such, this particular issue falls more within complaint handling.
19. Our service model guidance 3.10 says there will be occasions when we decide there are other reasons why we should not investigate a complaint made to us. The main part of Miss S’s complaint is open to legal proceedings, however, all of the impact she claims following this is interlinked.
20. As such, it would not be reasonable or proportionate for us to look at this part of her complaint in isolation at this time. If Miss S returns to us after seeking legal advice and this is not successful for her, we would also be able to consider this part of the complaint again at that time. Alternatively, she could return to us following the conclusion of legal action but we should emphasise she would need to do this as soon as possible to minimise any issues with time limit. As above any further consideration would be in line with the law that governs how we work.
21. We appreciate this may not have been what Miss S was expecting when she came to the Ombudsman. We hope we have clearly explained the reasons for our decision and Miss S is re-assured she can come back to us to ask us to consider her complaint again if approaching solicitors is not successful for her.