5.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.
6.We do not consider whether legal action would succeed, only whether it would be a reasonable option to look in to.
7. In general terms, clinical negligence takes place when a person suffers harm because of mistakes in their care and treatment. Failure to diagnose and/or to carry out appropriate treatment can also amount to negligence.
8.Clinical negligence can only by established in the courts. Financial compensation for clinical negligence can only be awarded in the courts.
9. Mrs P believes her husband was put at risk, suffered serious harm, in fact may have lost his life, because of fallings in his care. Briefly, those were the delay in making the correct diagnosis and commencing the appropriate treatment.
10.If Mrs P is correct and there were significant failings in Mr P’s care which caused him harm, or which could have caused him harm; or which may have caused, or contributed to, his death, Mrs P would have a cause of action for clinical negligence.
11. With all of that in mind, it appeared to us that legal action was something Mrs P could explore, given the serious nature of her concerns, what she believed the significant impact of those was on Mr P, and the financial compensation she is seeking.
12. Where people have the option to pursue legal action, the law says we should expect them to do that first, rather than look at the complaint ourselves.
13.Mrs P did not give us any reason she would be unable to explore legal action. She told us she was concerned about the possible cost of legal action, particularly if her claim was unsuccessful, and we understand her anxiety about that. It is, however, possible in some cases to obtain ‘no win no fee’ legal representation. We think that is something Mrs P needs to explore before we can get involved.
14.There are several independent and charitable organisations who can assist people who wish to make legal claims against the NHS. We have shared details of those with Mrs P.
15.Mrs P believes the care provided in this case was negligent and incompetent. A court will be able to carefully consider and assess whether it was and whether Mr P’s death can be attributed to that, as well as determining accountability, including awarding an appropriate amount of compensation if applicable.
16.The general rule of thumb is that people have three years to make a medical negligence claim, although there is some flexibility on that timing. We were aware in considering this case that Mrs P is complaining about events which took place in 2022, so time is running out in relation to her ability to take legal action. We did not want to delay making this decision any longer for that reason.
17.If Mrs P does not achieve all the outcomes she is seeking via legal action, or she does not take legal action, she can bring her complaint back to us to consider again. If she chooses to bring her complaint back to us, she should do us promptly as we will need to consider our time limits. At that point, we will need to consider the outcome of her attempt to take legal action and consider afresh the outcomes she is seeking from our involvement.
18. In summary, we decided to take no further action on this complaint because Mrs P has an alternative legal route available to her which we think she should explore first. We hope we have explained the thorough consideration we have given to our decision and clearly outlined the reasons for it.