Spinal anaesthesia and surgery
12. 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.
13. We have discussed this with Ms E to understand her complaint and the outcomes she wants. We do not consider whether legal action would success but whether it would be a reasonable option to look into.
14. We have first considered whether it appears there may be a legal remedy available to Ms E. An individual may pursue a clinical negligence case when the clinical care they received fell below medically acceptable standards, and they suffer an injury as a result. This can be a physical injury, or psychological.
15. Ms E has complained the Surgeon and Anaesthetist did not explain to her in enough detail how the spinal anaesthesia would be administered. She says has had a lasting impact on her wellbeing. Ms E has also complained that the Surgeon did not carry out the surgery correctly on her leg. She says she has experienced unexplained complications and there has been a detrimental impact on her physical and mental health.
16. Considering this, we think Ms E 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 she is seeking.
17. As an outcome to her complaint, Ms E has told us she would like a financial remedy and service improvements.
18. In trying to determine how much financial remedy Ms E is seeking as an outcome to her complaint, we provided Ms E information about our Severity of Injustice (SOI) scale. The scale contains six different levels of injustice that a couple 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.
19. Ms E feels her complaint falls at the higher end of level five (£3,750 to £12,450). As Ms E is looking for a significant amount of amount, this is something a court can potentially achieve. This is not to say that we have not recommended large financial remedies, as we consider things on a case-by-case basis.
20. Ms E is also looking for service improvements as an outcome to her complaint. A court cannot directly achieve this, but improvements may occur as a byproduct of any successful legal action.
21. It therefore appears Ms E could achieve the outcomes she is seeking by pursuing legal action. We have next considered whether there would be any barriers to Ms E taking legal action, or any reason why she could not explore legal action.
22. Ms E has told us the police are currently investigating part of the case, in relation to the administration of the spinal anaesthesia. She has said that, depending on the police findings, she is planning to take legal action in relation to this part of her complaint.
23. When we spoke to Ms E to discuss her complaint, she explained the main issue is regarding how the surgeon or anaesthetist administered the spinal anaesthesia. Ms E says she was ‘subjected to sexual misconduct and inappropriate touching’. We were very sorry to hear of this.
24. We have considered the recent information Ms E has given us about what investigations are currently ongoing (police) and what actions she may take (civil). As such, we think it is reasonable for her to pursue a legal route in relation to her concerns about how the spinal anaesthesia was administered.
25. There do not appear to be any barriers to Ms E in pursuing any potential legal action. This is because Ms E is aware of, and is seemingly willing to, take civil action against the Trust if the police investigation does not proceed. Ms E strongly believes the Surgeon and Anaesthetist inappropriately touched her which is something civil action can address.
26. Given it appears Ms E is able to pursue legal action in relation to one part of her complaint, we have seen no reason why she could not pursue this in relation to the second part. It appears there is a legal remedy available to Ms E’s concerns that the clinician did not carry out the surgery correctly, and that this may achieve the outcomes Ms E is seeking.
27. Overall, it appears a legal remedy is available in relation to two parts of the complaint, and Ms E may be able to achieve the outcomes she is seeking through legal action. As there are appear to be no barriers for her to do this, we think it is reasonable for her to pursue legal action.
28. If Ms E is unable to proceed in taking legal action, for example because legal firms do not want to take on her case, or if the courts are unable to provide all her outcomes, she can return to us. We would need to see evidence that she has attempted to pursue legal action.
29. We have made Ms E aware about our time limits as we are unable to investigate complaints brought to us 12 months after someone has become aware of the problem. We can put this time limit to one side if we think there is a good reason to do so.
Aftercare
30. Before we decide to undertake a detailed investigation into a complaint, we consider whether there are indications something has gone wrong. To do this, we consider what should have happened, and compare this to what did happen. Having done so, we have seen no indication that something has gone wrong here.
31. Ms E complains she faced difficulty in accessing aftercare and rehabilitation after her surgery.
32. The Trust explained that it does not have control over where the ambulance service brings patients in a time of emergency. It also says that for patients who arrive in its A&E department, they continue to receive treatment there without transferring to another place if possible. The Trust said that based on Ms E’s postcode at the time, Homerton Hospital covers that area.
33. The General Medical Council (GMC) provides guidance on ‘Good Medical Practice’. Section 15c of this guidance says that doctors must refer a patient to another practitioner when this serves the patient’s needs.
34. Approximately a month after Ms E’s surgery, the orthopaedic surgeon saw her in his clinic. The notes of this appointment show Ms E expressed concern about the distance between her home and the Trust. The orthopaedic surgeon advised Ms E that there was a virtual physiotherapy service which she could use due to the distance of the hospital to her home. He also advised her that she could ask her GP to refer her to local community physiotherapy.
35. Based on the information in the records, the actions of the orthopaedic surgeon appear in line with the GMC guidance. This is because he advised Ms E of the different services she could access, to help her recovery, that are closer to her home address. As such, there are no indications of failings here.
36. We acknowledge the difficulties Ms E experienced in living so far away from the Trust. We are reassured the Trust took steps to try and assist Ms E with this, and have seen no indication something went wrong here. We understand how important this complaint is to Ms E, and we hope our explanations in this statement helps Ms E understand our decision at this time.